Some Odds and Ends: Stories About Judges Politicians and Death Row Vindication

A few things we (Criminal) Trial Lawyers ought to know about:


I. Stroock partner Brian Cogan Named to EDNY Bench.
White Collar Lawyer Brian Cogan who specializes in Bankruptcy and accounting fraud, has been confirmed by the US Senate to fill the shoes of Judge Frederick Block on the US District Court EDNY. Mr. Cogan has had significant participation in the Enron, Parmalat and WorldCom cases. As a Partner in the Stroock Stroock and Lavan LLC law firm located in NYC, Cogan has served the as Vice Chair of the NYC Mayor's commission on the Appointment of City marshals and just completed a term on the grievance Committee of the First Department of the NY appellate Division. A graduate of Cornell University School of Law and an editor of its prestigious Law Review, Mr. Cogan has been the author of numerous articles that have appeared in the NY Law Journal and in ABA publications. He is also a co author of a bankruptcy protection chapter in Haig's business and Commercial Litigation in Federal Courts (West 1998.) That Lawyer Dude congratulates and welcomes Mr. Cogan to the Eastern District bench and looks forward to practicing before him.

II. Attorney General Spitzer Takes Aim at Liberty Mutual
The Wall Street Journal's Law Blog has reported (here) that NY Attorney General Elliot Spitzer has filed a law suit against Insurance giant Liberty Mutual for Bid Rigging in the insurance industry. The just of the complaint seems to be that Liberty made illegal payments and gave gifts to independent Insurance agents to push Liberty Products. Illinois and Conneticut AG's have joined the suit.

III. Federal Jury Speaks: Lying Cop Has to Pay 2.25 Million to Wrongfully Convicted Ex-Death Row Inmate.

Our friends over at CrimProf blog report on (this) CNN story concerning former Virginia Death Row inmate Earl Washington Jr. Who came within ten days of being killed before new scientific evidence unavailable at the time of his original trial showed that the real killer had different DNA. Then State investigator Curtis Reese Wilmore fed information to the slightly mentally retarded Washington, coerced lied and fabricated testimony which resulted in the retarded man's conviction and Death sentence. Though the law suit was brought against Wilmore's estate, it is predicted that the state will have to pay the award. Washington's attorney NYC Civil rights lawyer and DNA expert Peter Nuefeld notes that the Virginia AG hired a high price Washington DC law firm to defend the suit on behalf of the estate. Looks like it didn't help. Washington spent 18 years on Death row before his pardon by then Gov. Jim Gilmore.

IV. Queens Supreme Court Justice Dwyane Hart's Censure is Upheld by a Divided NY Court of Appeals (click here for decision)

A divided NYS Court of Appeals sustained the Public Censure (original decision here) of Queens Supreme Court Justice Dwayne Hart for misuse of his summary contempt powers. The Court's Majority focused on the Judge's lack of remorse for his misuse of his summary contempt power in supporting the Censure as opposed to a less severe admonition or private admonition. The Minority opinion authored by Judge George Bundy Smith and joined by Judge Susan P. Read questioned the severity of the punishment in light of other decisions rendered by the court in similar circumstances.

In this case Hart J. Was presiding (for the third time) over a trial which was, at best, contentious. After three mistrials he started testimony again and then adjourned the case for personal reasons for the afternoon. The Plaintiff asked for the next day as well because his son had a soccer game. The justice testified that he would have normally granted the adjournment but was miffed that counsel for the plaintiff had reported him to the Administrative judge for delaying their case. This is wrong. A judge needs to let counsel do what counsel feels he needs to do to protect his client's rights. It is a bad idea to take anything a zealous lawyer does personally. (It should in fairness be noted that Justice Hart dismissed the claim and, despite all the animosity here that could have gone into a decision to overturn the ruling based on court bias, the Appellate Division's Second Dept. Upheld the dismissal.) After ruling against him on the adjournment, and after the case was adjourned for the day, the plaintiff came up to the Judge in an enclosed parking lot to "discuss" the failure to give him the extra adjournment. Hart called a court officer and the plaintiff was led away, but not arrested. The next day when counsel for the plaintiff pushed the issue and tried to place the circumstances on the record Hart summarily held the plaintiff in contempt for 30 days and suspended the sentence until the end of the hearing. This is the second time Hart refused to let a zealous lawyer do his job. He even forewarned counsel that their attempt to muddy up the record would result in this reaction from the court. In other words this was an old fashioned pissing match.

Judges are human, but they should avoid these things because they will almost always lose them. The best thing a judge can do is take a deep breath and know his rights under the law, and use them. The Court should also not fear attorneys making records. Even when they think the attorney is making an unfair or misleading record, the court should without hostility let the record maker have his say, then the court can correct the record itself with it's own colloquy and let the appellate guys do their jobs. I wonder where the judges lawman was on this.

As Readers of this blog and our sister blog That Lawyer Dude know I am not a big fan of the Stern Commission which is how we lawyers refer to Commission on Judicial Conduct. I have a major problem with unelected people being able to undo what the public elects to do. In fact if I were a State Assemblyman or Senator looking to cut fat from the State Budget, I would begin my search right there. Nevertheless, this is a case that could have gone either way. That said, I would not have voted for the censure for the reasons given in the dissent. I am in agreement that the Judge overstepped his bounds by a lot and seems to have much to learn in the diplomacy area. Moreover, had he not pulled back his contempt, and actually jailed the plaintiff that would have been grounds to debench.

Nevertheless, I am just as disturbed by the act of a litigant approaching a judge outside of a courtroom and trying to have a off the record ex-parte conversation with that judge. The placing of this on the record the next day was rightly seen by the court as an attempt to further the plaintiff's record as to why the court should have recused itself and how plaintiff couldn't get a fair trial. Justice Hart was I am sure trying to stop the plaintiff from gathering an advantage from his own misbehavior.(In fact from the transcript of the judicial hearing into this matter the following Q & A took place: Counsel for the Commission: Q. Were they trying to set up an appeal based upon what their activities were, in your opinion?
Justice Hart: A.I have no idea, but based on Mr. Goldweber’s reputation, I could only believe he had something in his mind. [Tr. 220-21]) Again the best thing the court can do here is let him make his record and set up his appeal. In fact the Second dept. Saw through the rouse anyway. Counsel for the defendant though he was winning on this issue should maybe also protected the court by asking that the court not use summary contempt powers but go through the motions for a regular finding of contempt on notice. He also should have made the record clear that he felt that the other side was fabricating a record, and supported same (assuming that was true).

The better way for the Judge to handle this would have been to allow the placement of the statement on the record, give notice of contempt and allow a hearing, and then in the calm of a new day decide what should have been done. This did not happen and as a result he has been punished. Too severely in my opinion, but then again, my opinions never seemed to matter to the people at the Stern Commission, or the Court of Appeals. I wonder if my opinions matter to my wife...?

Anyway that's the end of our Odds and Ends round up for this week. Tomorrow (I hope) we are going to look at the Polygraph's return as an instrument of torture for defendant's and how defense attorney's should use those cases to turn what is good for the Geese flock known as prosecutors into something that is good for the Gander that is Defense lawyers.