Saturday, August 29, 2009
United States v Ray Decision Focuses on Sentencing and Speedy Trial (U.S. Constitution's 6th Amendment)
Judicial Council of the Second Circuit
Circuit Faults Unexplained 15-Year Delay in Sentencing
By Mark Hamblett, NY Law Journal, August 28, 2009
An unexplained 15-year delay in the sentencing of a woman who had already rehabilitated herself violated the due process clause, a federal appeals court ruled yesterday.
The mail fraud case involving Shenna DeLoache Ray lay dormant until Eastern District Judge Thomas C. Platt sentenced her to one day in prison and six months in a halfway house in 2008.
Yesterday, the U.S. Court of Appeals for the Second Circuit said "the delay is not justified by any legitimate reason and has caused her prejudice insofar as the custodial portion of it threatens to undermine her successful rehabilitation."
Ms. Ray's bizarre case led the Second Circuit to confront several issues for the first time, chief among them was its ruling that the right to a speedy trial in the Sixth Amendment applies only to trials, and not to sentencing proceedings.
Judges Pierre Leval, Jose A. Cabranes and Debra Ann Livingston decided the appeal in United States v. Ray, 08-2795-cr.
The Second Circuit decision appears on page 35 of the print edition of today's Law Journal.
On Dec. 27, 1991, Ms. Ray pleaded guilty to conspiracy to commit mail fraud in violation of 18 U.S.C. §371 and cooperated with the Eastern District U.S. Attorney's Office in its investigation of a 13-month scheme to defraud American International Adjustment Co. Inc. of $200,000.
The district court rejected her request for downward departures under the sentencing guidelines on the grounds that she was the "sole supporter of her two natural and two foster children," and she had committed the crime "at the insistence [of] and because of threats made by her former husband."
Ms. Ray also asked to be spared prison because she was pregnant at the time. The district court declined.
While her appeal was pending, the Second Circuit held in United States v. Johnson, 964 F.2d 124 (1992), that extraordinary family circumstances may be a proper ground for a downward departure from the guidelines range.
The circuit remanded resentencing, and then it disappeared.
Ms. Ray went on to be employed for 15 years, raised her children, remarried, bought a home, and enrolled in an associate's degree program at Queensborough Community College.
But when she was applying for a job as a claims examiner with the Metropolitan Transportation Authority Bus Company, Ms. Ray, who thought her conviction and its consequences were long in the past, could not obtain the documentation she needed to prove her conviction had been resolved.
Alerted to the fact that Ms. Ray was never resentenced, Judge Platt set a resentencing date.
The judge was told by defense counsel that the case had been marked closed after the guilty plea and not returned to the defendant following the original remand, an explanation the judge refused to accept.
For its part, the government apologized to the court for not bringing the matter to his attention promptly.
Judge Platt resentenced Ms. Ray on June 3, 2008, saying mail fraud conspiracy was "a serious offense" that he would "not treat…lightly."
Judge Cabranes, writing for the circuit, said the panel disagreed with Judge Platt's contention that "the primary responsibility for the failure to come back" for resentencing lay with the defense.
He said the circuit was joining other courts in holding that "a defendant does not bear the burden of seeking her own sentencing."
Next, Judge Cabranes said that "no holding of the Supreme Court or our court resolves the question of whether the Speedy Trial Clause applies to sentencing proceedings."
But "in light of the historical evidence, we conclude that the word 'trial,' as understood at the time of the Founding, would not have encompassed sentencing proceedings"—and the last two centuries have "not changed this basic divide between trial and sentencing."
Moreover, the policy concerns that underlie the requirement of a speedy trial, such as "oppressive pretrial incarceration," do not apply to sentencing, he said.
But that does not mean there was no constitutional right to a "speedy" sentencing, Judge Cabranes said.
The U.S. Supreme Court, he said, has recognized that the due process clause has a role to play in protecting against unfair delay in criminal proceedings. With this in mind, he said, the Second Circuit had to examine the reasons for the delay and the prejudice to the accused.
As to the factors that led to the delay, he said, Ms. Ray's case was "allowed to languish due to ordinary negligence on the part of the government" and "her failure, or her attorney's failure, to seek more prompt sentencing."
Ms. Ray's failure does not help her to the extent she wanted her conviction vacated, he said, but it also does not hurt in her lesser request to have her sentence modified.
And there was little question Ms. Ray had been prejudiced, particularly in light of what appears to be her "complete rehabilitation" in the interim.
"The imposition of a custodial penalty at this stage of her life is far more disruptive to Ray's rehabilitation than it would have been 15 years ago, or even several years after her conviction," he said.
Judge Cabranes emphasized that the holding was narrow, for "even substantial delays in sentencing do not in all circumstances amount to a due process violation."
The court ruled that Ms. Ray does not have to go to the halfway house.
Assistant U.S. Attorneys Charles P. Kelly and David C. James represented the government.
Yuanchung Lee of the Federal Defenders of New York represented Ms. Ray.
Friday, August 28, 2009
August 28, 2009, 5:42 PM ET Sjoblom, Proskauer Rose Face Fallout From Stanford Affair
Wow. Plaintiffs’ lawyers work fast!
On Thursday, as we wrote, the former No. 2 executive at Stanford Financial Group pleaded guilty to aiding a multibillion-dollar Ponzi scheme and appeared to implicate Stanford’s outside lawyer, Tom Sjoblom, in a scheme to obstruct a Securities and Exchange Commission investigation into the firm.
Well, lo-and-behold, on the same day, several victims of the fraud filed a class-action lawsuit against Sjoblom (pictured) and his law firm, Proskauer Rose.
The suit, filed in federal court in Dallas, says Sjoblom and Proskauer are liable for $7 billion in damages for aiding and abetting Stanford’s alleged fraud.
According to a story by the NLJ’s Leigh Jones, Proskauer said in a statement that the lawsuit was “legally flawed and factually erroneous.” (Click here for the complaint and scroll to page 19 for the relevant allegations.) Sjoblom’s lawyer, James Cole, declined to comment. Sjoblom hasn’t been criminally charged with any wrongdoing.
The civil suit is largely based on a plea agreement that we mentioned in this post yesterday, which focuses in part of the alleged actions of Sjoblom, who became outside counsel for Stanford’s international bank, based in Antigua in the Caribbean, starting in 2005.
One of the first examples of alleged wrongdoing by Sjoblom and Proskauer involves a 2006 fax sent to Sjoblom by Leroy King, an Antigua banking regulator, whom prosecutors say was being bribed by Stanford to rubber-stamp Stanford’s activities. (King was criminally charged by U.S. prosecutors and could be extradited to the U.S.)
In the fax, King allegedly asked for Sjoblom’s help in crafting a response to a different Caribbean banking regulator who was asking about the firm. The lawsuit states: “Recognizing that he had already been paid through cash bribe payments from Stanford, King concluded the August 1, 2006 facsimile transmission with the following handwritten words: ‘Please do not bill me (laugh), Thanks a million, Lee.”
Let us offer up an observation: Judging from the outcome of a recent and slightly analogous situation, the claims against Proskauer might be a long shot.
In a separate recent case in which a partner at a major law firm was charged and convicted of aiding his client’s fraud, the firm so far hasn’t had to pony up cash, despite the best efforts of members of the plaintiffs’ bar. A former partner at Mayer Brown, Joseph Collins, was convicted earlier this year of helping to cover up fraud at his client, Refco Inc., a commodities broker. A story yesterday by AmLaw Litigation Daily notes that Mayer Brown “succeeded in beating back nearly every attempt to hold it liable in civil suits for the damage caused by Refco’s collapse” in 2005. The commodities broker had hidden $430 million in bad debts from the company’s auditors and investors.
Saturday, August 15, 2009
AN OPEN LETTER TO BRIAN LEHRER
My name is William Galison, I am a musician whose family has lived in Manhattan for four generations. I have been a performing guest on Lenny Lopaite’s show and a guest on Leanne Hansen’s Weekend Edition and a member of WNYC for decades. Nobody loves and cares about WNYC more than I do.
Six years ago, a major law firm attempted to steal my copyrights to my own CD and I sued to protect my rights. Although I ultimately prevailed, I was shocked to discover that the New York State judiciary is unimaginably corrupt; from attorneys who break ethical rules to judges who break judicial law to the Chief Judge of New York State, Jonathan Lippman, (pictured at right) who was illegally shoehorned into power by the corrupt New York State Senate, all with utter impunity and no media coverage.
WNYC does terrific journalism and entertainment in many areas, but by their own admission, they will not touch the issue of judicial corruption (see below). Apparently, they are improperly beholden to their primary benefactors, which include many of the “White Shoe” law firms. As shown below, the interests of these firms are in conflict with the interests of the Public and of honest journalism, and have lead WNYC to self-censor reporting on matters crucial to their listeners.
Brian Lehrer (pictured at right) is a star among stars: brilliant, informed, witty, human and consciencous. I can only pray that the reason he has neglected to respond to my concerns is that he has been sequestered from my correspondence. This letter is an effort to assure that he knows what is being said done in his name.
New York State’s Utter Lack of Judicial Oversight
Attorney and Judicial rules and laws are enforced by the so-called "judicial oversight committees" specifically the divisional "Grievance Committees" and the "Commission on Judicial Conduct" (CJC).
The corruption in both of these bodies is absolute and flagrant. Complaints against lawyers with "connections" are brazenly whitewashed. Lawyers who act against the connected ones are often sanctioned or disbarred Likewise, the CJC dismisses complaints against judges without any investigation or explanation. Judges who dare to challenge the system are punished. To compound the problem, no attorney will touch cases of alleged corruption against crooked attorneys or judges. They know this means professional suicide.
The Public Resistance
There exists an affiliation of victims of judicial corruption, and consequently of the Grievance Committees and/or the CJC. Our complaints against these agencies are not about unfavorable decisions, but about the flagrant lack of due process. We have at least seven cases now pending in federal court, specifically against the grievance committees and the CJC with more being prepared. Members of this affiliation have been fighting this corruption by compiling evidence proving flagrant abuses by judges and lawyers and the pattern of blatant corruption in the oversight committees. These include:
- Christine Anderson Esq: a six year veteran investigating attorney at the First Departmental Disciplinary Committee,: who was fired by Jonathan Lippman for whistle-bowing against systemic corruption at the DDC.
- The Honorable Duane Hart: an exemplary sitting Supreme Court Judge, who has suffered a campaign of harassment and retaliation by the CJC for standing by his principals. His Honor has stated on the record that the only lawyer he has known who is “sleazier” than the Chairman of the CJC is the Chief Counsel of the DDC.
- Gizella Weishauss: A survivor of Auschwitz, and the first complainant in the Holocaust restitution case against the Swiss banks. Removed from the case by her lawyer after she exposed graft and corruption by her lawyers, she was deprived of the restitution she sought for all victims. The New York DDC whitewashed her complaints against her lawyer even as he was disbarred in its counterpart in New Jersey.
-Louisa Esposito, a car accident victim who videotaped her lawyer Allen Isaac demanding oral sex in return for a “favorable outcome” based on his connections with the judges of the First Appellate Division Court.
-Numerous attorneys who have been disbarred, sanctioned and harassed for obeying their obligations to their clients and the rules of professional responsibility.
The June 8th Senate Judiciary Committee Hearing
On June 8th 2009, after years of pressure from concerned citizens, the Senate Judiciary Committee held a hearing in Albany about the alleged abuses by the oversight committees. Most of the above victims testified at the hearing, which can be viewed in its entirety on Youtube: http://www.youtube.com/watch?v=HR8OX8uuAbw
The illegal confirmation of Chief Judge Jonathan Lippman
Jonathan Lippman (see also bio below) is one of the worst perpetrators of judicial corruption in New York, and his ascension to the highest judgeship in New York State is a disaster for justice. There are at least seven federal corruption cases pending against Lippman in the Southern District and dozens more before the SJC and CJC.
On January 29th, 2009 Hearings were held to discuss the process for the section of nominees for Chief Judge. WNYC refused to announce this public hearing despite written requests well in advance.
The February 11th, 2009, Confirmation hearings were the only opportunity for the public to voice concerns about Judge Lippman. WNYC refused to announce this hearing and refused to cover the hearing, As a result, only I and two other New Yorkers in opposition attended the hearing, after learning of the hearing from a leak. In contrast, over one hundred friends and family of Lippman were personally invited to celebrate his confirmation. It was only after I alerted WNYC that Wayne Barrett had a front page story in the Village Voice about Lipman’s corruption, did Brian interview Barrett- briefly, after the fact., with no questions of substance,
On June 8th 2009, hearings were held before the Senate Judiciary Committee regarding abuses by the judicial oversight committees. 200 citizens attended. But WNYC refused to announce or cover this historic hearing.
By its own admission, WNYC “will not cover” the matter of judicial corruption in New York State.
Over the past three years I have repeatedly requested that WNYC dedicate one single segment to the hugely important issue of judicial corruption in New York State, and specifically about the corrupt oversight committees. Over the past five years at least, there has not been a single segment on this subject.
I was told by newsroom that there was “no time to cover every story that listeners request”. As I was speaking to the newsroom rep, Brian Lehrer was hosting a thirty-minute segment on handbag fashions. No time?
When I persisted in requesting coverage of the judiciary, I was sent a threatening letter by WNYC’s counsel Ivan Zimmerman, who warned me to desist in my requests (letter available on request). I was told by Beth Fertig that she had been told not to speak to me because I was “harassing the station”, but Ms. Fertig refused to tell me who told her that, or what that allegation was based upon.
Most ominously, in a recorded conversation on June 15th 2009, “Sarah” at WNYC’s Listener Services stated that WNYC “will not cover” the topic of judicial corruption, before hanging up on me. (Mp3 recording available on request)
WNYC has censored its website to conceal listener concern about Judicial Corruption.
The minutes of the Community Advisory Board meeting of January 20, 2009, on the WNYC website report: “CAB board member Ken Stewart said that Mr. Galison had recently convinced him of his case, and asked Mr. Galison what WNYC could do.”
However, the minutes of the prior CAB meeting at which I presented my “case” were censored to expunge any mention of my original suggestion that WNYC address judicial corruption, a suggestion Mr. Stewart initially questioned.
WNYC has reportedly threatened to have me arrested for criticizing their negligence of Judicial corruption.
An anonymous threat on the website http://exposecorruptcourts.blogspot.com/ states: “my friend [at WNYC] tells me they have a picture of him hanging up near the entrance and direction to call the police if he shows up there again. Scary. Tightly wound, ready to break. Watch out.
Why would WNYC neglect this crucial topic?
The connections between WNYC’s board of directors and the “White Shoe” law firms are vast and will be the subject of a report to be sent to published on the internet in the near future. These law firms are the clear beneficiaries of the corruption that pervades the Judiciary and they are deeply invested in preserving the status quo.
For more information on New York State Judicial Corruption, see:
I can be reached at firstname.lastname@example.org
Wayne Barrett: How Shelly Silver Made His Pal Chief Judge
By Wayne Barrett in Albany, Democracy, Wayne Barrett, The Village Voice
Justice is Blindsided
Shelly Silver games Governor Paterson to get his childhood pal the state's top courts job
By Wayne Barrett
Jonathan Lippman and Sheldon Silver grew up together on the Lower East Side in the 1950s, living next door in the insular Grand Street projects and sitting near each other's family in the neighborhood's Orthodox shul. After both graduated from law school in 1968 and drifted into low-level courthouse gigs in Manhattan in their early careers, one went on to become the longest-serving Democratic legislative leader in modern New York history, master of an unprecedented 107 to 43 majority in the State Assembly. The other remained largely unknown, except inside the state's vast court system.
Last month, the two old friends reunited in the Red Room in the State Capitol to celebrate their emergence as the most powerful duo in state government.
Below the political radar, the black-hatted, still religious, and gravel-toned Silver, who is celebrating his 65th birthday and 15th year as speaker this month, has been quietly boosting the more secular Lippman for years. Now, he's finally pushed Lippman from the series of back-office management posts where he's labored for years to the job of top gavel in the State Judiciary.
Appointed Chief Judge of the Court of Appeals in mid-January by the accidental governor, David Paterson, whose troubled tenure continues to erode his own ranking among the state's power elite, Lippman is awaiting virtually certain confirmation in the next few days from the new and narrow Senate Democratic majority. He will take over a court system that spends $2.3 billion a year, employs 21,000, and is likely to deal with issues like gay marriage, the housing foreclosure crisis, Wall Street criminality, and the still anti-city school aid formula during the six years he will reign until his mandatory retirement at 70.
A year younger than his boyhood friend, Lippman awaits State Senate confirmation before becoming the first chief judge since 1898 to lead the state's highest court without ever serving as one of the court's seven members . When Silver gave a short speech at Paterson's announcement of the appointment, Lippman quipped: "Two kids from the Lower East Side--not too shabby."
In fact, the story of how Lippman reached this pinnacle has its shabby side. He exudes an above-politics reform aura, but he did not climb to the top of the state's judiciary without making some stops in the dark along the way. His ally, Silver, helped clear that path to power, working a system whose anti-democratic ways have been rebuked by two federal courts.
Lippman has been a hardworking ambassador and manager of the courts for decades, visiting almost all of the system's 343 locations and acquainting himself with virtually every one of its 1,300 judges. But he has also been its consummate political player, seemingly more interested in influence than law.
Jonathan Lippman will soon preside over the most complicated and significant cases in New York, even though he's never practiced as a private attorney.
His legal career began in a judge's chambers as a law secretary and, when he turns 70 in six years, it will end there. In fact, he has spent so much of his career as a bureaucrat that he's written only 16 signed judicial opinions, 14 of them since Paterson's predecessor, Eliot Spitzer, made him the presiding justice of Manhattan's Appellate Division in 2007. With that scant a record as a jurist, it's impossible to know what his judicial philosophy is, and even his 24-year tenure in three appointive administrative posts offers no consistent thread about his judicial values or independence.
On one hand, he described himself in a 2006 speech as "unencumbered by parochial or partisan or political agendas," and is so widely considered a champion of court reform that New York's Bar Association found him "exceptionally well qualified" for chief judge, ahead of the "well-qualified" ratings it gave long-standing Appeals judges. The Times endorsed him, and he was given the Rehnquist Award for Judicial Excellence in November by U.S. Supreme Court Chief Judge John Roberts.
On the other hand, he is such a skilled and connected insider that when he ran for the first and only time in 2005, he was the only candidate in the state running for Supreme Court who couldn't be voted against. Lippman was on all five ballot lines: Democratic, Republican, Working Families, Conservative, and Independent. In fact, he had refused to allow his name to be put in the nomination unless every party backed him for the seat, which is the top trial court of the unified court system. (In New York, the "Supreme" Court is not actually supreme: The Court of Appeals is at the top of the judicial pile, above the Appellate Division and the Supreme Court, where major civil and criminal cases are heard.)
David Alpert, the onetime Democratic leader in Lippman's home county of Westchester, says the first time he ever heard of the man was when he got a call from a Republican, State Senator Nick Spano. Spano told him that he and a Westchester Democratic assemblyman, Richard Brodsky, had passed an amendment creating a new Supreme Court seat in Westchester, and Spano wanted Lippman "to be cross-endorsed for it." That meant Spano wanted the Democrats, Republicans, and other minor parties to all vote at their judicial nominating conventions to put Lippman's name on their ballot lines for this new, vacant seat, in exchange for which the Republicans would demand that the Democrats endorse at least one of their candidates.
"I didn't even know [Lippman] lived in Westchester," says Alpert, who was accustomed to promoting attorneys and county judges who had done their time for the party to Supreme Court slots. "I had breakfast with him, and the first thing he told me was that he and Shelly were raised together. He said he wanted to be cross-endorsed and that he wanted to go on to be an appellate judge." Alpert was just one of a legion of county leaders Lippman had to deal with over the years as he sought a Supreme Court seat--five counties with five parties occupy the 9th Judicial District--but Alpert says "we tried twice" (in 2000 and 2002, he believes) to deliver a multi-party cross-endorsement deal and couldn't.
Joseph Ruggiero, the Democratic leader from Dutchess County in 2002, said that on the day of the judicial convention when Democrats picked their Supreme Court nominees, Silver placed a conference call to a group of party leaders gathered at the Westchester headquarters and asked them to support Lippman. "We all said yes," recalled Ruggiero. How could they say no? With a Republican governor and Senate
majority leader at the time, Silver was New York's top Democrat, and Denny Farrell,(at right) Silver's right hand in the assembly, was the state party chair.
When the current Westchester Democratic leader, Reggie LaFayette, (above) finally did deliver a deal for Lippman in 2005, he explained Lippman's unusual candidacy--clearly more top-down than the typical grassroots designation--to his executive committee this way: "I told them I don't create judge seats. It was created higher up than me, by the two houses of the legislature. And someone yelled out, 'You mean Assemblyman Silver,' and I said, 'Well, he had to vote for it.' " But the bigger problem for LaFayette was cajoling his fellow leaders into giving up a seat in a cross-endorsement deal and backing a Republican. Cross-endorsements are easy when the two parties are competitive and no one knows who will win, but Democrats had won five of six judgeships in 2004, without any deals, and felt no need to give the GOP anything.
The executive committee understood LaFayette's argument and signed on, but a few weeks later, the price of the Lippman package deal got much steeper. The leaders could live with cross-endorsing the initial Republican candidate, a respected county judge named Stewart Rosenwasser. But just days before the September judicial conventions, the Republicans replaced Rosenwasser with a candidate that horrified many Democrats: Joseph Alessandro, also a county judge.
Alessandro had been found "not qualified" by the Bar Association and was dogged by tawdry tax and lawsuit charges. The New York State Commission on Judicial Conduct is still investigating those charges, and Alessandro, who did become a Supreme Court judge, is now facing possible severe sanctions. Yet it was Lippman's demands that would put Alessandro on the bench.
Lippman wanted to be endorsed by all five parties, and that insistence created an opening for the county's most voracious party boss, Dr. Giulio Cavallo, who controlled the Independence Party. He wanted Alessandro, not Rosenwasser, to become Lippman's opposite number in the multi-party swap and get the cross-endorsements. LaFayette and the Republican leader, RoseMarie Panio, eventually decided to back Alessandro, but fights against the deal broke out on the floors of both of these ordinarily scripted and staid conventions. Challengers ran against Alessandro and, had he lost at either convention, Lippman's precious deal--and ultimately his route to the Court of Appeals--would have died.
The inclusion of Alessandro so offended Working Families party chair Pat Welsh that he endorsed Lippman but refused to back Alessandro, telling the Voice that the deal was "unconscionable." (Lippman ran on five ballot lines; Alessandro, apparently unconcerned about the Working Families Party, four). A disgusted Rosenwasser wound up quitting the bench altogether.
At Lippman's January 2006 induction ceremony for Supreme Court in White Plains, Silver regaled the audience of bigwigs--at a special celebration separated from the swearing-in of the other new judges--with "our gang" stories from their first meeting at the age of six. Saying, "We have shared a common path," Silver joined in celebrating "with my colleagues in the legislature," many of whom were there, "who I say had a good hand in making today happen." While Lippman is now said to be downplaying Silver's role in his rise, he called him "family" in his speech and praised him for "marshaling the troops, and, boy, can he marshal the troops."
Lippman called himself "basically an apolitical person," and then thanked 16 party leaders, referring to each of the five from Westchester, including Cavallo, as "my leader," singling out Spano, who, he said, "vouched for me on the Republican side." Judge Gail Prudenti, the presiding justice in the Appellate Division covering Westchester, spoke on behalf of what she called "the many, many, many campaign advisers to the seemingly never-ending 'Lippman for Justice' campaigns."
The unexamined side of the Lippman saga is revealed in these salty Westchester tales, where the judge who pretends he is above self-serving politics played it as skillfully as his sidekick from the neighborhood who does it for a living. Lippman created the state's Judicial Campaign Ethics Center to guide candidates for elected judgeships, but he told Alpert, and many others, that he wanted the seat handed to him without the inconvenience of an election because it would be unseemly for the chief administrative judge to solicit contributions.
Yet he had no problem brandishing the calling card of Silver's friendship, or dialing up county leaders and other powerbrokers, some of whom, including Senate Assistant Majority Leader and onetime GOP boss Spano, were receiving lucrative patronage assignments from his courts. He even had no hesitation about going forward with the deal though he knew it would result in the elevation of an already tarnished judge, Alessandro, who may soon be repudiated by the Conduct Commission.
In fact, just as he began his efforts to secure a Supreme Court slot in 2000, he opened an elaborate office for himself in state space, across the street from the White Plains courthouse, and began spending a lot of time there, deeply involving himself in the judicial politics of that district. Shortly before that, he abruptly asked the district's administrative judge, Angelo Ingrassia, a Republican from a small county in the district, to step down a year before his mandatory retirement age. He even gave Ingrassia a car and chauffeur for his final year to induce him to do it.
He then split Ingrassia's job into two positions and gave both to Spano allies--one a Republican and the other an influential Democrat from Westchester, the populous center of the district. The new administrative judge, Frank Nicolai, denied in a Voice interview that he "campaigned for Lippman" in the long-running effort to secure a Supreme Court seat, as some sources contend. That would be a violation of judicial ethics, which only permit judges to campaign for themselves. "If someone asked," Nicolai said, "I'd say he'd be an outstanding judge." Asked if he might have initiated some of those conversations, Nicolai added: "I might have."
Nicolai presided at Lippman's 2006 swearing-in, where Lippman, Silver, and his other prestigious friends were so self-congratulatory it was almost as if he had actually won an election--when all he'd really done was collect chits and lean on the party bosses who'd installed him. With all the editorial hubbub about the judicial nominating process in New York, spurred by the federal court decisions that the process was an unconstitutional infringement of the franchise, Lippman the reformer had inadvertently established by his own experience how poisonously anti-democratic it was.
Yet, at his induction, he called his campaign "a unique experience," and even praised the mix of elective and appointive positions in New York's judicial system. Indeed, he has proven, from his Supreme Court fix to his culminating appointment as chief judge, that he is the master of both processes, each with their own brand of incestuous networking. If that is merit, then Lippman is what many of his supporters see him as, the embodiment of the merit system in our courts.
Lippman wanted a Supreme Court spot to make himself legally eligible for appointment to a second-tier appellate post, which he saw as a vital stepping-stone to the top-tier Court of Appeals. He had to do it then because his other sponsor, Chief Judge Judith Kaye, would have to step down when she turned 70 in 2008, and even a brief stint on the appellate bench would give him an opportunity to build a record as a scholarly jurist, though it would be quite a lean one in comparison with competitors who'd actually written opinions for lifetimes.
But his timely and controversial "election" was hardly the only awkwardly abetted step on his unprecedented career ascension. Prior to it, Lippman had only been a Court of Claims judge--an appointment bestowed by Governor George Pataki a few months into his first year in office (1995), when the Democrat Lippman managed to secure a spot despite the hunger of Republicans eager to grab judicial patronage slots after 12 years of Democratic rule.
At the time, Lippman was the top deputy in the Office of Court Administration, and all he had going for him were his Silver ties; an assiduously cultivated friendship with GOP Senate Judiciary Chair Jim Lack; and the backing of Judge Kaye, who argued that Lippman should hold a judicial title since she intended to install him, as she did a few months later, as the chief administrative judge.
Spano, who had just become the Republican county leader in Westchester in 1995, met Lippman in the few days between Pataki's appointment and the Senate's confirmation. Since Lippman was technically a candidate from Spano's home turf, he had to sign off and did, endorsing Lippman on the Senate floor and launching what he concedes became a series of efforts on Lippman's behalf that he would make over the coming years. Three of the pivotal party brass--Westchester Conservative Gail Burns, Rockland County Republican Vince Reda, and Cavallo--were on Spano-engineered Senate payrolls when Lippman collected his cross-endorsements in 2005, and the senator concedes that he spoke to them, as well as to Westchester Republican RoseMarie Panio, a close ally. "I'm sure I expressed support for Judge Lippman," Spano tells the Voice. "Anytime his name was up, I was an enthusiastic supporter."
In fact, Spano, who was widely viewed as the Senate Republican closest to Silver, confirmed his call to Alpert and acknowledged that he'd pushed midnight legislation through in 2005 and earlier, aided by Brodsky, that created new Supreme Court seats in the judicial district covering Westchester. The bill in 2005 was introduced by Pataki on June 24 and passed by both houses that day. While Spano said he didn't think "it would be fair to say" the seats were "created for anyone," he concedes that "Lippman's name came up" when the bills were adopted. Lippman needed more than one bill because the cross-endorsement deals with the Republicans fell apart, for reasons having nothing to do with him (once the Republicans demanded four Republican cross-endorsements for Lippman). He even went so far as to be nominated by the Democrats in 2002, only to file a formal declination when the deal with the GOP broke down.
A few months after Spano helped engineer Lippman's 2005 cross-endorsement, his brother, Mike Spano, an assemblyman mired in the hopelessly outmanned Republican minority, quit the assembly and joined a premier Albany lobbying firm run by Silver's former chief of staff, Pat Lynch, who is perceived to be the lobbyist closest to the speaker. When Nick Spano was defeated for the Senate in 2006, he formed his own lobbying company that Lynch invested in and allowed him to operate until this month out of her Albany suite. Mike Spano eventually went back to the Assembly, but he later became a Democrat at a press conference attended by Silver. Nick Spano, who reported half a million dollars in lobbying fees in 2007, denies vociferously that his aggressive support for Lippman has anything to do with his current business. But his ties to Lynch, and Lynch's hiring of his brother (who was hardly an influential Albany player), are a measure of his alliance with Silver, who Nick Spano says he "might have talked to" about Lippman's candidacy over the years "in social settings."
All the while that Spano was aiding Lippman's candidacy, he was reaping at least $79,739 in fees as a "court evaluator," a person paid to measure the mental competency of someone named in a legal petition. Though Spano isn't a lawyer, he has received 31 of these assignments and four other referee assignments. OCA regulations require the disclosure of these fees, but Spano's fees in 15 cases aren't listed on the office's printout. While Lippman's OCA had nothing to do with choosing evaluators (individual judges do that), it did collect applications for appointments; approved evaluators, like Spano, for the list; and set the qualifications for appointment, which appear to permit just about any professional to sign up.
Evaluators look into the eyes of the subjects of these court petitions, many of whom are elderly and in nursing homes, and decide whether they should retain control of property and other assets, the value of which they also consider. Spano sponsored the law that created this position, and he and other pols in Westchester, including then Senator Guy Velella, wasted no time collecting assignments. Velella, who has since been convicted on unrelated charges, was another social friend of Lippman's, and dined with him and Senator Lack and their wives at Rao's, the famously exclusive restaurant in East Harlem. Even one of the restaurant owners collected 19 appointments as an evaluator.
Lack, however, never dipped into the evaluator till, but he did collect 66 court appointments as a guardian or referee while chairing the Senate Judiciary, 26 of which were from Judge Prudenti, who spoke about her adviser role in Lippman's never-ending campaign at the 2006 induction. A Court of Claims judge himself by then, Lack was also present at the swearing-in and was saluted by Lippman, though he'd left the Senate after chasing a woman to her home in a road-rage dispute and ducking under the garage door when she tried to hide from him. "Do I think it's a terrible thing that people involved in public office receive this?" Lippman once told Newsday, referring to judicial patronage. "No, I don't."
There's no indication that Lippman did anything more than oversee this grab bag of goodies--with evaluators often earning $3,000 for a couple hours of work. But if Lippman was so concerned about the appearances of being political that he effectively exempted himself from the requirement that he actually compete in the electoral arena, he might have been a bit more careful about the appearances of his alliances with the beneficiaries of this dubious bonanza.
The day after Lippman became a Supreme Court Judge, in 2006, he asked Judges Kaye and Prudenti to name him to the Appellate Term, a job he would perform in addition to the administrative post he retained. This assignment--which allowed him to hear appeals of some lower court decisions--was his only way of acquiring appeal experience without being formally elevated by the governor to the full Appellate Division.
When a vacancy developed in the Manhattan Appellate Division and Spitzer selected Lippman as the county's presiding judge, howls were heard because two of the most respected sitting judges on that Appellate Division were bypassed by the screening panel of lawyers that vets judicial candidates, narrowing the governor's choice.
The same thing happened in December, when the screening panel for chief judge excluded two sitting Court of Appeals judges, as well as all women and Latino candidates--giving Paterson an invitation he couldn't figure out how to refuse. The panel included four Kaye appointees and one from Silver. Panel member Leo Milonas was so close to Lippman he spoke at the induction. Lippman saluted Milonas then as "truly my friend for life," calling their friendship, which began when Lippman worked for him at OCA, "an unforgettable relationship that, to my great benefit, continues today in every way."
Reminded of that by the Voice, Milonas saw it as no reason to have recused himself from anointing Lippman, noting that he was "more qualified" to help pick a chief judge "because I know people." The panel's chair, John O'Mara, a Pataki appointee, sat with Lippman on the court's Capital Construction Board for years.
An angry Paterson asked Attorney General Andrew Cuomo to investigate the panel's exclusionary list of seven nominees, but he never released Cuomo's report or recommendations. Instead, he began openly associating the chief judge selection with the other grand decision that faced him--the choice of a new senator to succeed Hillary Clinton--sending the signal that he had to pick a woman for the Senate since the panel's list barred him from picking one for the court.
When Silver reversed course and supported Caroline Kennedy, insiders suspected it was all about his love for Lippman. At that point, the governor had also just about convinced everyone that he wanted Kennedy, and the assumption was that Silver got the message that if he wanted Lippman, he'd better sing "Auld Lang Syne" to his Kennedy animosity. Paterson was asked about this connection at the Lippman announcement and denied it, adding that he "actually did not know the extent" of Lippman's "relationship" with Silver until he called the speaker to tell him about the appointment--which would make the governor the only high-ranking New York official unaware of it.
Ironically, of course, Paterson deserted Kennedy, and even claimed, improbably, that he never intended to pick her, though he revealed how important he thought Silver's opinion was about his eventual choice, Kirsten Gillibrand (another woman, to balance Lippman), when he said at her announcement that he moved it up to Friday from Saturday so the Sabbath-observing Silver could attend. It would be par for the course in Paterson's stumbling regime that he would agree to Silver's choice for chief judge in return for Silver's support of Kennedy, and then not get her, only to be stuck with Silver's pal for judge.
Whatever the deal, Paterson appeared boxed in when he announced that he would choose from the screening panel's list for chief judge. But there is one school of thought, citing interpretations from the OCA, that suggests that Paterson could simply have chosen to do nothing when the January 15 appointment deadline arrived. These analysts argue that Paterson could have named no one until later this year, when panel chair O'Mara steps down. That would have meant that Carmen Ciparick, a woman and a Hispanic who has been on the Court of Appeals for 15 years, could have continued serving as the acting chief judge, a position the other five judges voted to give her when Kaye retired in January. The press office at the court says Ciparick is the chief judge "as long as the seat remains vacant." If Paterson had simply done nothing, he could have eventually asked the new panel for a new list, and Ciparick, who applied and was rejected by O'Mara's very politicized panel, might actually have gotten a chance to compete for the job.
The same is true should the Senate take no action now. In fact, several Democratic state senators have been making a fuss for weeks about the lack of Latino representation in positions of power--at any level of city or state government. It is an issue that threatened the Democratic takeover of the Senate majority at the same time that Paterson was deciding, unknown to anyone, to displace a sitting Latina chief judge he could have allowed to remain, and perhaps even wind up appointing. His simultaneous selection of the anti-immigrant Gillibrand for the Senate seat compounded Paterson's trouble with Hispanics.
New York's first black governor preferred the comfort of Silver and Kaye and Lippman and the old-line judicial establishment. Lippman had even been careful enough to establish a personal rapport with the governor when Paterson was the Senate minority leader, meeting with him on OCA issues. Unelected himself and unsure of the extraordinary powers of his office, Paterson seems to shrink in Silver's company, now blaming the millionaire's tax on him as if the speaker sets the budget agenda.
The graying gang from Grand Street rolled the neophyte governor from Harlem, and will soon double their choke hold on state government, a triumph of loyalty and intrigue, which, in old New York, adds up to just another measure of merit.
Research assistance by Dene-Hern Chen, Jana Kasperkevic, Sudip P. Mukherjee, and Jesus Ron
Elena Sassower says:
Bravo to the Village Voice!
Will the Voice also be covering tomorrow's Senate Judiciary Committee confirmation "hearing", which was not scheduled until yesterday -- presumably to enable the Senate to install Lippman as New York's highest judge BEFORE the public outcry from the Village Voice's dynamite piece.
The corruption of "merit selection" to our state's highest court, and of judicial selection to NY's lower state courts, both elective & appointive, as well the corruption of the Commission on Judicial Conduct, etc -- all involving Judge Lippman -- has been the subject of nearly two decades of advocacy by our non-partisan, non-profit citizens organization -- which will be testifying tomorrow.
Our website, www.judgewatch.org has a webpage devoted to Judge Lippman's nomination to the Court of Appeals, most conveniently accessibile via the top panel "Latest News"
Elena Sassower, Director
Center for Judicial Accountability, Inc. (CJA)
Posted On: Tuesday, Feb. 10 2009 @ 1:06PM
Eli Vigliano, Esq. says:
Mr. Barrett, why did your Editor and Publisher wait four years to let the public in on this scathing story of Judge Lippman's political chicanery, going as far back as 2002? Why did they hold off its release until the 11th hour before his coronation tomorrow as Chief Judge of New York's Court of Appeals?
Your newspaper was intimately familiar with the Center for Judicial Accountability, Inc., having done a feature story about its Director, Elena Ruth Sassower in 2004 that was the subject of her critical letter concerning such coverage published in 2005 by your newspaper. http://www.judgewatch.org/published/voice-ltr-2-05-activists-judges.pdf
In the fall of that year, her mother Doris L. Sassower, as Director of the Center for Judicial Accountability, Inc., (CJA) courageously challenged the nefarious cross-endorsement deal by the Republican and Democratic party bosses of the Ninth Judicial District that guaranteed Judge Lippman's 2005 election to the NYS Supreme Court in exchange for an illegal quid pro quo in the form of Democratic party endorsement of a Republican lower court judge who had been found "Not Qualified" by the Westchester County Bar Association, thereby setting the stage for his unparalleled meteoric rise up the ladder of judicial success. http://www.judgewatch.org/judicial-selection/judicial-elections-2005/05-09-28-letter-kaye.htm
Yet, curiously, no reference to CJA's trailblazing work in this field appears in your article, suggesting a failure of research or deliberate press suppression. Which is it, Wayne? The public is entitled to know.
Eli Vigliano, Esq., Founder and Chairman of the Ninth Judicial Committee, a local citizens' group formed in 1989 to fight political manipulation of judgeships in New York's Ninth Judicial District, out of which emerged the Center for Judicial Accountability, Inc.
Posted On: Tuesday, Feb. 10 2009 @ 11:47PM
Judges are political. Politicians are political. WOW!!! What a scoop. Wayne, that's just killer investigative reporting! No wonder you have to give your paper away for free.
Posted On: Tuesday, Feb. 10 2009 @ 5:03PM
Lippman Is Pick for Chief Judge
Joel Stashenko, New York Law Journal
ALBANY - Jonathan Lippman, the seasoned administrative judge who has been presiding justice of the Appellate Division, First Department, since 2007, was tapped yesterday by Governor David A. Paterson to become the state's next chief judge, said several sources who had been informed of the choice.
Mr. Paterson told Justice Lippman (See Profile) yesterday afternoon that the governor would send the presiding justice's name to the state Senate for confirmation, sources said. The governor plans to formally introduce Justice Lippman as his choice at a Capitol news conference today.
Justice Lippman would succeed Judith S. Kaye, 70, who stepped down last month due to mandatory retirement rules. Judge Kaye was the first female on the Court of Appeals and its longest-tenured chief judge ever with more than 15 years in the post.
For much of that time, she and Justice Lippman, 63, worked closely promoting the former chief judge's agenda, including creation of more specialty courts and trying to make jury duty less onerous. Justice Lippman served as the state's chief administrative judge from 1996 to 2007, the longest anyone has spent in that top job (NYLJ, Oct. 9, 2007).
But the pair were unsuccessful in convincing state lawmakers to approve the first pay raise for state judges since 1999, a campaign Justice Lippman is certain to take up anew as chief. Judge Kaye's 2008 suit to force the Legislature and governor to give the judges a raise is pending before Manhattan Supreme Court Justice Edward H. Lehner.
Judge Kaye said yesterday in an interview that she is "very, very pleased" and "very excited" by Mr. Paterson's selection of Justice Lippman.
"I think the governor made a wonderful choice," she said.
And while Justice Lippman would undoubtedly blaze his own trail as chief, Judge Kaye said she would be "fibbing" if she did not hope he would continue many of her policies and initiatives.
If confirmed, Justice Lippman would only be able to serve about half of a full, 14-year Court of Appeals term. He would be forced to step down at the end of 2015, the year in which he turns 70.
In addition to supervising the work of the seven-judge Court of Appeals, the chief judge oversees the work of the state's Unified Court system, which has a $2.5 billion annual budget and more than 16,000 employees. The courts had more than 4.3 million new filings last year.
Justice Lippman's long experience as chief administrative judge was thought to give him a leg up against the six other chief judge candidates proposed to Mr. Paterson by the Commission on Judicial Nomination.
At the First Department, Justice Lippman has been credited with a dramatic reduction in the time it takes to decide cases and in getting panels to issue rulings sooner in complex and long-delayed cases (NYLJ, Sept. 25, 2008).
The other chief judge candidates forwarded to the governor by the Commission on Judicial Nomination were Court of Appeals Judges Theodore T. Jones Jr. and Eugene F. Pigott Jr., Second Department Justice Steven W. Fisher and private practitioners George F. Carpinello of Boies, Schiller & Flexner in Albany, Evan A. Davis of Cleary Gottlieb Steen & Hamilton and Peter L. Zimroth of Arnold & Porter.
Mr. Paterson immediately criticized the list when it was released early last month for its lack of diversity - only one of the nominees is black, Judge Jones, and no women made the list. Mr. Paterson's aides said the governor was disappointed that the senior associate judge and only Hispanic on the Court, Carmen Beauchamp Ciparick, did not make the final cut.
Mr. Paterson said he was "outraged" by the racial and gender composition of the list, but conceded he was prohibited by law from submitting a name to the Senate that was not forwarded to him by the panel. He also said it was unfair to the candidates who had gone through the commission's screening and interview process to scrap the list and start a new search, even if it was legal (NYLJ, Dec. 4).
Mr. Paterson asked Attorney General Andrew M. Cuomo to review the recruitment and screening procedures used by the commission and recommend ways to make the process more open and inclusive. The governor has yet to propose changes in the commission selection process.
Jonathan Lippman, 63
Judicial experience: presiding justice, Appellate Division, First Department, 2007-present; chief administrative judge, 1996-2007; Westchester County state Supreme Court justice, 2006; judge, Court of Claims, 1995-97 and 1998-2005
Other experience: deputy chief administrator, Office of Court Administration, 1989-95; principal court attorney, chief clerk and executive officer, Supreme Court, Civil Term, Manhattan, 1977-89; law clerk to Supreme Court Justice Samuel A. Spiegel, 1975-76; law assistant, Supreme Court, Manhattan, 1968-74
Party affiliation: Democrat
Birthplace: New York City
Colleges: B.A., New York University, 1965; J.D., New York University School of Law, 1968
Personal: Married to wife Amy; two children
Term as chief judge would end on Dec. 31, 2015
Justice Lippman was appointed to the Court of Claims by then-Governor George Pataki in 1995, but he did not begin hearing cases until January 2006, when he was elected to the Supreme Court. He also served on the Appellate Term, which hears appeals of city and district court cases on Long Island and in suburban counties north of New York City, before being appointed by then-Governor Eliot Spitzer to the presiding judgeship of the First Department (NYLJ, May 24, 2007).
Justice Fisher, by contrast, has experience as a Supreme Court and Criminal Court judge dating back to 1983, while Judge Jones first joined the Supreme Court bench in 1990 and Judge Pigott first became a Supreme Court justice in 1997.
Judge Pigott joined the Court of Appeals in September 2006 and Judge Jones in February 2007. Judge Pigott also served as presiding justice of the Appellate Division, Fourth Department.
Justice Lippman's confirmation by the Senate is virtually certain. The Senate has never refused to confirm a gubernatorial nomination to the Court since the appointive system began in 1977.
Moreover, Justice Lippman, like Mr. Paterson, is a Democrat. And Democrats took control of the Senate by a 32-30 margin based on the November elections, the first time since 1965 they have enjoyed a Senate majority.
Justice Lippman also is a good friend of Assembly Speaker Sheldon Silver, another Democrat, with whom he grew up on New York's Lower East Side.
But the new chairman of the Senate Judiciary Committee, John Sampson, D-Brooklyn, said yesterday he would not take up Justice Lippman's confirmation until he holds hearings on the nomination commission's selection process.
"For that committee not to put a woman on there, in this day and age, is atrocious," Mr. Sampson said in an interview. "It is unacceptable, not only in my eyes, but in the eyes of all the people in the state of New York."
Mr. Sampson said he would not seek to block Justice Lippman's nomination, which he said Mr. Paterson had done constitutionally under the Court of Appeals' selection process, but that his "first order of business" as committee chair would be to have hearings about the nomination commission's work.
He said he would like to hold the hearings within two weeks.
Judge Ciparick, who has been acting chief judge since Jan. 1, will continue to lead the Court until the Senate confirms Judge Kaye's successor.
Bernice K. Leber, the president of the New York State Bar Association, yesterday called Justice Lippman "a superb choice."
As chief administrative judge, Ms. Leber said, he was "a skilled consensus builder with an innate ability to relate to legislators and the executive as well as judges and lawyers around the state."
Through his ability to build consensus, Ms. Leber added, he was able to implement some of "Chief Judge Kaye's boldest initiatives, including reform of lawyer advertising rules and expansion of the commercial courts."
Ann B. Lesk, the president of the New York County Lawyers' Association, said she hoped the current budget crunch would not hinder Justice Lippman's agenda.
"Justice Lippman has worked diligently to improve the administration of justice in New York," she said. "We hope that the New York state Legislature will provide the resources that are essential to allow New York's courts to flourish under his leadership as chief judge."
Oscar Chase, the co-director of the Institute of Judicial Administration at New York University School of Law, said Justice Lippman is "very smart" and "extremely hard working."
Mr. Chase added, "He knows the court system and administrative structure as well as anyone in the state. In terms of administrative responsibilities of the office, Justice Lippman is the next best thing to a continuation of Chief Judge Kaye's tenure."
But Mr. Chase said Justice Lippman is "to some extent an unknown" in terms of his judicial philosophy considering his short time hearing cases.
"Based on my observation of his professional life, I am sure he will be a jurist sensitive to the needs of the people of this state and to the law he will be sworn to uphold," said Mr. Chase.
Roberto Ramirez, a former assemblyman and president-elect of the Puerto Rican Bar Association, called Justice Lippman "a candidate of impeccable credentials and lifetime commitment and service to the judiciary and court system" but was nonetheless disappointed that the candidate list was not more diverse.
"It is unfortunate that what this process has shown is that there is a historical exclusion of women and Latinos when it comes to the so-called merit selection panel," said Mr. Ramirez. "I believe that what happened this year is a call to reform the system."
E. Leo Milonas, a Pillsbury Winthrop Shaw Pittman partner and former chief administrative judge, said Justice Lippman is the best candidate to take over as chief.
"There couldn't be a better chief judge to replace Chief Judge Kaye," he said. Justice Lippman is "extraordinarily qualified to take over the Court upon Chief Judge Kaye's departure and not miss a beat."
The chief judge makes $156,000 a year, $8,400 more than Justice Lippman made as chief administrative judge and now as presiding justice in the First Department.
If confirmed, he would become the first chief judge not elevated from within the Court since Alton Parker in 1898.
The Scourge of Her Conviction
Activist Elena Sassower annoyed congress, her trial judge, and defenders of free speech—all the way to jail
published: January 25, 2005
Two days before Christmas, Elena Sassower walked out of the Washington, D.C., jail where she'd just finished serving a sentence that should frighten anyone inclined to protest in the halls of power.
photo: Brian Kennedy; Elena Sassower at home with her "silent witnesses"—the boxes of legal documents she brought to her sentencing
For reading a 24-word request to testify at a judicial appointment hearing on Capitol Hill, an act that qualified as "disruption of Congress," Sassower was hit with six months' incarceration—the maximum allowed by law. Despite the grave constitutional implications of her case, not one of the dozen civil rights organizations she'd asked for help came to her assistance: not the ACLU, not Public Citizen, not People for the American Way, not Common Cause.
Her real crime, it seems, was her penchant for being a pest. Reached by the Voice, attorneys from three such organizations refused to comment or spoke only off the record. One attorney privately told the Voice that his group's unwillingness to lend Sassower a hand had "nothing to do with the merits of her claims" and "everything to do with her being a very difficult person." Sassower ended up acting as her own lawyer, doing herself no favors in the trial.
In the days before her May 2003 arrest, Sassower had repeatedly called her home state senators, Charles Schumer and Hillary Clinton, about the confirmation hearing of Judge Richard Wesley, a nominee for the federal appeals circuit. Sassower, of White Plains, had taken the senators a lengthy letter and several boxes containing thousands of pages of legal briefs about Judge Wesley.
A Clinton aide contacted the U.S. Capitol Police, who told Sassower that "continued contact" would be considered harassment and warned her not to attend the Wesley hearing if she intended to disrupt it. According to police reports, Clinton's staff likened her lobbying tactics to "stalking," although the police found that her messages had "a calm and coherent tone" and contained "no threats or harassing language."
Sassower went to the hearing anyway, rising to speak as the chair gaveled the proceeding closed. "Mr. Chairman, there is citizen opposition to Judge Wesley based on his documented corruption as a New York Court of Appeals judge," she read aloud. "May I testify?"
Elena Sassower is that rare kind of activist who presses her issues as if she won't stop—and maybe she can't. She calls, and then follows up with a fax, maybe several faxes. And then she sends e-mail, along with formal letters, multi-page motions, and box after box of documents. As coordinator of the national Center for Judicial Accountability, she has inundated state legislators, oversight agencies, national representatives, the state attorney general's office—anyone and everyone who might listen to her tales of judicial corruption. If she leaves a voice mail and hears nothing back, she just keeps trying. If she talks to you, she may stay on the phone for hours, and if she still goes away unsatisfied, she'll call your supervisor, and that person's supervisor, and so on. "I'm committed and determined," she says. "If nothing comes back, I should be satisfied?"
Jonathan Turley, who teaches constitutional law at George Washington University Law School, finds the Sassower case "extraordinary." Her punishment is unprecedented for a congressional disrupter; it's rare that even raucous outbursts result in charges, let alone jail terms (see sidebar). It also sets up what Turley calls "a worrisome precedent," by which a judge can throw the book at someone simply for expressing political views.
Sassower's sentence means dissidents everywhere will have to think twice before opening their mouths. John Bailey, of the White Plains CitizeNet Reporter, an online news service and one of the few media outlets to write about the implications of the case, sums it up. "Many committed activists are obnoxious and relentless," he says. "Does that mean they should all get six months in jail for speaking out at a Senate hearing?"
At first glance, Sassower, 48, a Hebrew-school teacher from White Plains, seems anything but disruptive. Petite and attractive, she has a bright smile and says "please" and "thank you" almost to excess. Her family and friends paint her as a sincere spiritual leader who lost her two part-time jobs at local synagogues while languishing in jail.
Sassower has dedicated much of her life to judicial reform. In 1989, she and her lawyer mother, Doris, established the Center for Judicial Accountability, which now has several hundred members nationwide. Since then, she has ferreted out corruption on the New York bench, and pressed for public participation in confirmation hearings.
When she talks about issues, her passions take over. She can sound off for hours about the ills of the justice system and the legislative processes that support it, barely stopping to catch her breath. Ask her about judiciary committee hearings, for example. As Sassower talks, she stands and then crouches, her voice growing firmer and louder; she smacks the back of her hand to punctuate her points and offers up countless pages of documentation—each painstakingly researched, with footnotes and cross-references. Just listen:
The dirty secret about federal judicial nominees is that there is no room for public input. Only when you have nominees with extreme political views on either side is there any interest in investigating these nominees. John and Jane Q. Public have no voice in the judicial-selection process and therefore they don't care about what's going on in their own backyard. But they should care. They should want to know about these lifetime appointments that are brokered in political deals, behind closed doors, with no concern for qualifications and no investigation into corruption. People expect this great scrutiny. But the process is a charade, a fraud, and a sham . . .
Even her staunchest allies find her tenacity exasperating.
In retrospect, it was probably her persistence that set off the chain of events putting her behind bars. In February 2003, while scanning the New York Law Journal, a short item caught her attention. It announced that President Bush was eyeing Richard Wesley, then a New York Court of Appeals judge, for the U.S. Court of Appeals for the Second Circuit, where he now sits. The news stunned Sassower, who'd tangled with Wesley before.
In 2002, he and five of his former court colleagues committed what Sassower calls a "willful and deliberate act of deceit": They ruled against a motion to reconsider a civil case that the Center for Judicial Accountability had filed. The group was suing the state's judicial-review board, claiming it amounted to a sham. By quashing the case, Wesley, in Sassower's words, "perpetuated the fraud."
She swung into action. First she dialed the office of the Senate Judiciary Committee, relaying that the center "strenuously opposed" the Wesley nomination. Then she sent a two-page letter, requesting the "rules and procedures" for submitting public testimony.
In May 2003, two weeks before Wesley's scheduled confirmation hearing, she trekked to D.C. to visit the committee and her senators, Hillary Clinton and Charles Schumer, bringing to the office of each a 27-page memorandum that outlined, in meticulous detail, the center's opposition, and six boxes filled with legal briefs.
She heard nothing.
On May 20, 2003, she finally landed a phone conversation, lasting 40 minutes, with two of Clinton's aides. Over the next two days, according to court records, she left two phone messages and sent a fax to Clinton's office.
On May 21, 2003, the records show, the Capitol Police contacted the activist after getting a report from Clinton's office about "a telephone call and fax" from Sassower. She had become such an irritant that the police effectively ordered her to stop calling Clinton's office and cautioned her against speaking out at the hearing on May 22.
Sassower was determined to be heard. "The issues were too important for me not to go down there," she says. Besides, she didn't intend to cause a scene. All she wanted was "to respectfully request to testify."
She arrived at the Dirksen Senate Office Building's room 226, the site of the hearing, and sat in the last row. For two hours, she kept her mouth shut. Only after she heard Senator Saxby Chambliss, of Georgia, who was presiding over the proceedings, bang the gavel and declare, "We will stand adjourned," did she rise from her seat. What happened next remains in dispute.
Sassower admits she read from her statement, asking to testify. But prosecutors claim she yelled over Chambliss. "Judge Wesley, look into the corruption of the New York Appeals Court," they quote her as saying in court documents. "I want to testify." When Chambliss directed police to restore order, the charging papers say Sassower "continued to shout" and "loudly demanded three times, 'Are you directing that I be arrested?' " Prosecutors say she clung to a chair to prevent the officers from escorting her away.
The official version sounds dramatic and disorderly, but a videotape of the hearing—which Sassower admitted into evidence at her trial—corroborates her story. On the tape (linked from her group's website, judgewatch.org/disruptionofcongresscase.htm), Chambliss strikes the gavel and calls the meeting to a close. A faint voice says something about corruption. Chambliss says, "There must be order in the room." Yet there is no ruckus. No protest. Within seconds, the video shows two officers ushering away a calm Sassower.
Watching the video today, Sassower cannot quite shake the absurdity of what has transpired. Amazed, she asks, "How could what I did ever support a disruption of Congress charge?"
That's a good question, since her actions don't fit the profile of a disrupter. Mark Goldstone, the D.C. attorney who advised Sassower on her defense, has spent 20 years representing thousands of activists charged with disrupting Congress. Many got arrested after conducting sit-ins and other protests inside the galleries or the Capitol rotunda. The ones, like Sassower, who attended public hearings really shook things up. They unfurled banners, read petitions, hollered obscenities, blew whistles. In short, he says, "They did all kinds of crazy stuff."
Goldstone figured the U.S. Attorney's office would drop the charges. But it didn't. Spokesperson Channing Phillips says the office weighed the evidence—including the video—and considered it substantial. "We don't make the law," he says. "We just enforce it."
By all accounts, the April 2004 trial, held in D.C. Superior Court, bordered on spectacle. In preparing her defense, Sassower had clashed frequently with the presiding judge, Brian Holeman. She filed gargantuan pre-trial motions that questioned his impartiality and described him as "blind as a bat." More than once, she tried to have the judge removed from the case.
The sparring continued at trial. "Things were pretty out of control," recalls George McDermott, a Maryland activist who attended the proceedings to offer Sassower moral support. On the first day, the judge set the tone by positioning a U.S. marshal to guard Sassower for the duration. To McDermott, the message seemed clear: Say anything, and you'll go to jail.
At one point, while Sassower was testifying, the judge had her removed from the courtroom and placed in a holding cell for an hour. (Citing the pending appeal, Holeman declined to comment for this article through a court spokesperson.)
Given the environment, Sassower's supporters weren't surprised that a jury found her guilty. But no one was prepared for what happened next. Prosecutors had recommended only a suspended five-day jail term, six months of probation, and a course in anger management. A report by D.C. Court Services—which aptly called Sassower a "dedicated" activist whose "passion to demand change is often perceived as overzealous"—suggested community service.
At the June 28 sentencing, Holeman disregarded this advice. At first, he handed down a 92-day prison term, offering to suspend jail time if she'd agree to a two-year probation. He laid out the elaborate conditions: Sassower would have to perform 300 hours of community service, pay up to $750 in fines, maintain a daily log of activities, stay away from the Capitol grounds, avoid writing or calling senators, undergo anger management therapy, and write letters of apology to, among others, Clinton, Schumer, and Judge Wesley.
Sassower viewed this last as the "most odious" of the conditions. "I am not remorseful," she declared, "and I will not lie."
"Be quiet," the judge said. "Any effort to communicate additional information will constitute a violation of your probation."
He continued: "Ms. Sassower, the answer is yes or no. Do you accept the conditions of your probation?"
Holeman retracted his offer and doubled his sentence—to 180 days.
Court watchers were shocked. "Elena deserved no more than six seconds in jail," Goldstone says, let alone six months.
It's hard to say whether those who took Sassower to court—or got her arrested—agree. Asked if prosecutors believe she got what she deserved, Phillips said: "I expect her appeal will deal with whether her sentence was fair, and this office does not comment on cases pending before the appeals court." Requests from the Voice seeking comment from senators Clinton and Schumer were not answered.
Truth in consequences
The law against disrupting Congress—"to utter loud, threatening, or abusive language, or to engage in any disorderly or disruptive conduct . . . with the intent to impede, disrupt, or disturb the orderly conduct of any session of Congress"—leaves room for interpretation. Which may explain why Elena Sassower had the book thrown at her and dissenting citizens have not. Consider these recent incidents:
In May 2004 eight protesters at a Senate Armed Services Committee hearing unfurled a banner and hollered, "Fire Rumsfeld for war crimes!" They were not arrested.
In April 2004 a human rights activist went to the confirmation hearing of John Negroponte, the U.S. ambassador to Iraq. As Negroponte testified, the activist stood up and called the then appointee a "state terrorist." He was merely asked to sit down and be quiet.
In September 2003 a protester interrupted the testimony of L. Paul Bremer, the former head of the Coalition Provisional Authority in Iraq, at a Senate Foreign Relations Committee hearing. He was escorted away without incident. The next day, he returned and protested again. Only then was he charged with disrupting Congress. In July, he was convicted on two counts and sentenced to the maximum of six months for each. K.L.
Sassower fulfilled her six-month stint at the Correctional Treatment Facility, a D.C. medium-security jail, languishing in a wing populated by drug offenders. She was confined to her cell for 23 and a half hours a day. She tried to occupy herself by drafting legal briefs on scraps of paper—filing three unsuccessful motions for early release before a team of pro bono attorneys took on her case last September.
"Jail is a dreadful place," says Sassower. "People regarded me with suspicion. They were hostile. I was frightened."
That Sassower had the courage to withstand prison has made her a cause célèbre within the judicial-reform movement. Her case has caught fire on the Web, appearing on legal-victims' sites and citizen-rights listservs. She's enjoyed an outpouring of support—from letter-writing campaigns to petitions to honorary poems. Last month, after getting a flurry of e-mails from across the country, the CitizeNet Reporter named Sassower a "White Plains person of the year" and "defender of the Constitution."
Her criminal case, in many ways, has done more than her years of dogged activism to expose abuses in the justice system. After all, the system failed Sassower at every turn—from her arrest to her sentencing. If her ordeal can shed light on misconduct, she says, "maybe what happened to me will force real reform."
For now, there is Sassower's planned appeal. Alyza Lewin, one of the four leading attorneys working on the case, says the legal team is now researching its brief, which the court will probably hear in the spring. The appeal will argue that Sassower's actions don't fit the definition for disrupting Congress, and may challenge the law's constitutionality.
Her attorneys say citizens shouldn't have to feel cowed by the prospect of six months in jail. "I hope we get her conviction vacated," Lewin says, "not just for Elena's sake, but for the public's."