Judges are known for their authoritative words from the bench as fact-finders in civil and criminal matters. They are not typically known for their eyewitness testimony.
In an event that is especially rare in Connecticut, a Superior Court judge will be called upon to testify in a criminal trial of a Sherman man accused of trying to bribe the judge. The state's case against Dominic Badaracco the trial had been originally scheduled for this month, but has been pushed back to early next year relies heavily on the testimony of Superior Court Judge Robert Brunetti.
Badaracco, 76, has been identified as a suspect in his ex-wife's disappearance more than 28 years ago. From August 2010 until early this year, a one-man grand jury an anonymous Superior Court judge considered evidence and decided not to file murder charges. However, Badaracco was nonetheless arrested for offering Judge Brunetti $100,000 to help influence the grand jury probe.
Through his defense lawyers, Richard Meehan and Ed Gavin, of Meehan, Meehan & Gavin in Bridgeport, Badaracco has denied the bribery charge and awaits trial. In recent weeks, the venue was moved to avoid prejudicial publicity from New Britain, where Brunetti now hears criminal cases, to Middletown. A pre-trial hearing is scheduled for the first week of December before Superior Court Judge David Gold.
Connecticut courts, like those in other states, have long discouraged private attorneys and prosecutors from calling judges as witnesses unless there is a compelling need for their testimony. At the same time, a judge is not automatically disqualified from testifying by virtue of his or her office.
When the case goes to trial, Judge Brunetti will be asked by prosecutors to describe Badaracco's financial offer. Badaracco's lawyers will then get an opportunity to cross-examine Brunetti. Defense attorney Gavin declined to share any thoughts on what it might be like for a defense attorney to try to challenge the testimony of a judge "because I will probably be doing it." He did say, because the judge is a fact witness, there is no way to preclude his testimony.
Other lawyers who have no involvement in the case don't envy Badaracco's defense team.
"It's a very rare occurrence" for a judge to testify and face cross-examination, said Alan J. Sobol, a partner at Pullman & Comley's Hartford office and a former assistant U.S. attorney. "I think [having a judge as a complainant] is absolutely challenging for attorneys involved, particularly the defense."
One challenge for the defense is that most jurors will hold the judge in high esteem, said Sobol. Since many cases come down to the credibility of witnesses, "from a lay person's perspective, I think going in, credibility would tilt towards a sitting judge."
Another challenge with cross-examining a sitting judge, Sobol said, is finding a balance that avoids violating rules of professional conduct while advocating for the client as zealously as possible. For instance, the rules of professional conduct require that a lawyer avoid making comments concerning a judge's "qualifications or integrity."