The Association of the Bar of the City of New York

Joint Report of the Committee on Criminal Advocacy and the Committee on the Criminal Courts on the Assignment of Judges in the Criminal Term of Supreme Court in New York County

INTRODUCTION

The Association believes that the appearance of propriety in the selection of judges is of major public importance and can best be served by the application of a rule requiring the random selection of judges in criminal cases. In New York County there has been a long standing policy {the Challenged Policy"} that a judge assigned to supervise a special grand jury will be assigned to preside over any indictments filed by that grand jury. The Association believes that this deviation from the rule of random selection that is embodied in the Uniform Rules is contrary to law and contravenes basic precepts that govern the fair and impartial administration of criminal justice. Part of the "Challenged Policy" has been altered by the Administrative Judge, to the extent that the judge who supervises the grand jury is no longer automatically assigned the indictments returned by the grand jury. Unfortunately the assignment of judges to these cases, now performed by the Administrative Judge, involves a system which is not of record and not subject to public scrutiny.

The Appellate Division, 1st Department, has ruled that assignment of judges is an administrative matter and litigants have no judicially enforceable right to the random assignment of judges . The Association believes that the method of assignment of the judges in criminal cases must be perceived by attorneys, defendants and the public as fair and free of influence by any litigant. This goal can be accomplished only if the assignment of judges is random and public.

BACKGROUND

Since the adoption of the Uniform Rules for Courts Exercising Criminal Jurisdiction more than a decade ago, the principle that judges in criminal cases should be selected randomly has been firmly embedded in the criminal justice system. Rule 200.11 of the Uniform Rules governs judicial assignments of criminal cases in superior courts. Rule 200.11(c) provides that subject to certain carefully defined exceptions described below, each criminal action "shall be assigned to a judge by the clerk of the court in which it is pending pursuant to a method of random selection authorized by the Chief Administrator." 22 NYCRR § 200.11(c).

The limited exceptions to Rule 200.11(c) are: (1) the initial assignment of all cases to a designated arraignment- conference part and delaying random selection until it appears that a plea of guilty will not be quickly entered, 22 NYCRR § 200.11(b); (2) if a judge becomes too busy to handle additional cases, the Chief Administrator may suspend new assignments to that judge until the judge is able to handle additional cases, 22 NYCRR § 200.11(d)(1); (3) the Chief Administrator may authorize that special reserve trial judges "be assigned matters for trial in exceptional circumstances when the needs of the courts require such assignment," 22 NYCRR § 200.11(d)(2); (4) in the event the assigned judge is not available, matters requiring immediate disposition may be assigned to a judge designated to hear such matters, 22 NYCRR § 200.11(d)(3); and (5) the Chief Administrator may authorize the transfer of cases from one judge to another "in accordance with the needs of the court," 22 NYCRR § 200.11(d)(4). The Uniform Rules thus empower the Chief Administrator with flexibility to deviate from the general rule of random selection, but only when required by specifically defined administrative needs of the court system. In all other cases, random selection is required. The 1986 IAS Plan, effective January 6, 1986, implemented the "method of random selection" required by 22 NYCRR § 200.11(c).

The 1986 IAS Plan required that after arraignment (unless it appeared that a guilty plea would likely be entered within a short period of time), the arraignment judge is to assign the case to a trial judge "selected by means of the blind draw process prescribed [by the] plan." The exceptions to this blind draw process again were limited and defined: (1) narcotics indictments were assigned to a special narcotics part ( 13); (2) multiple indictments of a single defendant were to be referred to the same randomly selected judge ( 16); (3) the administrative judge was authorized to "adjust the caseload inventory of an individual judge to correct an inequitable case mix or to resolve facilities issues" ( 20). The 1986 IAS Plan required "complex" cases to be assigned outside of the regular random assignment system and created a separate random assignment system for these cases ( 14).

Neither the Uniform Rules nor the 1986 IAS Plan recognizes the "Challenged Policy" followed in New York County that excludes indictments filed by special grand juries from the random method of selecting judges that the Rules and the Plan prescribe.

The policy exempting from random selection indictments filed by special grand juries that were subject to judicial supervision during the grand jury's investigation is described in a letter dated May 2, 1997 from the Honorable Juanita Bing Newton, Supreme Court , Adminstrative Judge of the Criminal Term, New York County, as follows:

[W]hether the judge assigned to supervise the special Grand Jury should preside over any indictments filed by that Grand Jury, is a policy decision that has historically been answered in the affirmative. I recognize that the issue has been the subject of considerable debate. Nonetheless, this long standing policy of the court should not be disturbed on an ad hoc basis absent compelling reason.

The origin of this "Challenged Policy" is obscure. Apparently, it is not grounded in any statute or written judicial rule or regulation, and is in contrary to the policy set out by the Honorable Juanita Bing Newton in her memorandum dated October 2, 1995. In that memorandum, Justice Newton correctly observed that the policy has been the subject of considerable debate, and the Association has been part of that exchange of views. The current debate appears to have begun when Gerald B. Lefcourt, Esq. sent a letter dated July 18, 1995 to the Honorable Judith S. Kaye, Chief Judge, Court of Appeals, complaining about the role of the District Attorney of New York County in the assignment of judges in certain kinds of major criminal cases. The issues raised by Mr. Lefcourt came to the attention of Justice Newton, who responded by issuing a memorandum dated October 2, 1995 which, among other things, required that any indictment returned by a Special Grand Jury convened after September 1, 1995 would, after arraignment, "be assigned to a judge by the administrative judge." Although the assignment of the judge was not subject to random selection, it appeared that such indictments would not be automatically assigned to the judge who presided over the Special Grand Jury.

In November 1995, representatives of the Association and the New York Criminal Bar Association met with Justice Newton concerning various issues relating to the division of work among Manhattan Supreme Court judges, including the issue of the assignment of judges who preside over indictments returned by Special Grand Juries. Further meetings were requested by letter dated February 12, 1996 of the Chair of the Committee on Criminal Advocacy to continue the dialogue, but none were held.

The standards governing the assignment of judges in criminal cases in New York City are defined by the Uniform Rules and the 1986 IAS Plan. Neither the Rules nor the Plan authorize any deviation from the requirement of random selection in prosecutions arising from indictments filed by Special Grand Juries that were subject to judicial supervision during the grand jury investigation. The long standing policy of automatically assigning such cases to the judge who supervised the grand jury is not rooted in any statute or rule. The policy reflects an unauthorized exercise of judicial power that is contrary to the fair and impartial administration of the criminal justice system because it promotes a secret selection method which undermines public confidence in the case assignment process.

Justice Newton's letter dated May 2, 1997 describing the automatic assignment policy does not offer any justification to support it except historical practice. The District Attorney has attempted to justify the policy on the theory that there are certain situations in which special assignments outside of the random selection process are necessary for purposes of judicial economy and efficiency, and the premise that certain complex cases require more specialized expertise and experience than can be guaranteed through random selection.

This rationale does not withstand scrutiny. To be sure, there are certain complex criminal cases that may require a high level of experience and expertise in terms of judicial management. Recognition of this fact is reflected in the 1986 IAS Plan, which required that complex cases be assigned outside the regular random assignment system and created a separate random assignment system for these cases. There are numerous judges who are able and willing to preside over complex criminal cases, and they ought to be given the opportunity to handle those cases through a random assignment system that avoids the appearance of undue influence by any single judge or litigant.

There is no merit to the claim that judicial economy and efficiency are properly served by assigning a complex case for trial to the judge who supervised the grand jury investigation that produced the indictment. A judge who approves the issuance of a search or eavesdropping warrant or who rules on the propriety of a grand jury subpoena is not necessarily capable of effectively managing a lengthy, multi-defendant trial involving complex issues of law and fact that may be entirely unrelated to the warrant issued, the electronic surveillance supervised or the subpoena litigation resolved. The experience, skill, acumen, patience and wisdom that a judge needs to preside over an indictment in a high profile, complex criminal prosecution does not necessarily depend on some limited familiarity with the preceding grand jury investigation. The random assignment of federal judges in complex multi-defendant criminal prosecutions in the Southern and Eastern Districts of New York has not adversely affected the ability of those courts to manage such cases effectively. Random selection of judges in comparable criminal cases in New York County, under the method prescribed in the 1986 IAS Plan or under some other fair method, cannot be expected to yield contrary results.

RECOMMENDATIONS

The Association of the Bar believes that the appearance of propriety in the administration of justice is an important issue. The Association has been in the forefront of organized opposition to unfair attacks on the Judiciary by politicians and the tabloid press. The Association's position is that the public, all litigants and the members of the Judiciary themselves should know that the selection of judges to try particular cases is purely random, so it can never appear that one litigant has an advantage over other litigants. There should never be a basis for a defendant, lawyer, or the public to suggest that the District Attorney of New York County had any influence the assignment of a particular judge to any given matter. The only way that this can be done is by public, random assignment of judges to a particular case.

Favoritism should not influence the selection of judges for trials. More importantly, no one should be able to suggest that favoritism or bias played a role in the assignment of a case to a particular judge. This is why the purely random selection of judges is necessary. The Association recognizes that all judges do not want to or may not be able to handle complex or high profile cases. A wheel for these cases should be established, with appropriate standards to determine which judges qualify for participation in the wheel. The selections from that wheel should be public and random.

Random and public selection should also apply to the selection of judges in routine matters. Another wheel should be established for this purpose. It should be public and random, as it is in Federal Court. May, 1998

COMMITTEE ON CRIMINAL ADVOCACY
Philip R. Edelbaum, Esq. Chair
Jonathon D. Lupkin, Esq. Secretary

Peter A. Adelman, Esq.
Charles D. Adler, Esq.
Roger Bennet Adler, Esq.
Hon. Herbert J. Adlerberg*
Ellyn Bank, Esq.
Vivian Berger, Esq.
Roger J. Bernstein, Esq.
A. J. Bosco, Esq.
Laura A. Brevetti, Esq.
Jean M. Carsey, Esq.*
Mario Castellitto, Esq.
Nicholas M. DeFeis, Esq.
Nina S. Epstein, Esq.
Lynn W. L. Fahey, Esq.
Lawrence S. Feld, Esq.
Jonathan J. Silberman, Esq.
Hon. Charles H. Solomon*
Alan S. Futerfas, Esq.
Mark P. Goodman, Esq.
Nicholas A. Gravante, Esq.
Hillary L. Hochman, Esq.
Hon. Nicholas J. Iacovetta*
Rae Downes Koshetz, Esq.
Roseann B. Mackehnie, Esq.
Amy E. Millard, Esq.
Avraham C. Moskowitz, Esq.
Leonard E. Noisette, Esq.
Hon. Michael J. Obus
Adam D. Perlmutter, Esq.
John L. Pollok, Esq.
Roland G. Riopelle, Esq.
Stephen L. Saxl, Esq.
Jeffrey B. Sklaroff, Esq.
Roger L. Stavis, Esq.

*All members who are Judges and Jean Carsey abstained from the vote.

COMMITTEE ON CRIMINAL COURTS

Anthony J. Ferrara, Esq., Chair
Eileen C. Braman, Esq., Secretary

Robert B. Anesi, Esq.
Steven Antonoff, Esq.
Hon. Peter J. Bernitez*
Steven Brounstein, Esq.
Mark S. Cohen, Esq.
Jospeh R. DeMatteo, Esq.
Mary M. Dianiska, Esq.
Hon. Paul G. Feinman*
Alan S. Feldstein, Esq.
Elizabeth Fox, Esq.
Joseph R. Gribko, Esq.
Bruce G. Hart, Esq.
Eric W. Hirsch, Esq.**
Elizabeth M. Johnson, Esq.
Steven R. Kartagener, Esq.
Deborah Kaplan, Esq.*
Lauren Pam Katz, Esq.
Gerald M. LaBush, Esq.
Paul H. Levinson, Esq.
Jennifer Liddy, Esq.
William Loeb, Esq.
Raymond Loving, Esq.
John Michael Lynch, Esq.
Gaving W. Miles, Esq.
Hon. Patricia M. Nunez**
Valerie Raine, Esq.
Jonathan Rosenberg, Esq.
Harold J. Ruvoldt, Jr., Esq.
Fred L. Sosinsky, Esq.
Hon. Ruth L. Sussman*
Lynne E. Troy, Esq.
Mary A. Wertheim. Esq.
Steven Zalewski, Esq.

* Abstained **Dissented