Philadelphia Judge Willis W. Berry Jr., under criminal investigation for running a real estate business out of his judicial office, has recused himself from hearing criminal cases beginning Monday, court officials said yesterday.
Berry's move came at the request of the District Attorney's Office, which is investigating whether the judge broke the law by using court resources, including the work of his taxpayer-paid secretary, to operate a string of rundown rental properties in North Philadelphia.
The D.A.'s Office said it was inappropriate for the judge to make rulings in criminal cases while he himself is the subject of a criminal investigation and facing possible sanctions from a judicial disciplinary tribunal.
"There were concerns about the ability of his rulings to withstand attack on appeal," said Deputy District Attorney John P. Delaney, who heads the trial division.
Berry will be assigned to handle civil cases instead.
Last week, the state Court of Judicial Discipline found that Berry, a Common Pleas Court judge, broke the law and dishonored the judiciary by running his business out of the courthouse for more than a decade. In a sternly worded opinion, the tribunal said the judge committed a crime - theft of services - by using court computers, fax machines, copiers, telephones, and his secretary to run his business.
Berry, 66, who has served on the bench since 1996, has acknowledged that his conduct was wrong, but said he was merely guilty of "stupidity" and did not do anything illegal or dishonor the judiciary. Through his lawyer, Samuel C. Stretton, Berry has asked the disciplinary court to reconsider its decision.
The judge faces possible sanctions that include suspension, removal from the bench, and loss of his pension. He also faces criminal investigations by the D.A.'s Office and the state Attorney General's Office, which are examining whether Berry broke the law as the disciplinary court said.
Delaney said the D.A.'s Office was concerned that any criminal cases brought before Berry could be compromised by questions about whether the judge could be fair and impartial while facing possible charges himself.
"We want to make sure that any decision we get is not subject to attack because the judge himself is the subject of judicial discipline and an ongoing criminal investigation," he said.
Stretton said Berry agreed to step aside "because he didn't want to create any controversy."
D. Webster Keogh, administrative judge of Common Pleas Court, said Berry made the right decision. "I think the judge did the appropriate thing," he said. "It's probably best, out of an abundance of caution, so no questions would arise from his sitting on cases that were handled by a body that was investigating him."
In asking Berry to recuse himself, the D.A.'s Office cited its experience with former Philadelphia Judge Mary Rose Cunningham, who continued to hear criminal cases while secretly cooperating with the FBI in an investigation of judges who took cash from roofers' union officials.
"Scores of cases" were later overturned on appeal, Delaney said, and in a 1992 ruling, the state Supreme Court said the judge should have recused herself.
As for Berry, he will be assigned to the civil division to handle appeals in arbitration cases. As it happens, a new judge, Roger F. Gordon, is to join the Common Pleas Court bench next week and Keogh has assigned him to the criminal division in Berry's stead.
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