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Justice Wolfgang, early advocate for media access to courts, retires

The files were closed, the photos packed up, the faded flowers tossed away.

Justice Penny M. Wolfgang left the building.

The building is the Erie County Courthouse, where Wolfgang, 76, served on the State Supreme Court bench for 30 years. Her departure, after receiving the maximum number of recertifications once she reached mandatory retirement age, is not going unnoticed or, for many, unmourned.

Everyone in the courthouse, from security personnel to her fellow judges, has stories from Wolfgang’s long tenure handling criminal cases. While they might joke about her casual regard to keeping regular hours, her competence and knack for clarity are what rise to the top.

“She has always been able to weed through what’s more important and what’s less important,” defense attorney Andrew LoTempio said, referring to the clatter of information that can attend a criminal case.

Was the crime malicious, was it violent, was it intentional?

What were the losses, what happened to the victim or victims and how will justice best be served?

“She keeps that in mind and treats the defendants appropriately as far as their sentences are concerned,” LoTempio said.

That insight is one of Wolfgang’s greatest strengths as a judge, said Joseph J. Terranova, the go-to attorney when judges need to assign a lawyer for a difficult defendant.

“I can’t say enough about her. She has a keen sensibility for telling who the redeemable people are, and who should go to jail for a long time,” Terranova said. “I can say that -- I’ve had all those people.”

And defendants who landed in her courtroom - good, bad or all those somewhere in between - knew where they stood with this judge, Terranova said.

“She’ll tell you what she’s going to do, and you can take that back to your client and you can go to the bank with it,” he said. “She has never gone back on her word.”

“She’ll be missed,” defense attorney Paul Dell agreed. “Nobody in the building is smarter. She gets it. Within minutes of going over the material, she understands the case.”

And she isn’t shy about telling defendants what she understands.

When a lifelong con man promised to go straight and pay restitution, Wolfgang denied a short sentence.

“You have never made an honest dollar in your life and there’s no reason to think you’ll start now,” she told him.

She told repeat offenders who made perfunctory apologies that they could think about that more while serving their sentences. She one time waved off a defendant’s half-hearted apology by pointing out the extensive criminal record he had acquired by age 21.

“You’re a criminal and your whole family are criminals,” she said to another defendant who was robbing women with his father as his getaway driver.

She also is apt to tell defendants in notorious cases, like the shootings of Buffalo Police Officers Patty Parete and Carl Andolino in 2006, that she hopes they spend the rest of their natural lives in prison.

Some criticism

Still, some of her decisions don’t sit well with prosecutors.

Then-District Attorney Frank A. Sedita III had harsh words for the judge when she tossed out a jury’s verdict that found Jeffrey J. Basil guilty of murder in the death of patron William C. Sager Jr. at Molly’s Pub. Wolfgang ruled that one juror did not disclose during questioning that she had served in the military and had been charged with a felony.

“Despite having taken a solemn oath to ‘answer truthfully questions asked them relative to their qualifications to serve as jurors,’ Juror No. 12 did no such thing,” Wolfgang said in her decision.

For Sedita, Wolfgang went too far.

“I’ve never seen a judge’s decision that attacks a juror like this,” he said at the time. “This juror has now been repeatedly called a liar, over and over again, by a judge.”

Basil later pleaded guilty to manslaughter in Sager’s death, and Wolfgang sentenced him to 18 years in prison.

Cameras in courtroom

Whether they approve of the judge’s decisions or not, members of the public have Wolfgang to thank for their access to criminal court proceedings. She was an early advocate for allowing television cameras into courtrooms.

“She truly and sincerely believes the public has the right to know what goes on in criminal courtrooms,” Erie County Judge Sheila A. DiTullio said. “Penny Wolfgang opened up criminal justice to the public -- and she got a lot of flak for it.”

Wolfgang has heard the criticism, but she brushes it aside.

“I think it’s important for people to see the reasoning behind our decisions and have an explanation for what happens,” Wolfgang said. “I try to make sure everyone knows the considerations that go into my decisions.”

But she also acknowledges that some cases are almost made for television. One that stands out, she said, involved Robin G. Kalinowski, who shot her husband in 2006 while he was sleeping, claimed it was an accident, then tried to hire someone to kill her new boyfriend when he was going to testify against her.

Kalinowski’s first trial on a second-degree murder charge ended in a hung jury in 2008.

She was convicted in her second trial in 2009, but the verdict was overturned on appeal.
She pleaded guilty to conspiracy for trying to have the boyfriend killed, and when she was convicted again in her third trial in 2012, Wolfgang sentenced her to 25 years to life in prison.

“It seemed like something out of a ‘Law & Order’ story,” Wolfgang said when recalling the case. “I mean, enough is enough.”

Settling cases

Cases that go to trial and that continue on after are the exception. The goal is to settle most cases as quickly as possible, and according to others, Wolfgang is an expert at that.

“She has the best numbers in the whole judicial district. She disposes of more cases than any other judge,” Terranova said.

DiTullio agrees.

“She has the work ethic of a 40-year-old,” DiTullio said. “She’s current, and you can’t say that about every judge. It’s important for fairness and for efficiency. She doesn’t want defendants kept waiting for resolution, especially if they are in jail but even if they are out.”

Sometimes she even goes looking for work, DiTullio added.

“She would call other judges to see if they had any cases they needed help clearing,” DiTullio said.

Her passion for the work even made it into a song performed by Judge Thomas P. Franczyk at a recent farewell reception for the retiring judge. Sung to the tune of “Bennie and the Jets,” the song “Penny Is the Best,” includes the lyrics:

“Hey kids, she’s covered all the bases
Helping every other judge get rid of all their crappy cases
If she could you know she’d cover special term the whole year round
But the rules say when you’ve reached a certain age, you gotta shut it down...
Oh, Penny is the best
Penny, Penny is the best.”

While she graciously accepted the attention and laughed at the jokes, Wolfgang could not pretend that she wanted to leave the bench.

“Penny loves walking in the door in the morning,” DiTullio said. “She loves every second of the job, and when she leaves she can’t wait to get back the next day.”

Now the day to day at the courthouse has ended. Posing for photos during her last day in the office, the judge was asked to stand close to her longtime confidential law clerk Daniel Weinstein and look happy.

Standing close to Dan was easy, Wolfgang said but the rest she would fake.

She was not happy to go.

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