By Harold Baer Jr., American Bar Association, 134 pages, $39.95
An independent judiciary adhering to the rule of law is so fundamental to the successful functioning of a just society that 21st century Americans cannot conceive of a social order that does not recognize that basic principle. However, in “Judges Under Fire,” Judge Harold Baer, Jr. of the U.S. District Court for the Southern District of New York, in a short beautifully written paperback, reminds us that preservation of judicial independence and adherence to the rule of law requires constant vigilance.
Motivated by an unexpected event that challenged his belief that the rule of law is immutable in America, Judge Baer focuses on events that demonstrate the corruption that ensues when the judiciary is forced to bend to the will of external authority. In each of the first six well researched chapters, the event described is woven into its historical context; thus the reader has a sense of the social order in which judges operated. The seventh chapter deals with the case that put Judge Baer’s name in tabloids across America.
The reader is first introduced to Scotland 200 years ago where the highlands the Countess of Sutherland, Laird of the Highlands, decided to promote wool production. Her agent, Patrick Sellar, used extremely brutal methods to clear the land of peasantry, burning houses and forcing aged, impoverished, and infirm tenants to leave. Some peasants sued. While Sellar’s acts were clearly illegal, the judge took his side, summed up the evidence in his favor and directed the jury to acquit him on all counts.
We go next to New York in 1734. Lewis Morris, an aristocrat whose family owned huge tracts in the Bronx (Morrisania) and New Jersey had served as Chief Justice of the Supreme Court of New York for 20 years. A new royal Governor, William Cosby, sued the acting governor, Rip Van Dam, for part of the salary that had been properly paid to Van Dam before Cosby’s appointment. Knowing that he could not prevail in a jury trial, Cosby deemed the action to be partly equitable and established a hybrid tribunal composed of Morris and two judges allied with the governor. Morris issued a blistering opinion declaring both that Cosby lacked the power to create the court, and that it had no jurisdiction over the case. Cosby responded by removing Morris, who then went to England in 1735 to appeal to the Privy Council of King George II. The Privy Council agreed that Morris’s dismissal was improper, but instead of restoring him to his position on the Supreme Court, made him Governor of New Jersey. At least in this instance, the rule of law prevailed in the colony of New York.
The loss of an independent judiciary and the destruction of the rule of law in Germany in the late 1930′s is described through the tragic story of two University students, Sophie Scholl and her older brother Hans, who started out as idealistic members of Hitler Youth groups. But both became disillusioned and openly challenged Hitler’s philosophy by distributing a pamphlet unsympathetic to Nazism. They were arrested, tried, convicted and executed within days. Hitler had corrupted the previously independent German judiciary by removing all judges unsympathetic to Nazi philosophy. Among those tried for war crimes at Nuremberg were 16 jurists from the Reich Ministry of Justice. Ironically, the judges were fairly tried by judges from the United States, and 10 were convicted for their role in perverting justice. Although the horrors of Nazi Germany are familiar, Judge Baer provides new information and insights into what were disastrous miscarriages of justice in the 20th century.
Taking us further around the world, Judge Baer recounts tales of human rights violations in contemporary China through interviews with a human rights lawyer, Thomas G. Guo, now living in Vancouver. Chinese human rights lawyers face detention, arrest and imprisonment.
Pakistan has suffered a series of military coups and constitutional suspensions including the dismissal of revered Supreme Court Justices Saiduzzaman Siddiqui and Iftihar Chaudhry. In 2008, lawyers and judges around the world, led by New York City lawyers, rose up to support restoration of an independent judiciary in Pakistan.
A shining star in Slobodan Milosovic’s repressive regime in Serbia was Supreme Court Judge Leposava Karamarkovic. For her courage in upholding judicial independence in the face of a severely corrupted judiciary and her work in founding an honest Judges’ Association, she received the first American Bar Association Rule of Law Award.
Judge Baer concludes with the nightmare he lived through in 1995, less than a year after his appointment to the federal bench, when he granted a motion to suppress 80 pounds of heroin and cocaine that had a street value of over $5 million and had been obtained by stopping a car as the driver approached the George Washington Bridge. Judge Baer had served 10 years as a state Supreme Court justice following years in private practice, had served as chief of the organized crime and racketeering unit and chief of the criminal division, and then been first assistant U.S. attorney in the Southern District U.S. Attorney’s Office. Such suppression motions were fairly routine. At the hearing, Judge Baer found that based on the testimony of the junior officer who claimed to have witnessed a drug transaction and the videotape confession of the defendant, Carolyn Bayless, the police did not have the reasonable suspicion sufficient for the arrest.
Fireworks exploded in response to this ruling on the suppression motion. Two hundred members of Congress wrote to President Bill Clinton demanding that he seek Judge Baer’s resignation. White House spokesperson Michael McCurry weighed in with a threatening statement, but later changed course when Second Circuit Judges, led by Chief Judge Jon Newman, excoriated the other two branches of government for their clearly unconstitutional demands, and pointed out how the criticism had reached a level that threatened judicial independence.
Judge Baer granted a motion for a rehearing during which the government presented a fuller case and defendant inexplicably took the stand. The judge justified his decision to reverse his ruling by finding sufficient inconsistency in defendant’s testimony and corroboration in the second police officer’s testimony. Needless to say, that decision also invited criticism.
I have barely touched the surface of each of these riveting stories, but each serves as a reminder of how important the rule of law is and yet how fragile it is even in societies that pride themselves in having an independent judiciary.
My own experience with mean-spirited editorials and ad hominem attacks by political figures despite appellate affirmances, although not as orchestrated or vitriolic as those confronting Judge Baer, made these stories particularly cogent. Judges and lawyers will find these previously unknown but well crafted accounts compelling. The book would also make an excellent text for college or law school seminars and CLE courses, in that each chapter provides challenging material for classroom discussion.
Justice Helen E. Freedman serves on the Appellate Division, First Department.