The strange case of Queens District Attorney Richard Brown going after Supreme Court Justice Joel Blumenthal for, of all the gall, questioning the propriety of potentially manipulating defendants into giving statements before counsel is assigned, has gotten even stranger. Much stranger.
Brown is trying to preemptively stop Blumenthal from ruling on a pre-trial motion to suppress statements via mandamus, and brought out the big gun by engaging former New York Court of Appeals Judge Joseph Bellacosa as his expert to shoot down the opinion of lawprof Ellen Yaroshefsky. Aside from the laying on the judge-thing just a bit too thick, not too big a deal.
But Judge Bellacosa, who was well-regarded during his tenure on the big bench from 1987 through 2000, has shed whatever judicial temperament he once possessed, in reportedly raised in Ridgewood section, at the Queens border, which would make his Bed-Sty claim not only a bit specious, but suggest that the gang down the street might take umbrage at his claim to toughness. The Bed-Sty view of Ridgewood is that people there dress funny, perhaps meaning “they wear black robes.”
But then it gets worse. In closing, Bellacosa writes:
With No Due Respect,
Joseph W. Bellacosa
You’ve got to be kidding? Written like a five year old. From Ridgewood. Queens. Where’s the part where he tells Fox that his mother wears army boots? Oops, it’s in there too.
My disdain for the adversarial exuberance of your oxymoronically labeled amicus curiae brief, in this particular regard and in other respects I have noted in this letter, is pungent; no less so is my profound disappointment with those who wittingly or unwittingly signed onto your manifestly unfriendly letter.So now the amicus curiae are “oxymoronically” “manifestly unfriendly” (and note that the emphasis is from the original. Bellacosa holds nothing back. That’s how those Bed-Sty guys roll.
It may be understandable that after spending most of his adult life hanging in the Albany hood with the players, Bellacosa finds the “tussle” of the trenches less friendly toward him than he thinks it should be. That’s what comes of too many years of hearing “Ya Honor” when people people don’t really think your jokes are very funny, but will laugh anyway just to keep from pissing you off.
But having chosen to sidle up to “Get Down” Brown in this shooting match, expectations that his word from on high would be treated with the same deference he enjoyed while wearing the robe might be a bit misplaced. The problem with being a former judge is that you’re a former judge. In the trenches, you get splattered with the same much that covers everybody else. You’re no longer enveloped by judicial immunity.
Apparently, Bellacosa’s rearing didn’t prepare him for disagreement. Apparently, he didn’t like being challenged. Apparently, it brought out the Bed-Sty in him, which is why you’re probably humming songs from West Side Story even as you read this.
Bummer that you find trench warfare “unfriendly,” judge. It can be like that sometimes. But that’s how things go in the trenches, where people tell you when you’re ugly and you dress funny. Happens all the time. Get used to it.
If you want to prove you’re still up for the fight, however, don’t close your letter with something as lame as “With No Due Respect.” That just makes you sound like a baby. Try something macho, like “Bring In On, Motha.” And if you end up going mano a mano with Fox in the gutter, I would appreciate the head’s up. My money is on Fox. Heck, I’ll take Yaroshefsky over you. You can barely manage the verbal tussle, so Bed-Sty or not, your days of cage fighting are likely well behind you.
With all due respect.
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1) This is kinda sad to see a former judge who did have a decent reputation acting like such a dope. Its also a little funny to see what years of isolation on the bench does.
2) What is the deal with lawyers who grew up in Brooklyn always harping on that? I didn’t know it extended to former judges of the Court of Appeals, but throughout my career I have always either been working for as an associate, or been opposing on the other side, a lawyer who grew up in Brooklyn and thinks that 1) that gives him some kind of litigation resolve that is to be feared, and 2) it gives him a background that others will never understand. Never. Ever. Often, both of the lead counsel in a dispute will be nice Jewish boys from brooklyn, each thinking that he is the toughest mutha on the block, because after all, he’s from Brooklyn, without realizing that the other guy grew up a block away and is turning to his associates and making the same bravado remarks.
Finally, its been my experience that most of the brooklyn tough guy lawyers who are ready to rumble on a moments notice dwell in the tony suburbs of Westchester, New Jersey or Long Island. Maybe Park Avenue, but never even a wimpy Brooklyn neighborhood like Park Slope or Brooklyn Heights.
Astute observations all. Having come from Jersey, and the closest I came to Brooklyn as a yute was passing through on the way to the ’64 Worlds Fair, I can’t explain the mindset. But as every Brooklynite knows, Brooklyn Heights might as well be in Stamford for all the Brooklyn it possesses.
Late here, linking from Radley Balko’s The Agitator.
Three responses come to mind wrt “JUDGE” Bellacosa. Two are quotes. The first is from Justice Scalia:
“It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg’s exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.”
Nice backhander and the intent is quite clear. The other quote is of the opposite sort: how to express your disagreement in exceedingly polite terms:
“I find it difficult to express with appropriate moderation my disagreement with the proposition put forward…”
That is Lord Hoffman in Tomlinson v Congleton (2003 UKHL 47 at para 46). Butter wouldn’t melt in his mouth, but Lord Justice Selby knew he had been bench-slapped!
And finally there is the hidden insult which appears benign and sterile while hiding the fact that it is erudite and devastating. It requires particularized knowledge and is only harsh when that knowledge is revealed).
Mr. Fox’ response in this vein would be:
“My response to Mr. Bellacaso is the same as the Defendant in the English case of Arkel v Pressman.”
(A little google-fu will reveal that the defendant’s response in the exchange of solicitor’s letters was ‘Fuck off’).
*********
To the matter at hand, the Court of Appeal has no proper basis for granting any Order of Mandamus, without overstepping the bounds of judicial independence.
Moreover Brown is asking for an Order on an incomplete record.
The Writ of Mandamus is *old* (circa 1280 or so) and has always be a command (mandamus: Latin for ‘we command’) from a superior, to an inferior, to carry out a *prescribed* duty, in accordance with law.
‘Habeus corpus’ are the opening words of that writ to a sheriff, and the verb was the same: “Having the body of John Doe in your bailiwick, WE COMMAND that you bring him before the court to be dealt with in accordance with the law.” A Mandamus Order commenced with a pre-emptive command.
But a Mandamus never requires the inferior to act in a specific manner with respect to the questions before him. That would usurp his function. Injustice Brown wants an Order which denies Justice Blumenthal the *power* to consider whether certain actions of the State (the DA’s office) have breached the Fourth Amendment Rights of the defendant. This is not done by precedent, that the action (Terry stop etc) have been reviewed and upheld previously, but that *any* examination of the interrogation is preliminarily forbidden to the Judge, on the basis that the ‘ethics’ of the matter are outside judicial contemplation.
What’s left for a judge to do?
(Hhhmm, if a defendant shoots the DA, can he claim self-defence by reason of the DA’s unethical breach of his 4th Amendment rights?)