New Jersey’s Advisory Committee on Judicial Conduct found no “anti-gay bias or other improper judicial conduct” on the part of a Municipal Court judge in Palisades Interstate Park when he concluded during a trial last year that because a lewdness defendant was gay he was in the park to have sex.
“The committee reviewed the entire record in this matter and found no abuse of discretion on the judge’s part,” wrote John A. Tonelli, the committee’s chief investigator, in a January 26 letter to the man who filed the complaint against Steven J. Zaben, the judge.
The complainant, a 44-year-old gay man, sent his complaint to New Jersey’s attorney general last year and it was forwarded to the committee. He charged Zaben with making “prejudicial comments,” giving “excessive penalties” to gay men convicted of lewdness in the park, and refusing to accept pleas to lesser offenses.
He included copies of the stories published by Gay City News on the lewdness arrests in the park with his complaint. The man’s 41-year-old partner was arrested for lewdness in the park in 2004.
While the complaint was wide ranging, the committee focused only on a June 2, 2005 trial in the court, which hears low-level cases and traffic violations that are committed in the park, which was the subject of a Gay City News story.
“The remarks that were attributed to the judge in the [Gay City News] newspaper articles were actually testified to by the defendant and were critical to addressing the question of credibility,” Tonelli wrote.
In a June 15 response to a follow-up letter from the complainant, Tonelli wrote, “With regards to the remarks that were attributed to the judge in the newspaper articles, those remarks were actually the defendant’s. The judge merely recited that testimony in conjunction with delivering his decision in the matter.”
Gay City News, which was present at the 2005 trial, accurately quoted all of the participants. Tonelli declined to comment when reached by telephone.
“While the committee is concerned with the perception that is created by the newspaper articles, it does not find, after conducting an independent review of the record, that the judge exhibited an anti-gay bias or other improper judicial conduct,” Tonelli wrote in the January 26 letter.
During that trial, Zaben heard two versions of a June 9, 2004 lewdness arrest — one from Thomas Rossi, the detective who has made many of the lewdness arrests in the park, and the other from the 43-year-old defendant who does not know either the man who complained to the committee or his partner.
Rossi testified that the defendant initiated a conversation with him, followed him down a trail in the park, and then, “He unzipped his pants, he took out his penis, and he began to masturbate.”
The defendant testified that he went to the park to have lunch. Rossi stared at him intensely when he first pulled into the parking lot and then initiated a conversation, the defendant said. Rossi kept inviting him to move to a secluded spot in the park and eventually urged him to “Show me what you got...Take it out, show me what you got.”
At that point, the defendant said, he unzipped his pants and exposed his penis for “two seconds.” He was then arrested.
Presented with these two versions, Zaben believed Rossi. In finding the defendant guilty, Zaben said the defendant “perhaps had another agenda” other than eating lunch. The defendant was there “perhaps to have some type of encounter” and his conclusion was supported “by virtue of the fact that he said he is gay,” Zaben said.
The defendant never said he went to the park for a sexual encounter during the four-and-a-half hour trial. Rossi, the only other witness, gave no testimony as to why the defendant was in the park.
The complainant, who asked that he not be named because that could identify his partner, said the committee’s response was inadequate.
“I felt that they were just utterly dismissive,” he said. “It felt like they already had a stance or a decision made.”
Palisades Interstate Park stretches along the Hudson River from Fort Lee in New Jersey to Bear Mountain in New York. The police force in the New Jersey section made 37 lewdness arrests as of June 10, 2005 and 95 in 2004, according to a 2005 article on northjersey.com.
The complainant also objected to the committee’s focus on just one case.
“One out of the 132, that’s not very comprehensive,” he said. “At least 132 men were arrested and they looked at one case. That’s not comprehensive.”
Zaben has handed out harsh sentences in lewdness cases that have included a roughly $1,000 fine, a five-day suspended jail sentence, two years on probation, a two-year ban from the park including use of the highway in the park, and, in some cases, court-supervised psychiatric counseling. Some recent sentences have been lighter.
A heterosexual couple who were arrested while having sex in a car in the park received far more lenient sentences than those given to gay men who briefly exposed themselves.
Daniel J. O’Hern, the committee’s vice chair and a lawyer with Becker Meisel, a Red Bank, New Jersey law firm, said that, by law, the committee’s proceedings are confidential unless it finds probable cause in a case and refers that case to a higher court. Calls and e-mails to committee staff and other members were not returned.—Duncan Osborne