Rose Town Justice “censured” for dropping DWI charges against enlisting soldier

Can recruits into military service be given a pass on pending arrests to still qualify for enlistments?

The New York State Commission on Judicial Conduct has publicly censured Town of Rose Justice Donald W. Ballagh . In a written complaint, dated November 7, 2007 and released this week by the Wayne County District Attorney's Office, the Commission found that Town Justice Ballagh wrongly dismissed and reduced charges of a Driving While Intoxicated charge involving a 21 year-old man, arrested on June 4, 2006.

In a complaint filed by the Wayne County District Attorney's Office, it was claimed that Ballagh, who has served as the Rose Justice since 1984, was contacted by United States Army recruiter Sergeant Kevin B. Slish, following the arrest of Sean Gardner.

The recruiter, according to Commission documents, was contacted by Gardner, who decided to enlist in the Army with an induction date of July 19, 2006. Gardner was informed that an alcohol-related conviction would significantly delay the time of his enlistment.

Army Sergeant Slish “communicated” with Ballagh in July of 2006 and asked the Judge to accelerate Gardner 's court appearance, from an August date.

Justice Ballagh moved Gardner 's case up on the Court schedule and never notified the Wayne County District Attorney's Office. During the court proceedings, the judge called the Army recruiter and discussed with him the effect that a reduction of the DWI charge to a lesser crime would have upon Gardner 's enlistment.. Ballagh was told that a conviction for any alcohol-related offense would delay enlistment for a year from the conviction date.

Justice Ballagh, without conferring with the District Attorney's Office, dismissed an Unlawfully Dealing With a Child charge that Gardner also faced for having an underage passenger in his vehicle at the time of his arrest and then reduced the DWI charge to a traffic infraction of Failure to Obey a Traffic Control Device. Gardner was fined $205 and a surcharge and was released.

Ballagh, through his attorney, Edward Fiandach, stated his motivation for the elimination of the DWI charge was “a desire to give a young defendant the chance to straighten out and improve his life by entering military service...”

Ballagh, in the Commission documents, also admitted that it was improper for him to excise the District Attorney from the proceedings and otherwise to circumvent the procedures he was sworn to uphold. The Rose Justice promised not to repeat such conduct in the future.

The Commission, in their decision, stated that the Town Justice's motivation was no excuse for disregarding the statutory requirements.

So, what is possibly wrong with a town justice trying to give a young man who decided to enlist a break?

According to Wayne County District Attorney Rick Healy, his office and police have been fooled by those arrested for myriad crimes by military recruiters anxious to fill their ranks. “We have had cases where a person either said they were enlisting, or had enlisted and never did. We have also had cases where a person has enlisted only to leave after a few weeks. We cannot restore the charges against someone in those cases. In cases where this has happened, the person gets a free ride on the crime. I doubt the citizens of Rose think it is proper for a soldier, or a potential recruit to drive drunk in their town.” Healy said his office monitors each and every DWI arrest and subsequent court case for that very reason.

Wayne County Sheriff's Lieutenant Robert Hetzke, has said that they have had defendants, even ones with heavy drug use backgrounds, use the military enlistment card to avoid prosecution. “Like the military really wants someone with a drug problem.” “It is not unusual for us to go along with such a case, but only on a case-by- case basis,” commented the County District Attorney . Healy said his office has asked for, but has not received, a written policy on just what the military will accept, or not accept, as far as a criminal record, probation, or cases pending for recruits signing up for service.

Newark Army Recruiter Sergeant 1st Class Robert Heintzelman said it is an Army rule that they are not authorized to process anyone with a pending civil or criminal matter, including something as simple as jaywalking. No one is inducted into the military who is on probation, or with a conditional discharge. “We, as recruiters, are not allowed to contact a judge, policeman, or probation officer. They can contact us to confirm whether someone has enlisted and their status,” said the Sergeant. He added that his office is occasionally contacted by a probation officer for such information.

Sheriff Richard Pisciotti said, in his younger days he could recall taking a defendant before a local town justice and the justice giving the defendant a choice of either going to jail or joining the service. That happened a lot, years ago,” recalled the Wayne County Sheriff.

Rose Town Supervisor Lucinda Collier, said Justice Ballagh had talked to her about the pending case against him, but the Town board was awaiting a final report from the Commission. “He did something he was not supposed to do, but he (Ballagh) feels he did the right thing for the boy, irregardless,” said Collier.

Justice Donald Ballagh could not be reached for comment. Public censure is little more than a slap on the hand by the commission. The strongest penalty the Commission can hand down is calling for the removal of a justice in more extreme cases.

Sergeant Heintzelman said Gardner has turned out to be a model soldier and was selected for the hometown recruiting program out of 400 recruits back in August. He is currently stationed at Fort Hood.