February 14th, 2016

Scalia’s Most Important Decision

With the passing of Justice Antonin Scalia yesterday, the country immediately went into overdrive discussing his successor.

As it happens, one of the first posts on this blog discussed the worst Supreme Court decision ever, and Scalia was a part of it.

While many folks consider Plessy v. Ferguson, Dred Scott and Korematsu as the worst, there is one that, I think, clearly supersedes them.

And that is Bush v. Gore, for the simple reason that every other SCOTUS decision could ultimately be overturned by We the People. Scalia was one of the five votes in the per curium opinion.

Laws can be changed. The constitution can be amended. But what happens when the act of democracy itself is suspended?

In that case, then power has been removed from the citizenry.

There was, at the time, only one way to deal with the Florida debacle: Every legally cast vote must be counted. But Bush v. Gore suspended the act of counting votes.

And this, therefore, must stand as part of the Scalia legacy.
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P.S. — Scalia took his place in Turkewitz family history 10 years ago when he responded to a letter my brother wrote him regarding the issue of secession. You can read it here.

December 23rd, 2015

New York’s Judicial Diversity

New York’s top court, the Court of Appeals

New York has announced seven potential replacements for the Court of Appeals seat vacated by Judge Susan Read, who retired this year. And New York’s judicial selection for its highest court — and the reason that I write — looks nothing like the potential nominees for Supreme Court of the United States.

As previously noted here when discussing Court of Appeals nominees, I want to see practicing lawyers (or judges that used to be practicing lawyers) get elevated to the top bench. I want to see the same at SCOTUS, using a method I called the “tissue box test,” but that is never seen.

There is a stark disparity in the origins our our state/federal judiciary, which I discussed in 2011 by showing where each of them attended law school. The line-up at the time looked like this on SCOTUS — and it’s tough to miss the homogenous nature of the Harvard/Yale lineup:

Chief Judge John Roberts: Harvard Law School
Antonin Scalia: Harvard Law School
Anthony Kennedy: Harvard Law School
Clarence Thomas: Yale Law School
Ruth Bader Ginsburg: Harvard Law School
Stephen Breyer: Harvard Law School
Samuel Alito: Yale Law School
Sonia Sotomayor: Yale Law School
Elena Kagan: Harvard Law School

But it looked like this on New York’s top court:

Chief Judge Jonathan Lippmann: NYU Law School
Carmen Beauchamp Ciparick: St. John’s University School of Law
Victoria A. Graffeo: Albany Law School
Susan Phillips Read: University of Chicago Law School
Robert S. Smith: Columbia Law School
Eugene F. Pigott, Jr.: University at Buffalo Law School
Theodore J. Jones: St. Johns University School of Law

And what does the line-up of potential judges look like to replace Judge Read? Like this:

Michael J. Garcia, attorney in private practice (Kirkland & Ellis LLP) – Albany law School
Hon. Judith J. Gische, Associate Justice, Appellate Division, First Department; – SUNY, Buffalo
Caitlin J. Halligan, attorney in private practice (Gibson, Dunn & Crutcher LLP) – Georgetown
Hon. Erin M. Peradotto, Associate Justice, Appellate Division, Fourth Department – SUNY Buffalo
Benjamin E. Rosenberg, General Counsel, New York County District Attorney’ s Office – Harvard
Rowan D. Wilson, attorney in private practice (Cravath, Swaine & Moore, LLP) – Harvard
Stephen P. Younger, attorney in private practice (Patterson Belknapp Webb & Tyler LLP) – Albany Law School

One of the problems we currently have in SCOTUS selection is the part about them serving for a lifetime in the same seat. Presidents then try to pick young judges — late 40s or early 50s — that might sit on the bench for 20-30 years. Or potentially longer. With people living longer lifetimes, and slower turnover for a seat, the stakes have risen dramatically from the days the republic was founded. And there are plenty of people out there who think that should change.

Rather than the top court being the capstone of a long career, during which, hopefully, much was learned, it becomes the career itself and folks learn on the job.

But a 14-year term — which is what New York has — and a mandatory retirement age, leads to constantly changing seats. That leads to a different variety of judges, as we don’t have as much stake in any one judge as the federal equivalent.

While I limit myself here to an analysis of law schools — to the degree that this shows some variety — Scott Greenfield over at Simple Justice thinks there is not enough diversity, based instead on philosophy:

But in law, diversity isn’t built on gender or race, or ethnicity or ancestry. It’s built on legal philosophy, and legal experience. And what you don’t see are two things: lawyers who spent a day of their career working in the trenches on behalf of a criminal defendant, and lawyers who didn’t get a (often sizeable) paycheck from an employer.

There are many ways to view diversity, of course. Greenfield says that the lack of a criminal defense attorney or person with solo or small practice experience shows a lack of diversity. I, on the other hand, see the bar that SCOTUS has established with its Harvard/Yale fixation, and am happy to see that bar easily vaulted by people coming from diverse places.

This post isn’t about which New Yorker should sit on our high court, but rather, about the need for limitations on the power of any one individual. And that comes, in large part, from having a constantly changing dynamic bench from a diverse legal background instead of a stagnant one from a homogenous legal background. For the stagnant homogeneous ones attain too much power.

June 4th, 2014

Order in the Court! (And a Judicial Brawl)

It isn’t often you hear about a judge engaging in fisticuffs with a lawyer appearing before him. Fights may happen in the legislatures of other countries, but it just doesn’t happen in an American courtroom with a jurist. Unless, I guess, that courtroom is in Florida where this happened.

As reported in Florida Today, in an incident in Brevard County, Judge John Murphy first said if he had a rock he would throw it at the lawyer and then it went quickly downhill from there, like kids on a playground:

Murphy and assistant public defender Andrew Weinstock exchanged words in a hearing Monday morning. The exchange escalated, and video records Murphy challenging Weinstock: “If you want to fight let’s go out back and I’ll just beat your ass.”

The men disappear off camera, to a hallway behind the judge’s seat, and loud banging and cursing can be heard. The judge emerges, out of breath, but the attorney does not.

The issue was a simple criminal matter where the judge wanted the public defender to waive the right to a speedy trial. He refused to waive and asked for a trial date.

Tempers flared with that very short interaction, the two of them charged to the back hallway, you can hear the words “Do you want to fuck with me?”, a scuffle takes place and the web blows up with stories about it. Just Google “Judge John Murphy and Andrew Weinstock.”

Here is the short video — I found a version without commercials:

https://www.youtube.com/watch?v=XWXCRnA35HU

Most websites that have covered the matter have excoriated Judge Murphy — who has now taken a leave of absence for anger management classes. This is rightfully so, as no judge should be challenging a lawyer to a fight, then leaving the bench with the person challenged, and then engaging in physical contact with him (and I think I’m safe with the pronoun “him.”)

But since Judge Murphy is such easy pickings for criticism, I’d like to focus on the conduct of the lawyer.

The problem isn’t with any legal argument that he made on behalf of his client. The rule of thumb is simple: Make your argument and then listen to the judge’s ruling. If you expect to lose, it is your job to make sure that it’s all on the record for an appellate court later on.

But what you can’t do, as the lawyer did here, is be belligerent and cutting off the judge when he says “sit down.” This doesn’t help the client. Not. One. Bit. And helping the client is the only reason he is standing in the courtroom well in the first place.

One of the first things a lawyer learns about life in the well of the courtroom is that when the judge speaks, you shut your mouth and listen. Because the judge is in charge, whether you like it or not.

What’s more, when the judge uttered the now-(in)famous words, “If you want to fight let’s go out back and I’ll just beat your ass,” the lawyer charges to the door to go “out back” before the judge is even finished with his rhetorical comment. It was like he was eager to go fight with the judge, either with words or otherwise.

Or at least I presume the judge’s comment was mere rhetorical nonsense based on the tone used, and not a real threat. But whether rhetorical or not, the lawyer’s job is to decline the offer, stay put in the courtroom, and protect the record for the client.

I’ve seen plenty of angry judges in the past, though perhaps not as many as my brethren in the criminal defense bar who carry the baggage of bad apples with them. And I’ve seen plenty of angry lawyers yelling at each other in depositions and in courthouses.

My own tactic for screaming lawyers, which I’ve used several times, is to respond by simply saying, “You’re screaming.” This usually pisses them off and they get louder. Eventually they cool down when they realize they are the only ones engaged that way and making asses of themselves.

When threatened, I have simply ignored the threat and continued doing what I was doing as if it never happened. (Unless the threat relates to a response to this blog, in which case I publish it).

If a judge is out of line, it is not the job of the lawyer to fight, but to make sure it is placed on the record.

The lawyer’s job when faced with a difficult circumstance is to hand the other person the rope with which to hang themselves. And protect the record.

This lawyer fouled up. Because it isn’t about him. It’s about the client. And the record. Which most definitely is not made in the hallway behind the bench.

Elsewhere:

Judicial thuggery: FL judge assaults public defender (A Public Defender)

The Heat of the Well (Simple Justice)

Florida Judge Allegedly Threatens Public Defender, Challenges Him To A Fight, And Then Attacks Him Outside Courtroom (Jonathan Turley)

Judge Beats Up Public Defender (Above the Law)

December 6th, 2012

An Open Letter to Gov. Cuomo On Filling Two Court of Appeals Seats

Gov. Cuomo:

You now have two spots to fill on New York’s Court of Appeals, as a result of the retirement of Judge Carmen Ciparick at the end of this year and the untimely death of Judge Theodore Jones last month.

There is now a list available of seven candidates for the first slot, that of Judge Ciparick.

It isn’t my intention to parse that list here, or the next list that comes out with respect to the late Judge Jones. Rather, it is to remind you that New York has a long tradition of elevating practicing lawyers, and judges that used to be practicing lawyers, to high positions.

While this would seem to be pretty obvious — who but a practicing lawyer could appreciate much of the procedural nuance and nonsense that takes place — it bears repeating due to the stark contrast with the US Supreme Court and the national political stage.

Back in 2009 President Obama needed to fill the seat vacated by Judge Souter. Before he selected Sonia Sotomayor, I wrote about the need for having lawyers who had once practiced in the private sector up on the bench. I called that The Tissue Box Test, based on lawyers knowing what it is like to have sobbing clients in the office, and trying to deal with the legal issues that brought them there.

I urge you to read it.

But if you don’t want to click that link, this is snippet:

I want a nominee to know what it’s like to see real people — not political philosophies or corporate giants trying to add a few cents per share to their earnings — in their office in distress, and to represent them. I want a nominee that has experienced being the last, best hope for a downtrodden individual and the problem brought in the door. I want someone who knows what it’s like to be the underdog against corporate or government interests.

There is more at the link, and what I wrote back then still holds true today. It isn’t just political philosophy that is important, but having a true appreciation for the problems of desperate individuals trying to obtain a small bit of justice.

I hope that, as analysis of the judicial list goes on, that these will be considerations. For all of the judicial philosophizing in the world won’t make up for decisions that treat people as merely “interesting issues.”

In other words, beware those with a lifetime in academia. Beware those that never ran an office, worked on behalf of individuals or made a payroll. Beware those who have not had one-on-one dealings with those frantic for legal service.

And look for those that kept a box of tissues on their desks to hand to the clients in need.

Respectfully yours,

–Eric Turkewitz

November 6th, 2012

Court of Appeals Judge Theodore Jones Dies at 68

Judge Theodore Jones. Photo courtesy of New York Court of Appeals.

New York Court of Appeals Judge Theodore Jones died suddenly last night of an apparent heart attack. He was just 68. Judge Jones ascended to New York’s high court by way of the Brooklyn courts, where he was highly regarded for his respect for both the law and lawyers.

That respect is reflected in the following introduction of Judge Jones delivered a few years ago by Evan Goldberg when the New York State Bar Association gave him an award. The remarks are reprinted here with the permission of Goldberg.

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Our speaker this evening is well known to us all. Judge Theodore Jones has long been a friend of the trial bar, after years of being a trial lawyer himself. He started in the Legal Aid Society, then went to private practice and began his career as a judge in the Juvenile Offender part of Kings County. All this helped shape his judicial character, as a jurist who honestly wants to help people.

His rapid elevation, from Supreme Court, to Administrative Judge, to the Court of Appeals is a testament to the high regard his colleagues have for him. And his TV persona, exhibited during the infamous 2005 transit strike let other people in on what was, at that time, Brooklyn’s best kept secret; that when Judge Teddy Jones got onto a case, an equitable resolution was soon to follow.

When the trial bar lost Judge Jones to the Court of Appeals, we all grieved, because we need judges like him for our trials, but we took collective solace in the knowledge that he would be safeguarding the rule of law in a Court deserving of his inspired participation. Whether he’s penning a scholarly opinion or driving for the green on the golf course, he always devotes his impressive skill with full effort, skill and passion.

For me, personally, Judge Jones has always been available to lend his ear and offer advice. His inclusive, fathering approach is innate. He regularly attends the lawyer golf outings and he’s so good. How good is he? He’s so good, we don’t even have to pretend to lose. Um, not that we do that. Judge Jones is also quite the marksman, a skill he undoubtedly honed when he was a Brooklyn Court Street lawyer. His service as a captain in Viet Nam may also have helped.

Just two days ago, our association’s Diversity Committee gave Judge Jones a lifetime achievement award for his longstanding efforts to advance minorities in our profession. Whether he’s working with high school students, seasoned veterans, or anything in between, Judge Jones is everyone’s BFF. I was truly honored on behalf of our association, when Judge Jones agreed to be our speaker. Ladies and gentlemen, I present Associate Judge of the NYS Court of Appeals, the Honorable Theodore T. Jones, Jr.
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Update: From the New York Law Journal, a sampling of opinions from Judge Jones.