May 23, 2010
Dear Editor:
Judge Joseph Bellacosa’s Time to Reform Judicial Reform (NYS Bar Journal-May ’10) concerning the state’s judiciary and the State Commission on Judicial Conduct is an eminently reasonable point of view, just as the late Judge Martin Erdman’s colorfully expressed viewpoint of the judiciary itself decades before was not entirely without foundation, albeit not quite appreciated in Justices of the Appellate Division First Department v. Erdman, 33 N.Y.2d 559 (1973). Truth, not consternation mixed with the suspension of disbelief, sets us free. Those who ascend to the bench bring with them all the weaknesses to which human flesh is heir. For a judiciary to deserve “appropriate respect and attention” (Cf. Matter of Maron v. Silver, 14 N.Y.3d 230, 264 (2010) (Smith, J. dissenting) there must be a credible mechanism for the adjudication and removal of weaknesses become misconduct within its ranks. The State Constitution commands it. Except for “milk-stool” judges, these two presuppositions are virtually nonexistent. Two examples from the public record follow. A judge during a murder trial received a letter from an inmate saying that two witnesses lied and another inmate identified a person hiding terrified in a closet as he watched the murder, and that the defendant in the dock did not do it. The judge sent the letter back to the inmate with a “cc” to the District Attorney. Months after a guilty verdict, one of the defense lawyers chanced upon it in the court clerk’s file in an envelope with “SEALED-UNREAD” typed on it. In another case, a lawyer, with no title search, quit claimed away a 95-year old nursing home patient’s home, filed the deed knowing that the grantor was not in the chain of title with the grantee being a friend of the grantor. It’s now a Supreme Court Justice. Both complaints dismissed.
Much, but not all, responsibility for the Judicial Conduct Commission’s lack of accountability and transparency may be urged on the Court of Appeals. Article I, Section 6 of the State Constitution declares that “the power of grand juries to inquire into the willful misconduct in office of public officers and to find indictments… shall never be suspended or impaired by law.” A Manhattan grand jury was investigating bribery, bribe receiving and conspiracy involving two justices. Quashing its subpoena, Stern v. Morgenthau, 62 N.Y.2d 331, 336 (1984) held that Article I, Section 6 was only “intended to prohibit legislation that directly restricts a grand jury’s right to inquire or that… would have as its primary impact limiting investigations of public officers.” Other than a theoretical concept, where’s the line of demarcation? Stern ignored the axiom that one may not do indirectly what one may not do directly; it put the Commission beyond the reach of grand jury inquiry; it suspended the law’s right to everyone’s evidence; it blinked the fact that if there is an abuse of grand jury process courts are there to curb it, as I personally and Matter of Additional Grand Jury v. Doe, 50 N.Y.2d 14, 16 n.2, 22, 23 (1980) do attest. The State Constitution incorporated the grand jury “as-is”; it did not create it, like it did the Court of Appeals. “Shall” and “never” and “suspended” or “impaired” -- like “shall” before “never” -- mean exactly what they say. They are supposed to be a constitutional “no-spin zone.” Evidence subpoenaed by a grand jury is not broadcast to the world, as Grand Jury Proceedings (Doe), 56 N.Y.2d 348,353-354 (1982) tells us. Its subpoena would not compromise the internal proceedings of the Commission nor, absent indictment, confidence in a sitting judge. Stern smacks of a “protect-our-own” judicial power grab placing the Commission aside the constitution and thus insulating it from grand jury scrutiny.
An oath of office and the felony of Unlawful Grand Jury Disclosure are supposed to go surety for grand jury secrecy. Not quite. Matter of Beach v. Shanley, 62 N.Y.2d 241, 254 (1984) gave de facto immunity to prosecutors turned felons and their accomplice press flacks from criminal prosecution by its construction of Civil Rights Law Sections 79-h. A grand jury subpoena for a reporter to disclose the name of the prosecutor who gave him grand jury minutes was quashed before he was asked the question, before his appearance, thus standing Cunningham v. Nadjari, 39 N.Y.2d 314, 318 (1983) on its head – Shanley actually mentioning and then deliberately ignoring it. Article I, Section 6, according to Shanley, was not intended to proscribe privileges “that have an incidental impact on investigation into willful misconduct by public officers.” Again, where’s the boundary line? That which is intended is no more and no less than the language used to intend it. If a judge’s misconduct is under investigation there is nothing to stop corrupt prosecutors in search of a headline from leaking grand jury secret matters to the press. How is this dirty pool fair to the judge, or the law itself? Witness the fact that I was a trial and appellate prosecutor for 30 years -- mostly public officials – now pro bono for anyone I believe innocent. As a line prosecutor over the years I read things in the press concerning grand jury matters I was working on and when I asked, “how’d that get in there?”, those in a position to fire me lied to my face. Shanley is another power-grab, this time on behalf of an irresponsible press whose coverage of the judiciary is often amateurish, misleading or “talk-show-pretty-face-half-baked” ignorant.
How are lawyers and lay persons selected to sit on the Commission? How are judges – trial and appellate – selected? Judges are made, not born. When’s the last Hugo Black to sit on an appellate court? Where are the Breitels, Cardozos and Jasens? The constitutional bargain that was supposed to be an unelected Court of Appeals appointed on the basis of merit, not bean-counting racial-ethnic politics, concomitant with a State Commission on Judicial Conduct to ride herd on rogues in robes was broken by politicians before the ink was dry and the polls closed. The negative results are manifold. I see and read of judges street-demonstrating in their black robes for a pay hike or, years earlier, one protesting against a statute with which the judge disagreed. Now some want to join up with the United Federation of Teachers, even have their own lobbying firm. As the boy said to Shoeless Joe Jackson of the 1919 Chicago White Sox, “say it ain’t so, Joe.” I’m supposed to respect this? Judge Bellacosa told us from whence he comes. Me? I am a nobody, who is one of six whose father was one of thirteen who had to leave school when he was thirteen to help support the family. I came from St. John’s Law Review directly into a Bronx District Attorney’s Office that had publicly imploded when a Supreme Court Justice’s son’s drunken driving killed nine people on the Bronx River Parkway but who eventually walked away unscathed and unpunished on double jeopardy grounds because he was first acquitted by a three judge court of a traffic violation involving the same facts. A new District Attorney Burton B. Roberts went into the law schools instead of the clubhouse thus ameliorating some of the dysfunction then afflicting Bronx County’s portion of the justice system.
On any day, a judiciary is no better and no worse than its composition. If we selected physicians the way we select judges and Judicial Conduct Commissioners we’d be pushing up daisies. Like the press, the judiciary judges the causes and prescribes the cures for its own much self-inflicted wounds. Bar leadership is too much cordial apologist not enough cordial critic. Not by this Irish kid. To whatever extent justified, the Commission’s reputation is judges and lawyers protecting judges. Physician, heal thyself.
Yours truly,
Lawrence N. Gray, Esq.
