July 01, 2014

Sidebar: The Appearance of Impropriety

We cannot allow the extreme politicization of society to infect the federal judiciary.

Kenneth P. Nolan

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In 1990, there were 2,262 murders in New York City; 147,123 cars were stolen; 100,280 robberies and 122,055 burglaries were reported. (Many more were committed.) Subway doors wouldn’t open and many simply jumped the turnstile without a thought of paying or being arrested. Signs were posted in cars: “No radio. Already stolen.” The streets were filthy; water and steam pipes routinely burst, potholes were as big as the Grand Canyon. Scary squeegee men would pounce at every red light, smearing your windows, and then scratch your car if you didn’t fork over a tip.

Time magazine had a cover story, “The Rotting of the Big Apple,” which detailed how four children were shot to death by stray bullets in their homes or while playing on the sidewalk; how nursery teachers taught their students to hit the floor at the sound of “firecrackers”; how 59 percent of New Yorkers wanted to leave. The brazen, out-of-control violence was typified by the murder of a 22-year-old tourist from Utah who was attacked even though it was only 10 p.m., he was with his family, including two other adult males, and was in a well-lit subway station. Despair and desperation were in our faces, our voices. And I bought a home in Brooklyn.

“You’re a moron, an idiot, a jerk,” I was told in words always accompanied by adjectives once banned from TV. “You have kids, girls. You can’t let them go out alone.” Childhood pals, who loved the Brooklyn of our youth, packed up and fled. They begged me to join them on Long Island, Jersey, the burbs where you could stroll the streets without having a knife thrust in your face.

“You never walk with traffic on the side streets,” Judge Sal DeMatteo remarked one evening in those terrifying times. “They’ll come up behind you in cars, jump out, and mug you. It happened to me a few times. Always walk against traffic so you can see the cars coming toward you.”

Stop and Frisk

Then came Rudy Giuliani, Police Commissioners Bratton and Kelly, and a new attitude—quality-of-life crimes were prosecuted under the “broken windows” theory: minor offenses would not be tolerated. One client whose avocation was loan-sharking explained it simply: “I never carried ID so if I was stopped, I would just make up a name. The cop would write a ticket and I’d rip it up. Now if you don’t have ID, you’re arrested, put through the system. They check for warrants. Now everyone carries ID. That Giuliani doesn’t fool around.”

All the neighborhood teens, including mine, were cited for underage drinking, being in the park after closing, public urination, or having an open can of beer. In criminal court, the judge looked over the hundreds of those cited for these offenses and said with a smile, “The fine for it going in is $25, going out it’s $35. Don’t ask me why, but that’s the rule. Who wants to plead guilty?”

Along with other factors—immigration, a booming economy, increased number of police officers, computer tracking of incidents—crime began to decrease, something I literally believed would never happen. Brooklyn neighborhoods like Fort Greene, Williamsburg, parts of Park Slope, that were dangerous and devoid of life after dark began to gentrify. Since 1990, the transformation of the Apple, especially Brooklyn, has been staggering. Sleek condos, hip shops, and Asian-fusion restaurants abound. Kale and croissants have replaced the potatoes and jelly donuts that were my staples. Gentrification, however, has wiped out many working-class neighborhoods. Instead of neighbors like cops, bus drivers, and iron workers, the street where I and my father were born now has authors, doctors, and architects.

Aggressive policing, often confrontational, was begun by Mayor Giuliani and continued under Mike Bloomberg. New York is now safe. In 2012, there were 417 murders, 20,144 robberies, and 19,170 burglaries. In 2013, homicides dropped to 333.

One police tactic has been “stop and frisk,” where cops routinely stop young black and Hispanic males in an effort to confiscate guns. Millions have been questioned over the past decade. The police claim it removes guns from the streets, is a deterrent, and has saved the lives of thousands of young minority men. Opponents, who have challenged its constitutionality, argue that it’s racial profiling, constitutes harassment, and has not been proven to reduce crime. Mayor Bill de Blasio’s vow to end stop and frisk was the focus of his campaign. He easily won both the primary and general election.

No doubt, the police racially profile. Ninety percent of those stopped are minorities. It is also true that, in the first six months of 2013, 74 percent of shooting victims were black and 21 percent were Hispanic, and 70 percent of those arrested for shooting were black and 25 percent were Hispanic. Obviously, it’s a contentious issue. I support the policy, but let’s be honest—neither I nor my kids are being stopped. I’m certain it’s demeaning, intimidating, yet effective. But this is not about whether stop and frisk is right or wrong.

A federal class action was brought challenging its constitutionality. There was a nine-week nonjury trial, and Judge Shira Scheindlin in the Southern District of New York found stop and frisk unconstitutional with an indirect result of racial profiling. She appointed a federal court monitor to oversee a series of reforms. The city asked the Second Circuit for a stay. In an unusual ruling, the Second Circuit granted the stay and then removed Judge Scheindlin, stating she compromised the “appearance of impartiality” by granting interviews with the media, making public statements, and improperly applying the “related case” rule. The city had not requested Judge Scheindlin’s removal, and the decision was a scathing rebuke to a judge who had handled this matter for years.

Judge Scheindlin, in an unprecedented application, moved through counsel to appear and seek reconsideration of her removal. The Second Circuit decided that a sitting district court judge could not procedurally challenge its order, but the three-judge panel then emphasized that Judge Scheindlin was not guilty of misconduct and had merely given the appearance of partiality. Nonetheless, the case was reassigned to another judge.

The Uniqueness of the Federal System

The federal system is special. Most often, judges toss their predilections aside once they don their black robes. I have litigated before Judge Scheindlin, whom I found to be intelligent, hard-working, and fair, like almost all federal judges. I realize that favors, often granted in state courts, occur in those majestic courtrooms as well. And I know that social and political philosophies influence decisions. Yet, there’s a belief that in federal court you’ll litigate before a judge who will listen and rule equitably.

Politically, ours is a broken system. Right and left hurl venom daily. Incompetence and distrust abound. Amazon can handle 25 million Internet inquiries in a day, while our new health care system breaks down if a few thousand try to log on. Instead of seeking solutions to help ordinary citizens, both parties’ only purpose is to win the next election. We cannot allow the extreme politicization of society to infect the federal judiciary.

Yes, the appointment of federal judges is very political. Appointed for life, they must maintain an aura of integrity, independence. There was little doubt how Judge Scheindlin would rule. During the trial, her interviews and statements—even though not about the trial before her—made it clear that she favored those challenging stop and frisk.

Judge Scheindlin’s words and actions are not isolated incidents. District Judge Richard G. Kopf wrote candidly in a blog on the role of the federal trial judge. In a book, Judge Richard Posner of the Seventh Circuit appeared to question whether a decision he joined upholding a voter identification law was correct. In a magazine essay, Judge Jed Rakoff criticized the government’s failure to prosecute senior financial executives for misdeeds.

However difficult it is, judges must speak through their rulings. They must resist the temptation to prejudge or comment even when under attack, resist the allure of social media to correct a misperception, to further explain a finding. Years ago, I was waiting to see the trial assignment judge in the Bronx state court. The conference before mine had just ended. Something one of the attorneys said enraged the judge. He ranted at his law secretary: “I want to screw that bastard. Tell me how I can I screw him,” and on and on. Not what we learned in law school.

Very difficult to be objective, to remain silent in the face of inequity, to turn the other cheek when politicians desperate for a few votes castigate judges. Much more fun to ensure that the deserving party triumphs. Yet, judges must maintain the appearance of impartiality. They must be disciplined, honest, and fair. If a judge wishes to legislate, the answer is to resign and run for office. For if the federal system becomes just another political arena, then we have lost not only our profession but also our nation.

Kenneth P. Nolan

The author, a senior editor of Litigation and the author of A Streetwise Guide to Litigation (ABA Publishing), is counsel to Speiser, Krause, Nolan & Granito, Rye Brook, New York.