Ex-NY Chief Judge's Guard Cost Millions Without Approval

(January 11, 2023, 6:53 PM EST) -- Former New York State Chief Judge Janet DiFiore's around-the-clock chauffeur and protection detail cost taxpayers an estimated $1 million a year while she was in office, but there is no record of any written approval for the unprecedented escort, Law360 found.

State court officials have provided only a vague rationale for the security detail, which has continued even after DiFiore resigned in August, violating state court policies barring personal use of state vehicles and outraging Albany lawmakers who are now looking into the expense. Previous chief judges did not receive such perks after they left. Even retired federal judges do not enjoy that benefit, judicial security experts told Law360, voicing skepticism that security concerns could justify nearly 7 years of constant state-funded protection for DiFiore.

The $1 million annual cost estimate, which is based on court officer salary schedules and overtime records as well as sources familiar with the arrangement, raises new questions about whether a full-time detail involving six to eight officers was warranted. The Office of Court Administration has repeatedly refused to confirm whether it conducted any documented threat assessment.

The court officer detail first began when DiFiore took office in 2016 and has continued with a rotating team of at least two officers on duty full-time.

"Based on the nature of the chief judge's former position, initial security assessments have been done which effectively continued a robust security detail that she had as Westchester County district attorney," OCA spokesperson Lucian Chalfen said. "As a part of those assessments we maintained communication with our law enforcement partners in local, state and federal agencies. During her tenure as chief judge we routinely reassessed her security detail."

Chalfen declined to confirm the cost of the detail and called the issue "academic."

"These are employees who were on the payroll regardless and that was their assignment," he said.

The Westchester County DA's Office has refused to confirm or deny the existence of any security assessment for DiFiore. Chalfen declined to answer a detailed list of questions about OCA's reassessments, including who performed them, when and whether OCA has any record of them.

In response to Law360's Freedom of Information requests, an attorney for OCA said they could find no written authorization for DiFiore's detail — at any time during or after her tenure — and denied access to any security assessment records without saying if any such record existed.

Odometer readings on the two single sheets of paper disclosed by OCA show DiFiore was driven over 54,000 miles in a new 2020 Chevy Suburban at the height of the pandemic, between late 2019 and late 2021. The records show the vehicle was "chauffeur-driven" with state-paid gasoline and that DiFiore did not reimburse the state for any personal use.

OCA counsel said it could not find DiFiore's required vehicle trip logs for the last four months — after she left government. Failing to record any state-funded trip is a violation of an OCA policy enacted under DiFiore.

Years of annual reports calculating DiFiore's use of her assigned vehicle are also missing — including for this past year. The absence of these forms is an apparent violation of the state comptroller's requirement for agencies to keep these forms on file.

Law360 previously revealed that DiFiore resigned in August while under an unrelated ethics investigation, ultimately stymying judicial misconduct charges with her quick exit. She denies any link between the ethics case and her departure.

State officials called her continuing chauffeur and protection detail "outrageous" and the Senate Judiciary Committee chair has demanded further explanation from OCA.

The protective detail began shortly after DiFiore became chief judge in 2016, according to one former senior official, and matched what she had as district attorney in Westchester County. The full-time multi-SUV escort was in sharp contrast to the details of former Chief Judges Judith Kaye and Jonathan Lippman. Those past chiefs typically had a single officer in a modest sedan drive them during business hours.

The same former official told Law360 they did not believe any formal review was ever performed to justify the expense of DiFiore's detail. The source said they asked then-Chief Administrative Judge Lawrence Marks in 2016 whether he wanted to conduct a new threat assessment for DiFiore, and offered to arrange an outside, independent review.

Marks asked why one was necessary, according to the source, who said they should cover themselves, "because you've got quite a detail going on with her."

Marks said he didn't think it was necessary, dismissing the idea, according to the source.

Marks did not respond to a request for comment. Marks retired in November, leaving the post to Acting Chief Administrative Judge Tamiko Amaker.

A second former official confirmed personal knowledge of a push within OCA for a new internal threat assessment on DiFiore, in line with established court procedures, instead of relying on a past decision by county officials.

Neither former court official recalls any internal review being conducted at the time.

The annual base salaries for six full-time officers on such a detail totals over $500,000 — and nearly $1 million with overtime — based on court officer salary schedules and recent overtime records of individual officers identified by Law360 as working on DiFiore's detail.

New Yorkers may have paid between $3.5 million and $6.5 million for DiFiore's detail since she ascended to the high court in 2016, according to Law360's estimate based on officer salaries. The cost for car leases, gas, tolls or maintenance would add to the bill.

Even before she became chief judge, then-District Attorney DiFiore's armed escort in Westchester County drew attention. It was unusually large in comparison to previous or recent DAs, according to a county official, speaking on condition of anonymity to discuss security arrangements. Records show her security while DA was provided by a rotating in-house team of about 12 criminal investigators.

Westchester taxpayers likely paid about $5 million over DiFiore's 10-year term to pay for four investigators to guard DiFiore, based on payroll records for two investigators on the detail at the time. Most often, a team of four investigators guarded DA DiFiore during a four-month span in 2015, the only time period records were available.

As part of that $5 million estimate, records show Westchester residents footed the bill for $500,000 in overtime for DiFiore's detail between 2006 and 2016, according to a tally of archived DA payroll records obtained by Law360 via a Freedom of Information Law request. The county overtime costs abruptly ended after she became chief judge.

A records officer for the DA refused to confirm or deny the existence of any security assessment for DiFiore, but the spotty records on file spurred the current Westchester DA to institute reforms.

"In light of the recent inquiry into past security detail records and in the interest of proactively maintaining easier access for the future, DA Miriam E. Rocah is implementing a more efficient, record-keeping practice and policy for these kinds of records," a spokesperson said.

Long before DiFiore arrived at the high court in 2016, OCA had a threat-based assessment procedure for approving security measures to protect judges.

The state court system's protocol is to have its Department of Public Safety conduct a study through its Judicial Threats Unit and create a written record laying out the appropriate response to any specific incident, such as a threatening letter, the former court officials said and a public report confirms.

The appropriate response to a threat ranges from a word of advice to the judge on keeping a low profile to notifying local law enforcement to "full-time security and escort coverage," according to OCA's 2005 Task Force on Court Security, which described standard protocols still in place when DiFiore took office. Such arrangements are to be "periodically reviewed to determine if the response should be modified or terminated."

"Careful and accurate assessment of the danger posed by a threat is critical to ensure appropriate, prompt and systematic response," according to the report.

But when asked whether OCA has any record that an assessment was ever done for DiFiore, Chalfen declined to answer directly. His statement confirmed that OCA used "initial security assessments" from Westchester to justify first greenlighting a "robust" court officer detail in 2016.

Chalfen said State Police officers were added to the detail following a high-profile incident in July 2020 involving New Jersey U.S. District Court Judge Esther Salas, whose son was shot and killed in the doorway of her home by an assailant who also wounded the judge's husband. The assailant suspect, Roy Den Hollander, was found dead shortly afterward with a photograph of DiFiore in his possession, Gov. Andrew Cuomo told reporters at the time.

State police told Law360 that a single trooper detail was then assigned around-the-clock to back up the court officer detail, halting two years later when she resigned.

"This is exactly why a modified security detail continued immediately after she left office as threats don't evaporate with a change in job status, as we have since had a number of inappropriate contacts with outside individuals that have been addressed," Chalfen said.

Chalfen declined to answer questions about whether the Salas incident is used to justify DiFiore's current post-resignation chauffeur and protective detail. He also declined to provide information about the nature of the "inappropriate contacts" he described.

Judicial security experts cast doubt on the idea that any threat would justify DiFiore's longrunning, permanent security detail, even the Salas shooting suspect.

"He's dead. He no longer poses a threat to anyone," said John Muffler, a 23-year veteran of the U.S. Marshals Service who headed the agency's National Center for Judicial Security. The lone anti-feminist gunman who targeted Salas, he noted, was also not a part of a group who might pose a danger.

Judge Salas' own federal protective detail ended about a year after the incident, according to Jon Trainum, a 28-year veteran of the U.S. Marshals Service and chief of protective operations in its Judicial Security Division until 2022, when he retired.

"Judge DiFiore may have warranted a protection detail in the beginning, just as Judge Salas did, until we could run down all the leads and thoroughly investigate Hollander and any potential co-conspirators or potential copycats," Trainum told Law360. "But once it went away for Judge Salas, there's certainly no need for DiFiore to have one."

Both judicial security experts told Law360 they found a 6-year permanent detail for DiFiore difficult to justify from a threat-based perspective.

"Six years is — I don't know what to tell you there — that's crazy," Trainum said.

"Judge Salas was probably the longest protective response that we had put together, and that was a little less than a year," Trainum said of his five years overseeing judicial protection operations. "It could be two weeks or it could be six months, but it's never been longer than a year."

In the federal judiciary, only the nine U.S. Supreme Court justices have permanent protection — but even those details end if they step down, Muffler said. No other federal judge has a permanent taxpayer-funded protective detail, the former marshals said, noting a few extraordinary instances of extended protection for jurists presiding over mob and terrorism trials.

The 2,700 other federal judges are only guarded in response to a specific bona fide threat for a limited time, the former marshals said.

"You have to have a reason to spend taxpayer money," Muffler said. When marshals are assigned to a detail, he added, the U.S. Department of Justice demands clear justifications for using manpower and funds.

But in New York, the chief judge or chief administrative judge has the final say on such spending.

The judiciary's budget is generally approved by the governor and legislature with little scrutiny. This is done out of a traditional respect for the separation of powers and the independence of the judicial branch, lawmakers told Law360, but this year they plan to demand answers on the rationale for DiFiore's ongoing detail at upcoming budget hearings.

"If there are clear abuses taking place, then that would be the appropriate venue," State Senate Deputy Majority Leader Michael Gianaris previously told Law360. "We should absolutely scrutinize the judiciary's budget if this is the way they're squandering valuable resources."

When asked if DiFiore's detail will continue through 2023, Chalfen refused to provide details.

"Whether or not there is a detail that remains in place or whether or not security is using an MRAP or a unicycle as transport is not open for discussion," Chalfen said, using a term for an armored military vehicle.

--Editing by Michael Watanabe.

For a reprint of this article, please contact reprints@law360.com.

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