Judge Baer (NYLJ/Rick Kopstein)
Judge Harold Baer Jr. who served on the bench in the Southern District for 20 years, died Tuesday night, leaving legacy of commitment to civil rights and diversity. He was 81.
Services are planned for Sunday at 1:15 p.m. at Riverside Chapel, 180 West 76th St.
A 1994 appointee of President Bill Clinton, Baer had a career that included a stint as chief of the Criminal Division in the Southern District U.S. Attorney’s Office, service on the Mollen Commission investigation into police corruption and 10 years as a state Supreme Court Justice in Manhattan.
Among the many cases Baer presided over during his long career was the endless litigation over unconstitutional confinement conditions for pretrial detainees at Rikers Island known as the Benjamin case. The case was almost 20 years old when Baer inherited it from Judge Morris Lasker, and he presided over it for nearly another 20 years, issuing dozens of rulings on detainee searches and discipline, setting population limits to ease overcrowding and riding herd on jail officials to enforce the terms of consent decrees.
Just last week, Baer chided Correction Department officials for failing to provide relief to Rikers detainees in solitary confinement from the stifling heat in their cells—a violation of his 2004 order in the case.
‘A Very Forceful View’
Baer was born in 1933 to the late Edna Jacobus and Harold Baer, both New York University Law School graduates and longtime Liberal Party activists. Harold Baer served as a City Court judge and a state Supreme Court Justice.
A graduate of Bronx Science High in 1950, Hobart College in 1954 and Yale Law School in 1957, Baer’s first job was as assistant to the general counsel at the Greater New York Mutual Insurance Company. He moved on in 1959 to the New York State Commission on the Governmental Operations of the City of New York, the New York State Commission of Investigation, and did his first stint as an assistant U.S. attorney in the Southern District from 1961 to 1967, serving as chief of the Organized Crime and Racketeering Division under Robert Morgenthau from 1965 to 1966.
Baer served two years as executive director of the Civilian Complaint Review Board at the New York Police Department, did a brief turn in private practice, then returned to the Southern District, where he was first assistant U.S. attorney and chief of the Criminal Division under Whitney North Seymour from 1970 to 1972.
On Wednesday, Seymour recalled his first encounter with Baer and his wife, Dr. Suzanne Baer, at a meeting on fair housing in Greenwich Village in 1959.
“You could see he had already formed opinions from both his family background and from law school—he had a very forceful view of the difference between right and wrong and the importance of helping people and protecting their rights,” Seymour said.
“Over the years, that manifested itself again and again,” he continued. “When he was chief of the Criminal Division, it was he who came up with a plan for the deferred prosecution of people who were arrested for narcotics possession and use and crimes related to that. And he got the Probation Department to go along with it and set up a practical way to make that happen instead of just doing the dumb thing and locking people up.”
From 1972 to 1982, Baer was again in private practice. In 1982, he began 10 years as a state Supreme Court justice, serving in the same chambers as his father, who was given special dispensation to swear him in. Baer, who was initially a candidate for lieutenant governor on the Liberal Party line with Mario Cuomo, left the ticket to run for Supreme Court justice.
Baer worked from 1992 to 1994 as executive judicial officer of Judicial Arbitration and Mediation Service, Inc. (JAMS) while serving on the Mollen Commission to investigate alleged police corruption before getting the call for the federal bench in 1994. He took senior status in 2004.
“I think he had the street smarts of a state court judge and the real world humanity of what people see in state court every day,” said Southern District Judge Richard Berman, a colleague. “At the same time, he had the skills and ability to handle the federal cases, which are sometimes more complex—so he had the whole package. He was a real people person.”
Baer got into trouble early into his career on the bench. In 1996, he suppressed almost 80 pounds of cocaine and heroin seized near the George Washington Bridge from the trunk of car belonging to Carolyn Bayless, as well as her 40-minute taped confession.
Officers in an unmarked car had seen four men place large duffle bags in the trunk of a car and when the men spotted the police, they ran away.
Police used their flight as a basis for reasonable suspicion to search the car, but Baer disagreed. He said people in the Washington Heights neighborhood “tended to regard police officers as corrupt, abusive and violent” and commented that “had the men not run when the cops began to stare at them, it would have been unusual.”
The comments and the ruling drew a firestorm of criticism, prompting 200 members of Congress to write to President Clinton demanding the judge’s resignation. Baer reversed himself three months later, expressing regret for his “hyperbole” that “may have demeaned the law-abiding men and women who make Washington Heights their home and the vast majority of the dedicated men and women in blue who patrol the streets of our great city.”
The criticism abated when then-Chief Judge Jon Newman of the U.S. Court of Appeals for the Second Circuit and three former chief judges came to Baer’s defense. The judges issued a statement to Legal Times saying “the recent attacks on a trial judge of our circuit have gone too far” and “do a grave disservice to the principle of an independent judiciary.”
Baer himself drew on that experience in his 2011 book for the American Bar Association, “Judges Under Fire: Human Rights, Independent Judges and the Rule of Law.” Baer traveled to other countries and interviewed judges for the book and argued that Democracy was in peril in places with no respect for judicial independence.
More recently, Baer was criticized by U.S. Supreme Court Justice Samuel Alito Jr. in November 2013 for his practice of encouraging racial and gender diversity of counsel in class actions where the plaintiff class is made up primarily of minorities or women.
In an opinion in the antitrust class action against Sirius XM Radio Inc., in which the Supreme Court denied certiorari, Alito said, “I am hard pressed to see any ground on which Judge Baer’s practice can be defended.”
In an interview with Reuters in December, 2013, Baer said Alito lacked “either understanding or interest” in discrimination, “So for him to talk about it as if this is something we shouldn’t look at is unfortunate.”
In 2002, Baer found unconstitutional a New York state statute used by New York City to bar Ku Klux Klan members from wearing masks at a public demonstration, saying the American Knights were protected by their right to anonymous speech and expressive conduct of symbolic speech. The Second Circuit reversed in 2004.
Baer presided over the 2003 settlement of a class action charging Metropolitan Life Insurance Co. with systematic discrimination against black and other non-white policy holders. Of the settlement, in which some 40,000 people submitted claims, Baer said there was little doubt that “allowing this case to continue to trial would lead to prolonged, expensive, and complex litigation, which would be highly unfavorable to many of the elderly class members, who may not survive the elapsed time it may take before all appeals are exhausted.”
In 1981, Baer formed the Network of Bar Leaders, now a coalition of 50 member bar associations in New York dedicated to improving and expanding communication among local, county, minority, ethnic, speciality and women’s bar associations.
“Judge Baer was a tireless advocate for making sure that minority voices were included in the most important conversations facing the legal profession and he ensured that Network played a role in amplifying those important voices,” said Raymond Dowd, the current president of Network.
Baer, a former president of the New York County Lawyers Association, was honored at a Network reception last week. He was introduced by Philip Schatz of Wrobel Schatz & Fox, who credited the judge for encouraging diversity of class counsel, initiating deferred prosecutions in drug cases, advocating rehabilitation and record expungement for convicted felons, supporting sentencing reform and other efforts.
Schatz also praised Baer’s work on expanding opportunities for minority law clerks. When he was president of NYCLA, Baer and his wife began to provide law students of color with eight-week stipended internships with state and federal judges in 1989—a program that NYCLA renamed “The Hon. Harold Baer Jr. and Dr. Suzanne Baer Minority Judicial Internship Program” in 2011.
“I appeared before him when he was a Supreme Court justice and a district court judge,” Schatz said Wednesday. “This is a guy who had a lifelong commitment to diversity and civil rights, and he’s taken a lot of heat for it, but it’s genuine and it comes from his parents.”
“He’s a guy whose heart was really in the right place,” Schatz added. “He loved being a federal judge—he said he could think of no better job.”