As noted here, when Queens District Attorney Richard Brown decided that he didn’t want Supreme Court Justice Joel Blumenfeld ruling on his “routine” questioning of defendants immediately in advance of arraignment, just to give them a last chance to explain themselves (or confess, should that be their wont), he went for mandamus.  No way he was going to risk an adverse ruling and appeal.

DA Brown, you see, used to be Judge Brown at the Appellate Division, Second Department.  And that just happens to be the place where his Article 78 proceeding to silence Judge Blumenfeld goes.  But as Joel Cohen and Katherine Helm note in this Law.com post, that’s just where the confusion starts. 

What happens if you call out “judge” in a room and every person turns their head?  Welcome to the problem in Queens.

When Justice (the technical name given all statewide judges other than those on the Court of Appeals, New York’s highest court, as opposed to its trial court, called the Supreme Court) Blumenfeld had issues about “Judge” Brown’s defendant interviews mere moments before counsel was assigned, he called on Cardozo law prof Ellen Yaroshefsky for her opinion.

Justice Blumenfeld, in the context of a confession suppression hearing, decided to hold a hearing on the ethics of the DA’s practice. The judge asked a legal ethics professor, Ellen Yaroshefsky, to prepare an expert report exploring and analyzing the practice, as an aid to the court.

Yaroshefsky’s report was extremely critical of the prosecutors’ conduct. So disturbed was the Queens DA by the judge’s plan to hold a hearing and by the conclusory nature of the report, that his office instituted a rare mandamus proceeding to enjoin the hearing, arguing that the Supreme Court lacked authority to evaluate the prosecutors’ ethics. The DA’s moving papers castigated Yaroshefsky as an activist who favored criminal defendants and made several ad hominem references to a prior representation and her client in that matter, former attorney Lynn Stewart.

Who trumps a lawprof?  How about a retired big league Judge?

In support of the ethical propriety of his Queens Central Booking Program of unrepresented defendants, District Attorney Brown offered his own papers supporting his mandamus petition to his former court. In a one-two punch, he also retained, pro bono, a distinguished, retired judge of the Court of Appeals (New York’s highest court) and former law school dean, Joseph Bellacosa, to offer an additional affidavit. Bellacosa’s opinion focused on what he deemed the impropriety of Yaroshefsky’s report, finding it “puzzling, unfounded and ironically bordering on irresponsibly unprofessional conduct.”

Bellacosa’s significant credentials and accomplishments in New York’s appellate courts, including his Court of Appeals opinions on legal ethics, buttressed the force of his report to the court whose decisions he himself used to review. The district attorney’s office papers kept reminding their readers precisely who was on their side, i.e., that they had a noted “judge” in their corner. They basically trotted out the affidavits, dressed up in black robes.

Need a score card to keep up with the judges?

The problem, as well laid out by Cohen and Helm, was the propriety of using the honorific title of “judge” as the kicker to remind the court which side had the most judges on the payroll.

Of course, Bellacosa doesn’t call himself “Judge” Bellacosa in his affidavit nor encourage the Appellate Division justices who will decide the mandamus petition to do so. He does, of course, makes very clear precisely who he is by virtue of his important works on the courts, and we don’t quarrel here with his conduct in submitting such an affidavit as he did. However, far more patently, the district attorney’s office time and time again in its papers makes clear precisely who their expert is — by name, “Judge” Bellacosa — lest the appellate court forget who was on the DA’s side.

There’s nothing prohibited, nor wrong, about a former judge who aged out or otherwise moved on in their legal career either using their judicial experience and good works in support of their credibility or letting others know that they once wore a robe.  And there’s nothing wrong, as is commonly done, for former judges to enjoy the honorific title of “Judge,” although it would be awkward, not to mention contrary to the ABA ethics opinion (ABA Formal Op. 95-391) to use it in the courtroom.  Best to let the folks actually being paid to be the judge that day enjoy the title all by their lonesome.

Still, nobody misses the implications, and Judge Blumenfeld wasn’t about to let Judge Brown’s use of Judge Bellacosa on his side go unnoticed.

Justice Blumenfeld and Professor Yaroshefsky met the DA’s expert with a counter-expert: Lawrence Fox, a law firm partner in a significant law firm, former chairman of ABA’s Standing Committee on Legal Ethics and Professional Responsibility and visiting lecturer on legal ethics at Yale Law. Pertinent here, and putting aside whether (Judge or Dean) Bellacosa or Fox is right on the merits, Fox’s amicus brief said the following about Bellacosa:

Finally, Yaroshefsky amici cannot permit the petitioner’s constant references to “Judge” Bellacosa, and the characterization of his views go unaddressed. The way the District Attorney describes it, one would think this court should rein in Justice Blumenfeld because a far higher authority, “Judge” Bellacosa, has spoken. But in fact this is improper advocacy based on the participation in this proceeding by a retired judge. At the point where “Judge” Bellacosa is providing his opinion, he is just another lawyer, laboring in the vineyard the same way amici are. And to continue to treat him as if he were a judge and his opinion entitled to some exalted status by virtue of that judgeship, is clearly contrary to the way former judges who practice law should be treated.

There is no question that there are some heavy hitters in this game, whether or not the title judge goes along with the advocate, and their credentials and significant past successes certainly play a legitimate role in weighing the merit of their opinions. 

But the question remains whether the Second Department will make its decision in this bizarre mandamus case, where the prosecution seeks to silence a sitting judge from ruling on the propriety of its hugely dubious practice of manipulating statements from defendants in the moments before they are represented by counsel, based on which side has the most judges.

Or will the court ignore the fact that almost everybody in the room can be called “judge” at cocktail parties and decide instead on the merits.  To that end, I note that Richard Willstatter, who sits in my old spot as amicus chair of the NYSACDL, has  submitted an excellent brief in the matter as well, even though nobody calls him judge.  Yet.

The extraordinary move by Brown to stop Justice Blumenfeld from rendering a decision on a case before him raises fundamental issues of judicial independence, aside from the underlying propriety of Brown’s deceptive and manipulative questioning of defendants at their most vulnerable.  Clearly, the implications of this case are broad for both the courts as well as sanctity of a defendant’s right to remain silent and the Supreme Court’s Miranda warnings, and the Queens DA has brought out the big guns.  Will it overwhelm the judges on the Second Department, or will they remain the only judges in the room that matter?

One might wonder, given all the judicial testosterone in the room, how Ellen Yaroshefsky feels about being a mere lawprof in the presence of so many black robers.  Knowing Ellen, my bet is that she’s never felt better.