Joel Cohen
Joel Cohen ()

Which quarterback hasn’t second-guessed his decision to throw a game-altering interception, when he could have simply grounded the ball or fallen on it instead? Indeed, which thinking person hasn’t rethought (and even derided), time and time again, important life choices, or even less momentous decisions? It’s the very nature of life. Lawyers are people, and they do it too—the great ones, maybe more so.

But what about judges? We seem to think that once a judge puts pen to paper and finally decides a case or issues an order, the decision is final in his own mind—there is no reverie; no compunction; no troubling self-doubt. But, it seems, it isn’t always like that. Judges, too, inwardly question themselves—sometimes the short-shrift, the shortsightedness, the personal bias, or even that maybe they missed something important when they decided a case or made a pivotal ruling.1

But what if it’s too late: the judge’s role in the case is over, the book has been closed, and he now lacks the capacity of his official status to self-correct. He has ruled once and for all, and the case is “upstairs,” or completely over! And to this particular “self-reevaluating” judge, a manifest injustice has occurred, and lies, to some extent or even completely, at his doorstep.

Yes, it’s true. A guilt-ridden juror who believes, in retrospect, that her guilty vote was mistaken may decide, many do, to contact the defense attorney, the prosecutor or even the judge to try to alter the injustice that continues to harp at her (“I succumbed at crunch time to an avalanche of votes against the defendant.”) But, unless she claims that she was somehow tampered with, we know that precious little weight will be given to her “rethinking.” The law requires finality,2 and consequently it pays little attention to jurors who can’t sleep, remorseful over their guilty votes. Such re-thinking, as it were, is often tossed in the wastebasket with little fanfare by trial and even appellate judges. And that is the law’s dictate—both federal and state.

But for judges—and maybe even former judges—who have such second thoughts, the results may sometimes be altogether different. Judges who come to believe that their sentences were, in retrospect, too harsh, may occasionally ask parole boards for leniency or otherwise early release. They may actually go so far as to petition a governor or even the president for clemency for the convicted felon.3

And, sometimes, more direct to this piece, although they no longer have jurisdiction over the case, they employ the majesty of their robes—and, surely, it is indeed their robes—or the judicial station they previously held, to ask either the prosecutor or even a successor judge (in a position to do something about it) to revisit the case. And when they do, soulfully claiming that their decision or vote as a judge or appellate judge had been or may have been mistaken, typically they gain more traction than would mea culpas from one or more jurors4 who had ironically been instructed by the presiding judge at trial that they alone were the judges of the facts. So, it seems—there are judges and judges.

Barbaro’s Mea Culpa

The impetus for this discussion is the recent press report that now-retired Brooklyn Supreme Court Justice Frank Barbaro, somewhat guilt-ridden, has come forward to seek to undo what he considers an injustice over his non-jury murder conviction (and sentence of 15 to life) of a then 24- year-old white man, Donald Kagan, in 1999.5 Importantly, the shooting victim was a 22-year-old black man, Wavell Wint.

The cross-racial nature of the altercation, Barbaro now says, was critical to his judgment in the case—for, going back to the 1950s, he had been “socially/politically active in civil rights causes, particularly cases where black men were prosecuted or targeted because of their racial identity.”6 Describing a litany of civil rights issues in which he had become an activist or follower—the death sentence of Willie McGee; the death of Yusuf Hawkins; the murders of Medgar Evers and Emmet Till; the arrests and beating of Martin Luther King Jr.’s followers, and then King’s assassination—Barbaro came to realize that his experiences and sympathies had prevented him from being impartial when it came to judging, effectively as a single juror, the white-skinned Kagan’s self-defense defense.7

Because of the sleepless nights he apparently encountered over his “egregious error,” Barbaro asked to review the transcript of the trial.8 Now, 85 years old and recognizing the procedural hoops through which Kagan and his lawyers would have to jump given the lateness of Barbaro’s effort to correct his error and the resulting injustice, his affidavit added this noteworthy final paragraph: “I truly hope that the injustice that I caused will be corrected without delay and that we will not see procedural matters and precedents justify the denial of freedom to ‘Kagan.’”9 Parenthetically, and putting aside the merits of whether Barbaro did, indeed, misread the self-defense testimony in the Kagan case—a matter on which we have no ability whatsoever to, and do not, opine—the District Attorney’s office did raise the very procedural issues to which Barbaro had adverted.10 (We certainly do not quarrel here with that procedural tactic).

Now, Barbaro, a distinguished public servant, is long retired from the bench. Accordingly, the ethical restraints imposed on judges simply do not apply to him11—even though, clearly, given his prior status as judge, an affidavit from him (the procedural problem aside) would certainly carry far more weight than would affidavits from trial jurors who more frequently come forward post-conviction with second thoughts (or second guesses) over their votes to convict. Such juror affidavits, although not treated with disdain, are typically accorded no weight whatsoever as a matter of law, unless, typically, the affidavits assert that extraneous influences (outside the jury room) impacted their votes as jurors. It remains to be seen, however, what the court does with Barbaro’s testimony, which supports Kagan’s pending motion to set aside his conviction.

Mollen and ‘McLaughlin’

But what about when a still-sitting judge who had presided over a case that is no longer before him acts to correct what he perceived to be an injustice? Is there precedent for that? If so, is there something ethically wrong with a judge—for example, a hypothetical Barbaro still sitting on the bench—announcing that he may have erred?

It’s not quite the same thing, but in the 1980s the Presiding Justice of the Appellate Division, Second Department, Milton Mollen, was faced with an arguably similar quandary. In People v. McLaughlin,12 Bobby McLaughlin had been tried and convicted of a 1979 murder in the Marine Park section of Brooklyn, largely based on the testimony of a single eyewitness. On appeal, duty bound as is an appellate court reviewing a conviction to consider only the trial record, Mollen voted with his colleagues to affirm the conviction, and the Court of Appeals denied leave to appeal.13 Thus, the Appellate Division’s role—and, more to the point, Mollen’s role—had been completed, except if a post-conviction motion were to come before the court and could be assigned to other justices.

But, the press wasn’t satisfied with the conviction. The late, legendary muckraker, Jack Newfield, called Mollen and asked that he meet in chambers with Newfield, one of McLaughlin’s lawyers, Richard Emery, a retired detective and, even more curiously, Harold Hohne, the defendant’s stepfather. Mollen agreed (although somewhat surprisingly without inviting a representative of the District Attorney’s office to be present). Persuaded of an injustice in the case, particularly by Hohne (as recently stated by Mollen in an interview with this author), Mollen recused himself and asked then-District Attorney Elizabeth Holtzman to reopen the case, and keep him informed of its progress, which she agreed to do.14

It really couldn’t have been Newfield’s work, that of John Miller, then of NBC, or ABC’s 20/20 program that led to the intensity of the district attorney’s (re)investigation, which finally caused Justice Ann C. Feldman to grant McLaughlin’s motion—aided by the district attorney’s consent—to dismiss and expunge the conviction.15 Frankly, the push from Mollen himself, who effectively no longer had any role whatsoever in the case because of his recusal, surely carried the day.

We will never know how Feldman would have decided the case had the district attorney opposed McLaughlin’s motion, given the “activist” role of Mollen—his recusal notwithstanding. Clearly, his role in the case could not have been the same as a retired justice like Barbaro having second thoughts 14 years after a conviction, particularly when he hasn’t sat on the bench in nine years.

Consider also the case of Jean Harris, who killed Scarsdale Diet Doctor Herman Tarnower. It too doesn’t really address the issue squarely.16 There, Harris’ trial lawyer did not seek a lesser-included offense charge for Harris, which may alone have resulted in her being convicted of murder, and consequently a mandatory sentence of 15 years to life. Presumably bothered by that strategic decision and the sentence he was required to impose, after he stepped down from the bench, Judge Russell Leggett publicly supported Harris’ clemency application to the governor.17 There, again, Leggett was already off the bench.

Is There Ethics Authority?

So, what about judges—still sitting judges—taking action to correct an injustice they perceive and in which they may have had a role? Is it wrong for a judge, particularly a judge with the obvious persuasive power to influence the ultimate result by dint of the position he or she currently holds, to affirmatively act seemingly (call it) ultra vires, such as in the instance of Mollen in the McLaughlin case?

In truth, there is precious little authority on this point. In fact, the Rules of Judicial Conduct don’t seem to deal with this issue at all.18 Still, one wonders how it can be wrong for a judge with a unique ability to perceive an injustice in which he participated to try to cure that injustice.

Now, in Mollen’s case, seemingly, if he indeed had concerns about the case when it was argued before the court, he could have influenced the language of the court’s decision, and asked the district attorney to reexamine the investigation and trial. Presumably, there would have been nothing questionable about that course of action. Things, though, don’t always happen in real time—injustices are often uncovered years after they occur. That said, don’t judges—shouldn’t judges and don’t we want them to—have a duty, even years later, to ask for a second look if they believe there was an injustice?

The Innocence Project, in particular, has shown how many false convictions have occurred and are only “cured” many years later.19 That it took so long for Barbaro’s rumination to give rise to action is just a clear example of this phenomenon.

All this said, it isn’t completely clear that a sitting judge can ethically do what seems so inescapably imperative. While not directly on point, New York’s Advisory Committee on Judicial Ethics, in Opinion 98-7720 issued in 1998, raised issues that might apply here. There, a judge inquired of the committee if it was improper for him/her to write to the Appellate Division asking it to reconsider its decision in which it reversed a ruling made by that judge.

The committee opined that sending such a letter would be “ethically improper” for three separate reasons, each of which the opinion says, standing alone, would be sufficient to make the proposed letter impermissible. First, because “a judge should not adopt the role of an advocate,” seeking reconsideration was the role of the aggrieved person, not the judge. And, sending the letter would erode “public confidence in the integrity and impartiality of the judiciary.” Second, because sending the letter would constitute an ex parte communication concerning a pending or impending matter. Third, because the letter could be regarded as public comment about a pending proceeding.

Frankly, the opinion doesn’t make complete sense in all that it states. It’s hard to understand why a judge writing such a letter, effectively saying “You guys may have gotten it wrong,” erodes confidence in the system. Nor would it raise an ex parte concern, particularly if the judge, as one would expect, copies both sides in the case in writing his letter. However, to the extent the opinion raises some question about whether the judge becomes an “advocate,” that might be something to bear in mind.

Conclusion

All this said, we probably don’t want judges who, in retrospect, believe they may have been the instrumentality of an injustice, to be required to sit on their hands and remain mute about a defendant rotting in jail—at least until, as in Barbaro’s case, they are no longer on the bench when judicial ethics rules no longer apply. The sacred role of “neutral,” that Opinion 98-77 seeks to sanctify, is important—but it shouldn’t trump reality when it appears that an injustice may be continuing. It seems that Barbaro, like Mollen before him, took the bull by the horns to, indeed, promote justice and respect for the judiciary—however hard it was for them to do that in the way they did (basically acknowledging that they, given the case or statutory law that canonizes finality, may have contributed to an injustice.)

We absolutely don’t want judges to simply throw out a rule book and procedural authority that disdains a “second bite.” Nonetheless, the enormity of the injustices discovered in recent years should encourage judges to find creative ways to open the jailhouse doors when they’ve been slammed shut by clear mistake. When they do, as may be the case here, and as Barbaro said he hoped, the courts (and prosecutors) shouldn’t simply employ the legal—or is it non-legal?—doctrine of “sorry, too late,” and rubber stamp the continuation of an injustice.

Joel Cohen, a former prosecutor, is of counsel at Stroock & Stroock & Lavan. He teaches professional responsibility at Fordham Law School. Elizabeth Carter, an associate at Stroock, assisted in the preparation of this article.

Endnotes:

1. See, generally, Richard A. Posner, “Reflections on Judging” (Harvard Univ. Press 2013).

2. See, Joel Cohen, “Post-Trial Juror Interviews: What are the Restrictions on Counsel?” NYLJ Aug. 16, 2004, p. 7, col. 1.

3. See, e.g., Sara Rimer, “Debate Revives as Jean Harris Seeks Clemency,” N.Y. Times, Dec. 22, 1986.

4. See People v. Maragh, 94 N.Y.2d 569, 573 (2000); People v. De Lucia, 15 N.Y.2d 294, 296 (1965); McDonald v. Pless, 238 U.S. 264, 265-68 (1915); Mattox v. U.S., 146 U.S. 140, 148 (1892).

5. See James C. McKinley Jr., “Ex-Brooklyn Judge Seeks Reversal of His Verdict in 1999 Murder Case,” N.Y. Times, Dec. 12, 2013; Memorandum of Law of Defendant, at Ex. C, Affidavit of Frank J. Barbaro, People v. Kagan, Ind. Nos. 1777/94, 11177/98 (Sup.Ct., Kings Co., filed Aug. 24, 2012) (the “Barbaro Affidavit”).

6. Barbaro Affidavit, at ¶5.

7. Id. at ¶5-6; but see Opinion and Order, Oct. 12, 1999, Sup. Ct., Kings Co., Ind. No. 11177/98, Barbaro, J.

8. Id. at ¶10.

9. Id. at ¶11.

10. Affirmation in Opposition, Assistant District Attorney Amy Appelbaum; People v. Carter, 63 N.Y.2d 530, 538 (1984) (“But while a Trial Judge may correct a formal error in a verdict, such as an inaccurate statement of the verdict intended on a particular count or an incorrect recording of the verdict in the minute book …, the power does not extend to the alteration of a guilty verdict to one of not guilty based on a reassessment of the facts, for that is a correction of substance, not a mere ministerial act…” [citations omitted].)

11. See N.Y. Comp. Codes R. & Regs Title 22 §100.

12. People v. McLaughlin, 104 A.D.2d 829, 480 N.Y.S.2d 151 (2d Dept. 1984), leave to appeal denied, 64 N.Y.2d 783 (1985).

13. Id.

14. See Milton Mollen, “Wrongly Convicted Person Wins Freedom in Courts,” 197 NYLJ 31 (1987).

15. Id.

16. People v. Harris, 84 A.D.2d 63, 445 N.Y.S.2d 520 (2d Dept. 1981) aff’d, 57 N.Y.2d 335 (1982).

17. Sara Rimer, “Debate Revives as Jean Harris Seeks Clemency,” N.Y. Times, Dec. 22, 1986.

18. N.Y. Comp. Codes R. & Regs. tit. 22, §100 et seq.

19. Cite www.innocenceproject.org; Joseph Goldstein, “Grant Will Aid Effort to Find Old DNA Evidence,” N.Y. Times, Sept. 15, 2012.

20. NY Jud. Adv. Op. 98-77, 1998 WL 1674567 (N.Y. Adv. Comm. Jud. Eth.).