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New judge assigned to stop-frisk case

Chief of Department Joseph Esposito joins NYPD officers

Chief of Department Joseph Esposito joins NYPD officers and city officials on his penultimate day at the New York Police Department. (March 26, 2013) Credit: Nancy Borowick

One day after an appeals court removed the federal judge who ordered reforms of NYPD stop-and-frisk practices, a new judge with less than a year's experience on the federal bench and a record of criticizing the NYPD's tactics was assigned to take over.

U.S. District Judge Analisa J. Torres, a former state judge named to replace U.S. District Judge Shira Scheindlin, complained about "random, unjustified questioning" by the NYPD at public housing projects in a 2010 state decision suppressing drugs as evidence.

"To the extent that . . . the police routinely engage in random, unjustified questioning -- and there is evidence that they do -- the practice would amount to a systematic violation," wrote Torres, who became a federal judge in April after being nominated by Sen. Kirsten Gillibrand.

Torres' selection by the district court came as city officials expressed relief over the Second U.S. Circuit Court of Appeals staying Scheindlin's appointment of an NYPD stop-and-frisk monitor, and legal experts scratched their heads over the appeals panel's unusual removal of the judge for appearing to be biased.

Mayor Michael Bloomberg, in his first public remarks since the Thursday ruling, said the decision means that when the city's appeal is heard in March, it will probably reverse Scheindlin's finding that the NYPD behaved unconstitutionally and vindicate the department. "Judges grant stays if they think that there's a high probability that an appeal would be successful," Bloom-berg said in a radio appearance.

Scheindlin ordered a monitor to oversee stop-and-frisk activities after ruling in August that the NYPD under Bloomberg and Commissioner Ray Kelly disproportionately targeted minorities for street stops without the constitutionally required "reasonable suspicion."

Mayoral front-runner Public Advocate Bill de Blasio, who supports stop-and-frisk reforms, has said he would withdraw the city appeal if elected. In that event, Scheindlin would still probably be off the case, but the mayor conceded that her ruling would take effect.

"My understanding . . . is that the penalties that this Judge Scheindlin had ordered would go into effect, although maybe you could argue in court something differently," Bloomberg said.

The Second Circuit panel faulted Scheindlin for urging plaintiffs' lawyers in 2007 to steer the case to her by filing it as "related" to another stop-and-frisk lawsuit she was hearing, and denouncing as "disgraceful" city attacks on her record in press interviews this summer.

The court said her behavior created an appearance of partiality.

Some legal experts called the removal a surprising step that, in Scheindlin's case, seemed to involve high emotions over a public safety issue like stop and frisk and Scheindlin's history as an outspoken liberal jurist as well as the technical grounds the court cited.

One federal judge from another district, who asked not to be identified, called the appeals panel of judges Jose Cabranes, John Walker and Barrington Parker -- which moved against Scheindlin without a motion from the city -- a "conservative panel, a hard-hitting panel."

"I think it is extraordinary that they took this initiative at this stage in the process," that judge said.

Monroe Freedman, a legal and judicial ethics expert at Hofstra University's law school, said Scheindlin had been on firm ethical ground in responding to criticism from the city.

"It appears the court, the Second Circuit, has acted in a totally irresponsible way," he said. "The judge violated no part of the code of judicial conduct."

Anita Bernstein, a legal ethics professor at Brooklyn Law School, said Scheindlin's behavior wasn't "extreme" enough to merit removal, but her public rejoinders to the city exposed her to retribution in a high-stakes case.

"I think appeals courts are not immune to political pressure, even though they have life tenure," she said. "Judge Scheindlin's decision was troubling to people in government power in New York. It's possible the judges shared in that dismay."

With Anthony M. DeStefano

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