Questions of bias for judge in LIRR scandal

Dr. Peter Lesniewski, 60, of Rockville Centre exits

Dr. Peter Lesniewski, 60, of Rockville Centre exits federal court in Manhattan.Lesniewski was one of 10 people arrested by federal agents in connection with a $300 million scheme to defraud the Long Island Rail Road on disability claims, the FBI said. (October 28, 2011) Photo Credit: Craig Ruttle

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The Manhattan federal judge overseeing the upcoming Long Island Rail Road disability trial Friday refused to disqualify himself after a defense lawyer said that his sharp rhetoric while sentencing Dr. Peter Ajemian last month called into question his impartiality toward the only other doctor charged.

Thomas Durkin, the lawyer for Dr. Peter Lesniewski, cited U.S. District Judge Victor Marrero's assertion while sentencing Ajemian to eight years that his stethoscope and other "instruments developed to advance medical treatment were perversely misused by this defendant and others to further criminal ends."

"There's only one 'other' person waiting for trial who is licensed to use a stethoscope, and that's my client, Dr. Lesniewski," Durkin told the judge.

Marrero said his use of the word "others" did not refer to other physicians, but to the LIRR retirees who have admitted to fraud along with Ajemian, and he had not prejudged Lesniewski.

"The statement is not meant to refer to anyone other than Dr. Ajemian and his co-conspirators who have pleaded guilty," the judge said.

Lesniewski, 61, of Rockville Centre, and Ajemian, 64, of Garden City, are among 32 doctors, retirees and others charged in what prosecutors have described as a decadelong scam involving hundreds of ex-LIRR workers to claim fake disabilities that could have cost the federal Railroad Retirement Board as much as $1 billion.

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Twenty-three have pleaded guilty. Lesniewski and three others -- former LIRR union president Joseph Rutigliano of Holtsville, 66; former retirement board manager Marie Baran, 65, of East Meadow; and Steven Gagliano, 56, of North Babylon, a former LIRR signal operator -- are set to be part of the first trial starting July 15.

Marrero was unforgiving when he sentenced Ajemian. He adopted a government theory that doctors were supposed to be "gatekeepers" of the disability system, telling Ajemian that he instead turned healthy patients into "convicted felons" and posting his eight-page sentencing statement on a court website.

Durkin said the suggestion was that the judge held doctors responsible, rather than the LIRR and retirement board that were supposed to police the system. "A reasonable person could come to the same conclusion we have, and that is what leads to the appearance of a lack of impartiality," he said.

But Marrero said he had no intention of stepping down. "Whatever the court said pertained to Dr. Ajemian and his circumstances," he told Durkin, "and nothing else and no one else."

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