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A federal judge Tuesday assailed the performance of defense attorneys representing former Staten Island Ferry captain Richard Smith, suggesting they had failed their client in plea negotiations over the Oct. 15, 2003, crash that killed 11 passengers. The judge, Edward R. Korman, the chief judge of the Eastern District of New York, appointed an advisory counsel, Peter R. Kirchheimer of the Legal Aid Society, to represent Smith during sentencing. He also suggested that Smith’s present attorneys, Joel S. Cohen and Alan M. Abramson, who were retained immediately following the crash, would be relieved from the case. Smith has pleaded guilty to 11 counts of seaman’s manslaughter and admitted to being reckless for reporting to work fatigued while taking pain killers and other medication. Though Judge Korman said there was enough factual basis for a guilty plea on the manslaughter charges, he disputed the recklessness aspect of the allocution, saying it was a mixed question of fact and law, and something that Smith, who passed out at the ferry’s controls for undetermined reasons, was not aware of and likely could not admit to. “This guy was addicted to these drugs,” Korman said. “I don’t think he had a conscious notion that one, much less 11 people, were going to get killed because he went on the boat in the condition he was in. It was negligence.” A finding of negligence versus recklessness, in Smith’s case, could result in a sentence from 10 to 16 months in prison compared to a sentence of 21 to 27 months in prison. Cohen and Abramson issued a joint statement via telephone defending their work: “We negotiated with the government for over 10 months and ultimately entered a plea that we felt was in our client’s best interest and reflected his desire to accept responsibility.” Korman said the recklessness plea had long troubled him. He revealed the extent of his concerns for the first time Tuesday in several sharp exchanges during two sidebars. The remarks were inaudible, but were replayed on tape for reporters later in the afternoon. The judge had scheduled the hearing to listen to testimony about Smith’s medical condition at the time of the crash and the possible causes for his episode. He asked Cohen and Abramson if there was a strategic reason for an extensive plea that included an admission of recklessness, thereby allowing the government to seek upward departures for Smith. “What did you get for it?” the judge asked. Cohen answered that prosecutors had declined to bring further charges, such as obstruction of justice, in exchange for the plea, but the answer did not satisfy Korman. “You see this as a favorable plea agreement? He pled to everything,” the judge told the attorneys. He added later: “Your job as a lawyer is to put the government to its burden of proof, that’s what your job is.” The lead prosecutor on the case, Andrew J. Frisch of the Eastern District U.S. Attorney’s Office, defended the decisions of Cohen and Abramson, saying they had done an “incredible” job “at every step.” Korman disagreed, saying, “Well thank you, but I don’t think so.” Frisch added that the government clearly thought Smith had been reckless. “It may be, it may not be, that’s for me to decide,” Korman said. “The question is whether it was arguable whether a reasonably competent attorney could have made an argument.” When Korman announced that he was appointing Kirchheimer, the attorney-in-charge of the Eastern District office of Legal Aid’s Federal Defender Division, Cohen asked if he and his partner were being relieved from the case. “At the end,” the judge said. Kirchheimer sat in the audience during the morning, as three medical experts testified that no definitive conclusions could be drawn about why Smith passed out at the controls. In a second sidebar Tuesday afternoon, Kirchheimer told Korman that he had focused on the fact that Smith did not know what happened to him — whether it was a stroke, a moment of instant sleep or something else — and how that might affect the sentencing phase. Kirchheimer also asked the judge to put off any decision on the ultimate fate of Cohen, a solo practitioner, and Abramson, of Schuman, Abramson & Morak. He said Smith had developed a substantial relationship with the pair. Smith and his three attorneys then spent almost an hour in the courtroom, going over the case in private. Korman said the hearing would resume July 11.

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