News & Politics

The Chamber: In Judge Edward McLaughlin’s Court, the Gavel Comes Down

by

Over the next months, the remaining trials to come out of the biggest gang takedown in New York City history will begin, the result of an investigation Manhattan District Attorney Cyrus Vance has touted as a centerpiece of his time in office.

In June 2014, 103 boys and young men, most between fifteen years old and their mid-twenties, were indicted. Many were picked up in an early-morning raid, stormed by cops in flak vests in the public housing projects in West Harlem. The D.A.’s office billed it as the largest gang bust in New York City history, and Vance extolled its scale: Over the four-year investigation, authorities “analyzed more than 40,000 calls from correctional facilities, screened hundreds of hours of surveillance video, and reviewed more than a million social-media pages.” Those named in the 145-count indictment were charged with two murders, nineteen non-fatal shootings, and possession of firearms. The case, Vance said, would make the neighborhood safer and was part of a larger initiative of targeting “violent organized street crime.”

But in the intervening year and a half, the 103 arrests have dwindled to a mere handful of open cases. One by one, the overwhelming majority of those arrested have opted not to exercise their constitutional right to a trial. Of the 103 defendants, 94 — over 90 percent — pleaded guilty. To prosecutors, the high number of pleas testifies to the strength of the cases they’ve built. But there’s reason to think that’s not the only factor at play. Across the country, a similar proportion of criminal defendants plead guilty: Nationwide, the rate is likewise greater than 90 percent, and it’s even higher in New York City, according to a 2014 criminal court report. Some of the defendants may well be taking pleas because they are guilty and wouldn’t dare to risk trial. But as the criminal justice process has come under closer scrutiny in recent years, it’s clear that many factors drive the system to extract guilty pleas from people who might otherwise have fought their cases and won. There is overcharging by prosecutors, which threatens longer prison terms should the defendant be convicted, pressuring them to enter guilty pleas to secure shorter sentences. High bail, meanwhile, keeps suspects awaiting trial behind bars at Rikers Island, sometimes for years, until they break. And if they persevere and make it before a jury, they’re represented by underpaid, overworked lawyers. These things have been fairly well documented. But one piece of this system is less widely understood: the role judges play in the pipeline to prison.

One day last spring Paul Washington, one of the defendants in the Harlem gang case, was scheduled for a “status hearing” in Manhattan Criminal Court’s Room 1530, the court of Judge Edward Jude McLaughlin. The phrase “In God We Trust” appeared on the wall above the judge’s head.

Washington’s mother, Michelle Doles, was seated in the courtroom, tapping her foot and nervously clasping and unclasping her hands as she waited for her son to be led in. It was one of innumerable court appearances, and each time she left with a new court date, a feeling of uncertainty — and Washington still locked up at Rikers. Maybe today’s hearing would be different.

“We’re not bringing Mr. Washington down,” McLaughlin announced. He thumbed through documents at his bench, glancing at the clock. “We’re understaffed and, at the moment, there’s no resolution.” There weren’t enough officers. Doles began to protest, but her son’s attorney silenced her. He didn’t object to the decision. Washington hadn’t reached an agreement with prosecutors – rejecting an offer of thirteen years — so there was no other option but to adjourn, mark down the date of the rescheduled appearance, and exit the courtroom. Doles broke down, her head buried in her hands, sobbing. It was a common sight among the family members of those indicted in the Harlem gang case, who have been in the gallery of McLaughlin’s court off and on for the past year and change. From one week to the next, family members and defendants alike appeared more beaten down. Their fatigue was palpable.

The early-morning Harlem raid led to 103 indictments.

McLaughlin, cutting a slim figure in his black robe and appearing boyish, still, in his late sixties, stood behind the bench. If he noticed the sobbing mother, it wasn’t apparent. He’s known as the “standing judge” — he never sits. He’s known for running an efficient courtroom. And he looks at the clock often. His demeanor can be disconcerting, particularly at first, but over the course of months, with the gang cases unfolding before him, a picture emerges of a complex man. At times, he can be kind and humorous to defendants and their attorneys. Other days are different.

If his name sounds familiar, it’s likely because McLaughlin was in the news last October after he recommended Tyrone Howard, thirty and with a long string of arrests, for a rehabilitation program instead of prison. Howard blew off the program and is now charged with the fatal shooting of NYPD Officer Randolph Holder. The reaction was explosive — Mayor Bill de Blasio and Police Commissioner William J. Bratton blasted McLaughlin, and social media erupted with posts about the judge’s apparent leniency.

Washington eventually took the thirteen-year plea deal in state prison.

It’s natural enough to be afraid in such circumstances — whether you’re guilty or not. But the youths in McLaughlin’s court have extra cause for concern. For McLaughlin, who’s 69, with 33 years on the bench, is also known as “the hanging judge.” And while it’s hard to quantify a judicial reputation through any official measure, according to a review by the Voice of hundreds of appeals of cases, McLaughlin’s moniker is well earned.

“He’s a D.A.’s judge, and he’s the worst,” says Michael Fineman, a criminal defense attorney, echoing sentiments about McLaughlin shared by many defense attorneys who spoke to the Voice. Most of those lawyers aren’t willing to talk on the record because McLaughlin could decide their future cases, but the mention of his name sometimes elicits a wry chuckle. Most agree that he is one of the stricter judges.

Not that we can know for certain. “There’s not really a record kept for us to get information on judges, so we share what we know and sit in on trials to watch and take notes,” says a public defender, speaking on the condition of anonymity.

If there were records kept to compare judges, it would help create a fairer system of justice, according to Nicole D. Porter, director for the Sentencing Project, a Washington, D.C.—based nonprofit. She says there isn’t a comprehensive database to show statistical profiles on judges at the criminal-court level because “it’s a question of limited resources.” That said, Porter adds, “The majority of sentencing in the U.S. is excessive. [More tracked data] could help shine a light on sentencing practices and disparities that happen.”

Glenn E. Martin, a criminal justice reform advocate, said over 90 percent of people charged with crimes take pleas because the system has become coercive in such a way that it offers no clear alternative to lengthy prison sentences. “Is this evidence of a problematic criminal justice system? Absolutely,” he said. Martin was somewhat familiar with McLaughlin’s reputation: “This is sort of how he operates.”

With the exception of the U.S. Supreme Court and other federal positions, the judiciary has largely escaped the kind of close scrutiny trained on police over the past several years, in the wake of the killing of unarmed black men like Eric Garner and Michael Brown. But the composition of the judiciary is of acute interest to the defendants in the 236,479 cases considered citywide in 2015 by the panel that assigns “18-B” lawyers, the $75-an-hour attorneys appointed by the city to defendants who can’t afford their own. The odds of fighting a case with an 18-B lawyer are slim: Only 360 of those cases went to trial, less than 1 percent. The vast majority took plea deals that meant prison time.

“A lot of people plead out because they don’t want to risk the potential of double-digits to life sentences if they lose,” says Michelle Villasenor-Grant, senior trial attorney at the Neighborhood Defender Service of Harlem. “And the judge plays a role — there’s a few tougher judges around that you don’t want to face.”

‘If I told you some of what judges said — oh, my God.’ — retired judge Emily Goodman

The nature and reputation of a judge can become a looming factor in deciding whether to take a plea or go to trial. And when, as in the Harlem gang case, the judge is McLaughlin, it affected the decision for at least one of the 103 people indicted: Sabio Iglesia, an alleged member of the 3Staccs crew. Iglesia’s mother, Miriam Ortiz, said she was advised to avoid trial by her son’s lawyer, Robert Levy, himself an 18-B lawyer.

“He said the case against my son isn’t a very strong case, but we shouldn’t take a chance of going to trial, and part of the reason is because of the judge,” says Ortiz. “It’s my son’s first felony, but could we risk trial knowing the judge might give him a decades-long sentence?”

Levy confirms this, saying, “There are always judges with tough reputations, and everybody who practices in the courts knows who they are — Judge McLaughlin is one of those, so it was a substantial risk to go to trial. He has a reputation for coming down really hard.” Iglesia ended up taking an eight-year plea deal.

The process of appointing judges to the bench in New York City is not a secret procedure, but it mostly takes place out of the public eye. Candidates for criminal court judgeships are selected by the Mayor’s Advisory Committee on the Judiciary, which has up to nineteen members; the mayor selects the appointee from among those candidates. Judges serve ten-year terms and then come up for reappointment, which is pretty much automatic. It is essentially a lifelong job until the age of seventy, when the New York State Constitution requires them to retire.

“You have to have ten years of experience as an attorney,” says Robert G.M. Keating, who was the vice chair of the Advisory Committee under Mayor Michael Bloomberg and is a former New York City Criminal Court administrative judge. “It’s an extensive vetting process before you get to the interview stage. We interview a number of people and then the committee selects usually ten candidates for every one vacancy that occurs in each court.” Three finalists are chosen from the ten. “The mayor interviews the final candidates and then selects one out of the three given to him. It’s a merit appointment process and insulates applicants from political considerations.”

However insulated the process, Keating allows that former prosecutors have an inside track. “Someone who may have been a prosecutor with substantial experience would have a significant benefit because they know something about the court,” he says. “There are a lot of prosecutors in the city. They’re the largest institutions involved in criminal court, and just numerically they have an advantage.”

McLaughlin is one of 139 criminal court judges in New York City. Of those, 81 are former prosecutors; 58 percent of the 139 were assistant district attorneys or worked for D.A.s’ offices in some capacity. McLaughlin fits the model perfectly: He started out in 1972 as a New York City assistant district attorney, moving on five years later to the New York State Anti-Corruption Special Prosecutor’s Office. In 1983, he was appointed by Mayor Edward Koch to the criminal court bench. Three years later he was appointed an acting justice of the Supreme Court by Chief Judge Sol Wachtler, the man who said a D.A. could get a grand jury to “indict a ham sandwich.”

McLaughlin turns seventy this year. That means Mayor de Blasio will get to select his replacement. De Blasio appointed six new judges to the criminal court in 2015; three of them were former assistant district attorneys. In January, he named another eight judges, half of whom had been D.A.s (one of those had also been a legal aid lawyer).

Those decisions can have far-reaching consequences, especially when a judge goes on to serve for decades, as McLaughlin has. According to Ikiesha Whittaker, a former Manhattan prosecutor who is now a defense attorney, the prosecutorial mindset is persistent and has long-term repercussions once a candidate reaches the bench. “It’s just an extension of what you used to do as an A.D.A.,” says Whittaker. “You’ll find that judges who used to be criminal defense attorneys are a lot more likely to fully listen to the defense and render a lot more even ruling.”

“I was atypical as a progressive judge,” says retired Supreme Court judge Emily J. Goodman, who served from 1991 to 2012. Sitting on her couch in her Upper West Side apartment, surrounded by books and newspapers, she pushes her reading glasses back over her auburn hair and opens her laptop, pointing to an article she published in the Nation on judicial empathy. “If I told you some of what judges said — oh, my God. Most are very cynical and believe in guilt before they’ll believe you’re innocent.”

Goodman is the first to admit that she wasn’t exactly “tough” during her time on the bench. “The judicial system is so frustrating to me,” she says, adding that most judges will do what they must in order to sit on the bench of the Supreme Court of the State of New York. “Many judges are tough because they have to be — for their own ambitions and reputations,” she says. “There’s power and protection in being a ‘lock ’em up and throw away the key’ judge. The whole system operates on keeping the bodies going, how many cases you dispose of and how quickly. The number resolved by pleas — the more, the better.”

Goodman didn’t want to be that kind of judge. Her goal was, as she says, to “just do what’s right.” But that meant being considered lenient, and those who didn’t “play ball” were not held in high regard. The more punitive the judge, the more power and prestige. “I don’t know how some of these judges can sleep well at night,” she says. “But I do. I absolutely do. De Blasio is appointing judges that are not all former prosecutors, but that’s been the pattern. I think the former mayors think it’s good for them that the public perception of them is that they appointed prosecutors to be judges, especially if the mayors have further ambitions.”

Particularly important in Goodman’s view of the judicial system is the role of New York’s restrictive discovery statute, which makes it possible for the district attorney to withhold evidence that Goodman believes should be disclosed well in advance of a trial. Due to a law, known as Article 240, passed by the legislature in 1979, prosecutors are allowed to withhold evidence, including the names of witnesses and even police reports, right up to the time the trial begins. Numerous attorneys have complained this hampers an effective defense. The Manhattan D.A.’s office is known for turning over minimal evidence until just before a trial. The Legal Aid Society calls this law “outmoded and unfair.”

In cases like the Harlem gang arrests, that statute becomes a critical tool in the process of negotiating pleas deals: Because it is so hard for the accused to assess the evidence against them, they are almost by definition in a weak bargaining position.

Goodman also says that while federal and immigration court judges’ records are available to the public, there is almost zero accountability for criminal court judges. That’s partly due to financial constraints, but critics point out that there’s little incentive for members of the system to make hard data available, aside from simply noting judicial case loads.

That kind of opacity, obviously, makes it extremely difficult to assess any judge’s individual tendencies. So in an effort to get some insight into Judge McLaughlin as the Harlem gang trials approached, the Voice looked at hundreds of appeals reported in West’s New York Supplement, a commercial publication covering opinions and decisions from New York State courts, over the past five years, by ten acting or Supreme Court justices in Manhattan’s Criminal Court who have served for at least a decade. That research revealed that over 20 percent of McLaughlin’s cases were either modified or reversed by the Appellate Division of the Supreme Court, First Judicial Department. Out of 125 appeals in which McLaughlin was the sole judge or final judge presiding over the orders or convictions, the higher court reversed or modified 26. (The next judge on the list was roughly half as likely to have his cases reversed or modified as McLaughlin. At the bottom of the scale, only four judges had 5 percent or less of decisions modified or reversed. Three of those four had previously worked for the Legal Aid Society, a nonprofit working under contract with the city.)

When Koch appointed McLaughlin in 1983 he made note of “the small pool of minority and women lawyers who were eligible to serve as judges,” presumably by way of explaining why all five of his criminal court nominees were white, four of them men.

But no one could argue with McLaughlin’s qualifications. In addition to his long service as a prosecutor, he was the executive director of the state Advisory Commission on the Administration of Justice. His grandfather had even been chief judge of the New York Court of Appeals, the state’s highest court. He was born to the bench.

“I hold him in extremely high regard,” says Jordan Arnold, a former assistant district attorney in Manhattan who is now managing director of K-2 Intelligence, an investigative consulting firm. “I think he’s someone who has spoken quite eloquently in open court about the scourge of gun violence, the way it affects families and communities. It’s important to note that he’s given countless defendants the opportunity to rehabilitate themselves. He did it in cases I handled. He’s someone I would describe as thoughtful and who has spoken powerfully about the real-life consequences of the violence reflected in his courtroom.”

Former Manhattan District Attorney Robert Morgenthau, who retired in 2009 and is now 96, is also a fan. Morgenthau prosecuted most of the cases McLaughlin has presided over during his years on the bench. “I think highly of Judge McLaughlin,” he told the Voice. “In terms of details, I think he’s a very dedicated, fair, hardworking, and able judge. He’s a first-rate judge. I have a lot of respect for him.”

McLaughlin has overseen thousands of cases. And he has even been known to let his impassivity soften from time to time. One intern from 2010, Ravinder Singh, 21, remembers McLaughlin fondly. “There was a defense attorney that was getting really riled up and objecting every couple of minutes,” Singh recalls. “The judge, up until that point in my interactions with him, seemed the stereotypical image of what a judge would be — stern, serious, unemotional — and then, all of a sudden, breaking out of that character, he goes, ‘Yo, chill!’ ”

Still, any hint of levity vanishes at verdict time. Singh (who says McLaughlin told him he stands at the bench “because of his bad back, some medical ailment”) recalls watching the judge “hand down harsh sentences — ten or twenty years — like they were nothing. Families would be crying, and it was very hard to detect emotion from him. I never really saw any examples of leniency from him.”

One day last May, McLaughlin removed his robe and adjusted the pale yellow tie around the collar of his light pink shirt. A sentencing hearing had cut into his next meeting, and he didn’t like falling behind. McLaughlin is known for his efficiency, even given the burdensome backlog nearly all judges experience on their dockets.

When first asked, he declined an interview. But when baseball came up — Yankees or Mets? — he opened up.

“Mets.” Why? “It was a logical carryover from the Dodgers,” he said, adding that he preferred the National League, having been raised in Brooklyn before the Dodgers left town. Asked if he agreed with how others saw him — as a harsh judge who rules with an iron fist (this was prior to the killing of Officer Holder) — he conceded there was some truth to it. “Sure, I’m tough,” he said. “But I’ve given second, third chances. I’ve been fair — it’s not like I’m some intransigent.”

He added, “I don’t mind being perceived as tough. Maybe it’s a good idea I’m seen that way.”

He went on to describe, solemnly, even a bit wistfully, how confined his experience was behind the bench, and how most people could never fully comprehend what it was like to be in his position.

“I’ve been doing this for a long time,” he explained. “And people who haven’t been inside the courtroom as long as I have, they don’t see all I’ve seen over the years. There’s a lot — ”

McLaughlin’s voiced trailed off. “They couldn’t understand.”

From that point, the conversation took on a different tone. Here, on the eve of his retirement, he reflected on how he’d changed over the span of his judgeship. “As I’ve grown older, there’s more of a gray area,” he said. “There’s less black and white.” He paused, then nodded. “I see more gray than I did before.”

When approached again shortly after everyone from de Blasio to the police chief railed against him for the shooting death of Holder, McLaughlin — understandably — seemed wary of speaking with the press. Told that people wanted to learn more about him, he replied, “I don’t know if I want people to know me. I’d rather fade quietly into the sunset. You may have an idea of the story you want to write, but from my understanding it changes in the editorial process. And when my name is out there, people will come out and say this or that about me, and I don’t know if I want to be reminded of the past.”

Asked if his family history had influenced his decision to practice law, he said, “I don’t know if it had an overt or subconscious influence, a subterranean pull, but it may have.”

That led to a conversation about the origins of his judgeship, about whether he had always wanted to be a judge. But when the time came to talk about his performance in that role, McLaughlin interjected: “The maxim of the law and Saint Thomas More say, ‘Silence is agreement.’ If I don’t respond to what you’re going to tell me, it can be construed as that.”

So he learned that, after months of reviewing court documents of judges in Manhattan Criminal Court, the Voice had found that when compared to other judges, the so-called “hanging judge” appears to have the most cases modified or reversed on appeal. Did that surprise him?

“I don’t care and I don’t want to hear it,” he said. And with that, he was gone.

More:

Most Popular