A memorial outside the 102nd Precinct in Richmond Hill, N.Y., where NYPD detective Brian Simonsen, who was fatally shot in February, spent his 19-year career. Photo: Frank Franklin II/AP

On May 31, supporters gathered at Austin's Ale House for a fundraiser for a memorial foundation named after New York City Police Department Det. Brian Simonsen, who was killed in the line of duty earlier this year.

The fundraiser, which was promoted by the Detectives' Endowment Association as a way to support the Simonsen family, featured live music by a group called “Austin's Power.” Performing in the band, according to sources with direct knowledge of the event, was Queens Supreme Court Justice Steven Paynter.

The plain language of state ethics rules appears to bar judges from participating in certain fundraising activities and not lend the prestige of their office to advance a private interest.

But New York State court officials say Paynter appeared at the request of the bar's owner, who was spurred to charitable efforts in the wake of Simonsen's untimely death. And those officials expressed no concern about Paynter's participation, pointing to advisory opinions on the subject.

Some legal and judicial ethics observers said the judge's presence demonstrated a disregard for maintaining the appearance of impartiality.

Paynter's appearance at the fundraiser—promoted on the Instagram account for Austin's Ale House with the band's name (though no mention of Paynter personally) and the pro-police hashtags like #bluelives—highlights another example of what some say is the appearance of a cozy relationship between judges in the Queens trial court and law enforcement, and could raise doubts about fairness toward defendants in criminal cases

“I think the judge isn't using good judgment, in putting himself in that position,” Haub School of Law at Pace University professor Bennet Gershman told the Law Journal. “He shouldn't do it; it doesn't look good. It raises questions about his sensitivity to his job as a judge.”

This isn't the first time the relationship between judges in the borough's Supreme Court and law enforcement have drawn scrutiny. Concerns have been raised over the abnormally high number of familial connections between the DA's office and the Supreme Court bench. Other judges have faced stern opinions from the appellate courts over interjecting from the bench during proceedings in ways that appear to favor law enforcement.

Paynter's own actions have raised similar questions. Like most of his colleagues, the Supreme Court judge previously served as a prosecutor, as an assistant district attorney in Queens in the 1980s and 90s. And he has seen an unusually high reversal rate in cases appealed to the Second Department; those cases usually involved allowing questionably collected evidence by police to be used against defendants by prosecutors.

The fundraiser gig, Gershman said, showed little regard for maintaining an appearance of impartiality.

“He's going to be ruling in cases involving police officers. It seems he has no sensitivity to the job that he is entrusted to do—that is, being a judge that's supposed to be impartial,” he said.

University of Tennessee College of Law professor Penny White, a former state judge who has argued before the U.S. Supreme Court while in private practice, said the goal for the judiciary is for the public to have confidence in the neutrality of the courts. That requires, she told the Law Journal, that judges not only act properly, “but that an objective person viewing the situation would not have concern that there was the potential for bias.”

In reviewing the details of Paynter's appearance at the fundraiser, White would not say there was an ethical issue, but said she found reasons to be concerned.

“Is it wise to show up and do that? Under my standard, no. Is it unethical? I couldn't say that,” she said.

But others, like Northwestern University Pritzker School of Law professor Steven Lubet, saw no ethical quandary in Paynter's decision to participate in a charity event connected to law enforcement.

“I do not think that participating in a fundraiser compromises the judge's impartiality,” Lubet said.

But, Lubet noted, there were still ethical rules judge's in New York must abide by, beyond whatever appearance issues might be raised.

Section 100.4 of the rules governing judicial conduct states that a judge “shall not personally participate in the solicitation of funds or other fund-raising activities.”

This directive comes with caveats. For example, judges can assist in the planning of a fundraiser, or the management and investment of an organization's funds. There have also been advisory opinions issued by the courts around specific activities.

Opinion 15-17, issued by the New York Advisory Committee on Judicial Ethics in 2015, may have the most direct relevance to the fundraiser opinion. It stated that it was “ethical to perform and be paid occasionally if the band is not a business” and the judge's role in the band “is unadvertised” at “charitable events, block parties and parties for friends.”

The opinion also noted that judges must act in a manner “consistent with judicial dignity.” This is apart from the potential conflicts of interest and appearances of impropriety that would arise if a judge participated in fundraising activities for any organization whose members tend to appear before him in court. A judge is obligated to promote the integrity of the judiciary and may not lend the prestige of judicial office to advance a private interest, according to the text of the Section 100 rules.

Outside of the ethics rules and their interpretation in advisory opinions, the public appearance at a police-affiliated event could open the door for defense lawyers to ask Paynter to recuse, according to Georgetown University Law Center professor Michael Frisch.

Paynter himself did not respond to messages left for him in chambers. Instead, Office of Court Administration spokesman Lucian Chalfen responded to a series of questions put forward by the Law Journal.

Chalfen confirmed that Paynter performed in a band supporting the fundraising efforts for Simonsen's memorial fund. This, Chalfen stated, was in the “same vein” as attending funerals and being part of an honor guard. Paynter's role was not advertised, nor did the band accept compensation, Chalfen said.

According to Chalfen, a number of prior ethics opinions provided the judge with clearance to participate in the event.

“Justice Paynter's presence as a band performer at the event does not raise any ethical concerns, according to several advisory judicial ethics opinions, which have specifically advised that a judge may perform in a band at charitable events,” Chalfen said.

While he could rely on past opinions for guidance, Chalfen said Paynter did not seek guidance directly from the Advisory Committee on Judicial Ethics in this instance.

In a letter to the New York Law Journal, Acting Queens DA John Ryan said he was concerned over the “targeting” of Paynter—a member of a purportedly separate branch of the criminal justice system—and pointed to OCA's support for Paynter's actions as sufficient to allay concerns raised by legal ethicists and observers, as well as from the defense bar.

“It would appear that [the Law Journal] does not need me or anyone else to tell him that there was nothing improper in the Judge's conduct,” Ryan wrote.

The DA's office did not directly respond to specific questions submitted to a spokeswoman.

One veteran Queens defense attorney, who spoke to the New York Law Journal anonymously over concerns about reprisals from Paynter and others at the Queens courthouse, said the dynamics in court often resemble a kind of tribal battle, with the defense and their clients on one side and the prosecutors and law enforcement on the other.

A serious problem arises, the lawyer said, if judges aren't universally viewed as being above the fray, representing a fair and unbiased point of view in search of justice.

And for the attorney, the appearance of fairness toward defendants in Paynter's court has been “obliterated,” particularly in proceedings involving police officers.

“It's so detrimental to the perception of the people who are there seeking justice, and who have expectations for it,” the defense lawyer said, referring to the judge's participation in police causes.

Paynter's actions echoed what the veteran attorney said was a familiarity in the Queens courthouse judges and the other actors in the criminal justice system, a familiarity that ultimately resulted in biases that went unexamined.

“They've been doing it for so long, in a comfort zone that allows themselves to not have any awareness,” the person said. “They're either oblivious to the perception of bias created by their entanglements with other people, or they don't care.”

Detectives' Endowment Association president Michael Palladino declined to comment on a sitting judge appearing in support of an event promoted by his union. He did, however, note that he himself was at the fundraiser that day.