New York court officials have begun a review of recent cases handled by a State Supreme Court judge forced to retire this summer because of early onset Alzheimer’s disease.
The state’s chief administrative judge, Lawrence Marks, said the review would include all decisions or rulings signed by ShawnDya Simpson while she was on medical leave — dozens of Civil Court matters from Sep. 1, 2019 to Jan. 8, 2020. Simpson, 54, did not receive a formal Alzheimer’s diagnosis until early 2020, and her retirement was not announced until late July this year.
This week, ProPublica reported on Simpson’s handling of one of the most noteworthy cases during her last months on the bench: a motion to vacate the murder conviction of Nelson Cruz, who was 16 when he was first accused of killing a man in the streets of Brooklyn. Simpson had initially denied Cruz’s latest claim of innocence, but then granted him a hearing at which he and his lawyers presented witnesses and other evidence they said warranted reversing his 1999 conviction. Simpson again denied Cruz’s motion, only to say she was open to hearing the merits of the case reargued. She then immediately went on medical leave and never again physically took the bench.
Cruz’s lawyers came to suspect Simpson had been ill during what they said was her erratic handling of the case, and have now filed in both federal and state court seeking to have her denial of Cruz’s bid for freedom vacated. Cruz’s case in August was formally assigned to another State Supreme Court judge, and is not part of the review announced by state court officials.
The Brooklyn district attorney’s office has stood by Cruz’s conviction, and has argued in court filings that Simpson was not impaired during her handling of the case. Simpson, a former prosecutor in the Brooklyn office, in 2003 became one of the youngest New York judges ever elected to the bench; she won election to State Supreme Court in Brooklyn in 2016.
By 2018, though, Simpson had become the subject of complaints from lawyers and others — claims that she was intemperate and unable to reliably show up in court on time, or at all. Top administrative judges as a result moved her to the Bronx that year, and she handled both civil and criminal matters in the borough until her retirement.
Lucian Chalfen, a spokesman for the Office of Court Administration, said the cases Simpson continued to handle while on leave for an undetermined medical issue involved only civil matters — a universe that could include matrimonial cases, labor disputes, medical malpractice cases and more. Asked how many cases she had issued decisions or rulings on over the months under review, Chalfen said, “A fair number, but not hundreds.” He said they were chiefly “routine matters.”
Asked if it was typical for judges on medical leave to still be rendering decisions in cases before them, Chalfen said it was not unusual, saying a judge who had broken their leg, for instance, could still perform some duties.
Chalfen said the review had been limited to Simpson’s time on medical leave on the advice of the State Commission on Judicial Conduct. The commission had opened an investigation into complaints against Simpson in October 2019, and it was that investigation that ultimately led to the discovery of Simpson’s illness and her agreement to retire.
“When judges take medical leave, it would seem prudent to know the reason before allowing them to continue deciding matters on their dockets,” said Robert Tembeckjian, the administrator of the judicial conduct commission. “While a physical injury may not be cause for concern, a serious cognitive impairment should be.”
Chalfen said court administrators had inquired of Simpson about the reason for her leave, “but never got a direct response.”
Tembeckjian said that the commission had recommended that OCA look at Simpson’s cases decided while on leave, but that such a recommendation amounted to the limits of its authority to compel a review of any judge’s decisions.
“The Commission’s authority is limited to disciplining judges for misconduct or retiring them for disability,” he said in an email statement. “We are not an appellate court and have no power to reverse, remand or reconsider the rulings made by a judge. Even where we remove a judge for favoritism in deciding a case, for example, we have no standing to undo the biased decision itself. That is for the litigants and their lawyers to pursue. We may refer matters to the attention of court administrators, who in my experience take such referrals seriously.”
Chalfen said the review would be done by a Supreme Court justice “who has no connection to Judge Simpson.” The justice, he said, will “read her decisions to see if they comport with what would be an appropriate determination.”
Chalfen said he would not “speculate” on who would make the final call about revisiting any of Simpson’s rulings.
Simpson’s husband, Jacob Walthour, told ProPublica that he first began to suspect something was wrong with his wife in 2018, but that it took some 18 months for the family and its doctors to discover she was suffering from Alzheimer’s. He said that by August 2019, when Simpson was deciding the Cruz case, it had become clear to him the judge was impaired.
Cruz’s lawyer, Justin Bonus, said he recently had sent a private investigator to interview Walthour, and in papers filed on Tuesday with Justice Laura Johnson, the Brooklyn judge now overseeing the case, Bonus made clear he intended to use Walthour‘s assessment of his wife’s condition to advance his case for vacating her denial of Cruz’s motion.
“The interest of justice and fairness require the Court to vacate the August 29, 2019 decision because Judge Simpson’s own husband admitted that she suffered from dementia during the Cruz post-conviction proceedings and will testify before the Court under oath to the same if called upon,” Bonus wrote.
Bonus said the decision by OCA to limit its review to cases Simpson ruled on during her medical leave was “unacceptable.” He said it was evident to him that Simpson was impaired long before she went on leave, and that she had handled scores of often serious criminal cases during that time.
“They need to take a much longer look at this,” Bonus aaid. “They are sticking their heads in the sand like ostriches.”