City Goes Judge Shopping


There was supposed to have been a day of reckoning in Manhattan Supreme Court this week for city officials who handled the detention of hundreds of people arrested during the Republican National Convention. The judge who found the city in contempt of court for failing to heed his order to promptly release those held long past the normal 24-hour period had scheduled a hearing on the matter for September 27.

But that hearing was called off after the city won a stay from an appeals court that agreed to hold its own hearing on November 23 to consider whether the contempt action was warranted. The two-month delay is likely to dull both the recollections and the anger of those detained, some of whom were held over 60 hours before being charged with violations that are normally quickly disposed of by police.

During marathon court sessions as detainees languished in jail, defense lawyers argued that the city was in massive violation of the state legal standard that those arrested should be held no longer than 24 hours before being arraigned, except in extraordinary circumstances. As Legal Aid Society lawyer Anthony Elitcher said in court on the evening of September 1, police were “punishing people for a longer period of time than the court would ever impose”—in effect making arrestees “do their time up front.”

As the delays continued into September 2, the day that President Bush gave his nomination acceptance speech, attorneys from the National Lawyers Guild gave a darker spin to the holdup, reporting to the court that family members of people arrested had been told by cops that defendants wouldn’t be released until the president was gone. “My clients will not be going home until Bush leaves New York City, and I don’t get it,” said Guild lawyer Daniel Alterman as the hours grew longer.

Given those political tensions, the bigger victory for the Bloomberg administration is that the volatile issue has been shifted out of the courtroom of acting Supreme Court justice John Cataldo, the exasperated judge who originally cited city officials for contempt. Instead, it is going onto the docket of the First Department of the Appellate Division, an increasingly conservative appeals court that has been packed with Republicans brought in from outside the district by Governor Pataki.

The bottom legal line is supposed to be that a judge’s orders, right or wrong, are to be obeyed. But city corporation counsel Michael Cardozo has argued in court papers that Cataldo’s decision to issue a rare writ of habeas corpus to release the arrestees was “fundamentally unfair” in the first place because the city wasn’t allowed to present witnesses as to why it was taking so long to get protesters and others swept up in the mass arrests out of jail. If the appeals panel agrees, the contempt issue will become moot, and Mayor Bloomberg and Police Commissioner Ray Kelly, who have jointly declared their handling of the convention protests a major success, will be spared a political black eye.

They have good reason to be optimistic.

Although the First Department covers the overwhelmingly Democratic electorate of Manhattan and the Bronx, Pataki, who gets to pick all of the state’s appeals court judges, has placed five Republicans from upstate and Long Island on the 15-member panel.

Two of those judges were appointed this May, and came with the kind of ideological bent the governor was apparently seeking. One was John W. Sweeny Jr., a judge from Putnam County whose previous claim to judicial fame was a 1993 ruling against the first lesbian couple seeking to adopt a child whom one of them had given birth to by artificial insemination. Sweeny ruled that the couple couldn’t adopt because they weren’t married (he was later overturned by the state’s Court of Appeals).

The other is James M. Catterson, the son of the former longtime Suffolk County district attorney. In 1994–95, while serving as an aide to the Suffolk County executive, the younger Catterson was at the center of a major local scandal when he was accused of trying to help steer an $18 million auto-leasing deal to a firm closely aligned with state Republican officials. Catterson’s actions, along with those of his father, who also played a role in the scheme, were examined by three separate investigations. Laura Brevetti, a former federal prosecutor hired by the county legislature to look into the matter, found that Catterson had no background in procurement policies and had bypassed county bidding procedures while awarding a consultant contract to a partner of a former state Republican Party chairman. A special grand jury inquiry later ruled that no criminal violations had occurred, although the leasing deal was squelched.

Catterson and Sweeny join Pataki’s earlier appointees in the First Department, who include Queens Republican Alfred Lerner, who wrote the panel’s realpolitik decision denying the Campaign for Fiscal Equity’s plea to redirect state education aid to city children. “Society needs workers in all levels of jobs, the majority of which may well be low level,” wrote Lerner, upholding the state’s right to provide only rudimentary education. To serve as the powerful presiding justice, Pataki chose John T. Buckley, a Republican from Utica. Buckley voted to move the Amadou Diallo shooting trial out of the Bronx and tried to block prosecution wiretaps of former state senator Guy Velella (see “Hear No Evil,” May 26–June 1, 2004).

Practitioners before the First Department say that Pataki’s appointments have made a court that was even in the best of times a tough place for criminal defense lawyers to win rulings, into a far harsher venue.

“There has been a sea change in terms of how they are deciding cases,” said one attorney who has long practiced there. “What would have been considered far to the right [on the court] is now the center.”

Bloomberg’s lawyers would have appealed the contempt motion regardless of the court’s makeup. But they’re sure to get a sympathetic ear from the Pataki-era bench as to why the city shouldn’t be punished for violating a judge’s order that they were keeping too many in jail for too long for too little.