The separation of powers is like free speech and freedom of religion, a cornerstone of the American democratic tradition at the local, state and federal levels. The first three articles of the U.S. Constitution give the executive, legislative and judicial branches of government explicit but limited powers to ensure that one body can't out-muscle the others. This model is replicated in the New York State Constitution. But since Gov. George Pataki's election in 1994, the hackles of the state's judiciary community and its civil liberties establishment repeatedly have been raised, as the governor has made no bones about critiquing the judicial branch—particularly in the area of criminal justice.
From his 1996 legislative initiative, the Police and Public Protection Act, which proposed new search and seizure guidelines to the Legislature, to his outspoken criticism of the Court of Appeals to his removal of Bronx District Attorney Robert Johnson from the highly publicized Gillespie murder case, Pataki has embarked on a campaign to put the gubernatorial stamp on the judiciary. Fueling much of the governor's actions has been the voter-mandated drive to implement the 1995 death penalty statute, passed by the Legislature and signed into law by Pataki after a dozen years of Mario Cuomo's vetoes. That effort has led to several instances in which the governor has aired his "verdict" on murder cases and a number of occasions when he has taken to broad-siding the entire judiciary for "coddling criminals" based on a smattering of Court of Appeals rulings that remanded verdicts back to lower courts based on technicalities.
A telling tension between Pataki andChief Judge Judith Kaye of the New York State Court of Appeals was evident last May on Law Day in Albany, when Pataki took the opportunity to wax philosophical on the reach and propriety of his critique of the judiciary. In an exchange with Kaye, the governor opined, "Does criticism of judicial rulings constitute an attack on judicial independence. . .? The answer, clearly, is no."
Kaye's rejoinder to Pataki was not so much directed at his right to critique the bench—she in fact agreed that he had the privilege—but instead broadly hinted at the propriety of the shrill and politically motivated baggage that, in her view, often accompanies such criticism. But the stakes go much deeper—straight to the core of the separation of powers maxim. "The larger issue is very important," says Norman Siegel, executive director of the New York Civil Liberties Union (NYCLU), which filed suit on behalf of Bronx voters in the Gillespie incident, "and that is the independence of the judiciary, and more specifically the Court of Appeals, because Gov. Pataki found fault on a number of occasions with the Court of Appeals and attempted to demonize it and undermine its authority. The concept of limited government is an essential characteristic of democracy and also our constitution."
On Law Day, Pataki took the high ground, quoting noted Federalist and New Yorker Alexander Hamilton, who believed strongly in a powerful executive and judicial branch, especially the executive. But when the power of the executive is such that it begins yanking judges from cases, is that power being abused?
According to Siegel, the answer is clearly yes. Pataki's behavior, he claims, is unlike that of any of his predecessors dating back to the 1960s. "In modern times, you have governors Cuomo, Carey, Malcolm Wilson and Nelson Rockefeller, so you've generally had either moderate or liberal Democrats or moderate Republicans. It appears, however, that the political climate has changed, and the approach on issues of this nature has hardened.
"In the Police and Public Protection Act, [Pataki] was trying to get ... the Legislature" to adopt new search and seizure guidelines for the court, he says. But "the process for such an initiation is dictated by law. What you do is amend the state constitution. [Pataki] was, in our opinion, trying to bash the Court of Appeals. As a lawyer, separate from my duties in the NYCLU, every time I go before Chief Judge Judith Kaye's court, I respect them, even if you lose. There is an attempt by the Pataki administration to undermine that, and that theme in itself is probably the most troubling thing coming out of his administration."
The chief judge says, "This is a new age. The level of criticism we have experienced is greater and not just from the governor." In the past, comments from governors and other high officials weren't directed at specific cases, she says.
"There was a deep wound that I bore when stories started appearing last year about the Court of Appeals about 'junk justice,'" Kaye says. She adds with a laugh, "but they've scabbed over, because it [has] been fairly quiet. I don't consider this a personal battle with the governor. "We're not locked in combat. This has as much to do with what the press, particularly the tabloid press, has picked up on as anything the governor has said."
Martin Adelman, past chairman of the criminal justice section of the New York Bar Association, sees a greater danger than Kaye, at least publicly, is willing to admit. "I haven't encountered anything like this in 30 years of practice," he says. The problem with Attorney General Dennis Vacco and Pataki is that "they are result-oriented, not process-oriented, and the law is about process. We didn't elect this guy [Pataki] emperor."
On March 14, 1995, Angel Diaz, Jesus Mendez and Ricardo Morales of the Bronx allegedly went on a crime spree in their hometown that would come to have a crucial impact on the application of the death penalty statute in New York and would draw the battle lines between the duties and rights of local prosecutors, the Legislature and the governor.
The three men had been released from prison in 1994 after serving sentences stemming from armed robbery and robbery-assault. On the night in question, allegedly with 9 mm pistols in hand, they reportedly stole a car, robbed a pedestrian and wound up in a shoot-out in the Bronx's Grand Concourse. When the melee ended, Diaz, a police officer, and three bystanders were wounded. Officer Kevin Gillespie was dead.
Bronx District Attorney Robert Johnson, a tremendously popular black prosecutor elected by an overwhelming majority in 1994—largely because of his outspoken opposition to the death penalty—never got the opportunity to make a determination of the sanction he would seek, despite the death penalty statute's call for of a 120-day investigatory period. Almost immediately, Republican New York City Mayor Rudolph Giuliani and Pataki, arguing that the wanton brutality of the shooting itself warranted a first-degree murder charge, called for the death penalty for Diaz, who was charged with shooting Gillespie. Pataki wrote Johnson to ask if there was any situation in which the district attorney could envision himself seeking the death penalty.
Johnson had made no secret of his opposition to the death penalty when it was enacted the previous year but claimed he wouldn't exclude categorically considering the sanction under the proper circumstances. "The door is slightly ajar," he said when the death penalty statute was enacted. "It is my present intention not to utilize the death penalty provisions in the statute."
Along with the prosecutorial discretion the statute outlines for seeking the death penalty, it also offered—for the first time—the option of life without parole.
Responding to Pataki's ultimatum that he declare his intentions by the day following the date of his letter, Johnson tersely informed the governor that he was unwilling to make any determination at that point because Diaz hadn't been indicted yet. Besides, he wrote, the discretion to seek any sanction was wholly within the local prosecutor's domain.
At that point, Pataki made the highly unusual move even he admitted as much—of removing Johnson from the case based on his conviction that Johnson would never seek the death penalty. The governor appointed Vacco, who supports the death penalty, to take his place.
arguing that Pataki had overstepped his boundaries and had violated the letter of the death penalty statute. "There is also the uncomfortable undercurrent that Johnson is a black [district attorney] and the only one in the state," Adelman says. "Manhattan [District Attorney] Robert Morgenthau has had several death penalty cases and has elected not to pursue a firstdegree charge in any of these cases. You don't hear any noise from Pataki about Morgenthau."
The overheated rhetoric of "racism" from one side and Pataki's persistent and occasionally denigrating criticism of the state judiciary's liberal, "pro-criminal" stance further polarized the various players—with the Urban League and the American Civil Liberties Union lining up on one side, and the Police Benevolent Association and Pataki on the other—and underscored the issues involved: the limits of-7he governor's authority, the limits of prosecutorial discretion, and the question of who represents voters in the Bronx. Did the governor have the right or duty to step in and remove a duly elected prosecutor from a case even when the criteria for such action was not judicial misconduct, criminality, incompetence or conflict of interest but differences in policy and, indeed, in this case, a different moral outlook when it comes to the death penalty? Does a statutory option mean that a prosecutor must at least consider it when the facts of a case dictate?
The state Supreme Court would not rule on the spat, however, and Pataki had a de facto round-one victory. Vacco now is angling for a first-degree conviction against Diaz, but the trial has yet to begin as Johnson has taken his case to the Appellate Division, though arguments have not been heard.
NYCLU also filed suit on behalf of five Bronx residents in late April arguing to have Johnson reinstated based on the fact that the governor's actions were outside the purview of the new death penalty law. As with Johnson's parallel lawsuit, the lower court said it wasn't justiciable, and NYCLU has gone to the Appellate Division, which will hear arguments this month. Regardless of the outcome, it almost definitely will wind up in the Court of Appeals. "In our opinion," says Siegel, "the case raises profoundly fundamental questions about the nature of democracy in New York and crucial constitutional and legal questions about the authority of the governor to remove a duly elected district attorney.
"The separation of powers has a subsidiary proposition," Siegel adds. "The governor cannot act beyond legislative policy. Pataki argued that Johnson failed to comply with the new death penalty law by refusing to consider it, yet the murder-one law doesn't require a [district attorney] to consider seeking it. He went beyond what the Legislature provided, and as far as I'm concerned, he superseded his authority."
Pataki had argued that Johnson's refusal to "faithfully execute" the statute gave him the right to remove the district attorney. "It's not the governor's intention to micromanage the district attorney[s] around the state" says Pataki spokesman Patrick McCarthy. "District Attorney Johnson precluded himself from the option to utilize the death penalty, and the governor was assuring that the statute would be applied throughout the state."
The governor has an obligation to assign special prosecutors in these kinds of cases, McCarthy adds, "and he was well within his rights to do so in this case. The Governor really went through the proper channels in making sure this was done properly because he was sensitive to the issue of separation of powers, and he made sure he was taking reasonable, responsible and effective measure throughout the entire affair."
At the time of the Gillespie murder, Pataki and Johnson already had locked horns over the death penalty in the case of Michael Vernon, a severely developmentally disabled young man charged with killing eight customers in a Bronx shoe store in late 1995 because a pair of special-order sneakers hadn't arrived yet. Johnson chose not to seek first-degree charges in that case—not because of his opposition to the statute, but because of Vernon's disability. The governor, realizing that calling for the death of a mentally ill, black 22-year-old wasn't going to win him any friends in the Bronx, ultimately said he accepted Johnson's decision "with serious reservations."
Executive branch "meddling" in the affairs of the judiciary or other executive branch officials is by no means a unique phenomenon. One need only to look to the Oklahoma City bombing last year that led President Bill Clinton and Attorney General Janet Reno to pounce on the death penalty option for the perpetrators before any indictments had been handed down. But there are very few cases in New York involving overstepping the Legislature's statutory allowances, according to Siegel. In preparing his appeal, he cites as a precedent a Carey-era executive order that overstepped a law outlining properly administered conflict of interest safeguards for executive branch authorities. Carey issued such an executive order forcing employees to submit detailed financial records. "The court said there were limits, and that the governor couldn't create mandates not already included in the statute," Siegel says.
Despite the rarity of removing prosecutors and thus calling into question the separation of powers maxim, Pataki may have enough support in other counties to ensure a death penalty conviction in the not-too-distant future. The New York Law Journal recently reported that Otsego County District Attorney William Gibbons was taken off a murder-one case by Pataki because he had hired a former public defender to be an assistant district attorney on the case. Vacco now is handling the case, which involves a parental double homicide.
Gibbons, who supports the death penalty, says however that the attorney general was brought in at our request."
Supportive district attorney's in upstate Republican strongholds notwithstanding, Siegel nonetheless is concerned that in the Gillespie matter, "If Pataki wins in court. what is to stop him down the road from removing anyone?"
Further emboldening the GOP criminal justice juggernaut in New York was the Howard Baer brouhaha. In that episode, which swirled through the New York media whirlpool around the same time as the Gillespie murder, Baer, a Clinton appointee and a generally well-regarded liberal, ruled that police in the Washington Heights section of Manhattan conducted an illegal search when they assumed two men who allegedly walked up to a car with out-of-state license plates, shoved duffel bags into the trunk and then ran away when detectives approached, were engaged in drug trafficking. Despite the fact that detectives found the bags filled with drugs and that a woman driver confessed to being a drug runner for years, Baer threw the evidence and confession out, infuriating Giuliani, who began to beat the drum for Baer s removal from the bench.
Not surprisingly, the issue instantly was politicized as conservative firebrands stoked the fires about Clinton's liberal bias. One of Baer's more controversial rationales for throwing the case out particularly incensed the mayor: He claimed that citizens of Washington Heights were rightfully fearful of police brutality and extortion given that the neighborhood's precinct had been the site of some of the worst cases of police corruption since the 1970s. Baer eventually caved to the pressure and consented to a retrial, allowing the evidence and confession to be admitted.
Pataki was mum on the Baer flap while it raged, though he obviously was irked by it. He held his fire until April 1, when he released the following statement: "Baer's original ruling was at war with common sense and was an insult to New York City police officers."
Of a more recent vintage was the Guidice murder. In that case, Giuliani called for the death penalty for the killer of officer Vincent Guidice. The officer responded to a domestic violence call and, when he arrived on the scene, he severely gashed his leg on a piece of broken mirror glass. The wound proved fatal.
But under the capital offense statute as it exists, neither the evidence nor the circumstances were enough to warrant a first-degree murder charge, though the alleged perpetrator had in fact broken the mirror while fighting off the police. Though it was another case in the Bronx, this time the governor and mayor found an ally in Johnson, who had argued strongly against the court's decision to set bail at a relatively low $10,000 based on the fact that the man in custody, Anthony Rivers, had extensive prior convictions—including a half-dozen bench warrants issued when he failed to appear in court to answer other charges. In early June, Pataki criticized the low bail, arguing that "confidence in our criminal justice system is diminished by decisions that flout common sense and good judgment." He praised Johnson for arguing essentially the same thing in court. Says Pataki spokesman McCarthy, "That underlines the fact that the governor takes this on a case-by-case basis," and not out of any particular animus toward Johnson or antedate penalty prosecutors.
The governor also reiterated his desire that legislators pass a bill he sent them in February that would for the first time in New York's history give prosecutors the same right defendants long have held to appeal "unduly low bail and sentencing determinations" set forth by judges. The federal government makes that allowance for prosecutors, but the number of cases in which there is an egregiously "pro-criminal bail" or sentence in New York is very low. "If you could find a few bad cases, that shouldn't be cause for turning over the bail and sentencing system in New York," Siegel says. "Again this is an attempt to intimidate and undermine the judiciary, in this case, the trial courts."
The introduction of the bail bill can be traced directly to the now infamous Judge Lorin Duckman flap. In that case, the criminal court judge had set a relatively low bail for defendant Benito Oliver, who had been arrested for beating his girlfriend in Queens. Oliver, who had a history of domestic violence as well as a rape conviction, was slapped with an order of protection ruling upon his release. He then allegedly killed his girlfriend.
Giuliani immediately began calling to have Duckman ousted from the bench. particularly because in another case the judge had sentenced Maximo Pena of Brooklyn to serve no jail time after being convicted of beating his ex-girlfriend. Pena was released but soon thereafter was arrested for allegedly dragging her down two flights of stairs and punching her in the face. After it also was exposed that the judge s record contained some questionable statements about domestic violence, Duckman was transferred to the civil division.
In response, Pataki called for the prosecutorial right to appeal low bail and sentencing determinations and also argued for the stiffening of penalties for those who violate orders of protection, making them felonies instead of misdemeanors. The Legislature granted his wish on the latter this August. The former, however, is stuck in the Assembly Codes Committee, whose chairman, Democratic Assemblyman Joseph Lentol of Brooklyn reiterated through spokeswoman Sara Duncan his concern that the bill was a "radical" departure from the state's bail guidelines and thus needs further study before he will report it out of his committee.
The cumulative effect of the governor's reaching into the judicial arena led the New York State Bar Association s Special Committee on Judicial Independence—formed in April to "reaffirm the preservation of an independent judiciary"—to detail what is an appropriate critique of the judiciary and what crosses the line into onerous meddling.
The committee, which included several prominent Republicans and Democrats, reported, "It is not fair to make personal attacks against a judge because of disagreement with his or her rulings in particular cases. It is highly improper for public officials who have the power of judicial appointment to demand resignation or removal of a judge based upon his or her rulings."
While not speaking directly to any particular case that has or may come before the court, Chief Judge Kaye notes that "there are rules that say lawyers are supposed to support the justice system and educate the public in a positive way. You're certainly not supposed to trash it as a lawyer."
Pataki is an attorney, having earned his degree from Columbia Law School.
"Is there any modern applicability to these rules [lawyers are supposed to support]?" Kaye asks. "That is a tough, tough question because we are in a media age, with sound bites and cynicism, and an age where people really think they know the justice system. I've bemoaned for years and years that the Court of Appeals has been ignored, and wished people would better understand what the court does, and come see what we do. [The understanding] came, but not in the way I had hoped, an informed, temperate analysis, with the emphasis on informed."
The question raised by civil libertarians and those concerned with the separation of powers is simple: What is the net effect of an activist executive branch inserting itself directly into the criminal court system? At worst, those critics argue, in addition to casting a pall over the entire judicial process by politicizing crimes for the benefit of elected officials, it gives defendants short shrift when itcomes to due process by making them pawns in the chess game of public opinion. "There is absolutely no good way to put a positive sound bite on a reversal of a murder case," Kaye says.
Critics say it also gives too much power to the executive branch—which is unfettered by the ethical constraints that prohibit judges from commenting on a case-by-case basis. "If we begin answering back," says Kaye, "if we begin a campaign of press conferences, etc., how can we sit in judgment?"
But if holding judges' feet to the fire makes the criminal justice system more responsible and responsive to the concerns of the electorate, what then is the crime? "The governor's primary responsibility is safeguarding and protecting the rights of individuals around the state," says McCarthy. New York "for too long has protected the rights of criminals more than the rights of victims."
Tom Gogola is a free-lance writer based in Long Beach.