Judge Michalek’s Bad Choices

The background was somewhat typical of an upstate New York Supreme Court justice.  District Attorney’s office, where he rose to some prominence as head of a bureau. Private practice in a small firm, where he handled what passes in the boondocks as high profile cases. John Michalek seemed destined for a decent career as a judge to cap off his decent career as a lawyer.

In 1985, after serving four years as chief of the Justice Courts Bureau, Michalek left the DA’s office and established a Hamburg law firm with two partners, Daniel J. Henry* and Robert M. Vallarini, who later would win election as an Erie County legislator. Michalek handled some criminal defense work with the law firm, and his most famous – or infamous – client was the late Richard W. Matt.

For the most part, he was well regarded as a fair, if conservative judge.

“I practiced before him on several different lawsuits, and I thought he was fair and very careful,” said Cosgrove, Michalek’s former boss. “As far as I am concerned, his past and present reputations are marvelous. I don’t know of anything contrary to that. I’d have to understand every part of what happened before I made any judgments on him.”

Not universally loved, but then, who is?

One local attorney, Arthur Giacalone,** said he had a bad experience with Michalek and felt he treated him and his client unfairly during a 2014 trial. But most attorneys and court officials interviewed by The News in recent weeks said Michalek had a solid reputation.

So when the investigation of Justice Michalek became public, it was shocking.

It was nearly a year ago when search warrants were executed at the homes of three high-level political operatives; Steve Casey (former Deputy Mayor of Buffalo), Chris Grant (then-Chief of Staff to Congressman Chris Collins) and former Erie County Democratic Committee Chairman Steve Pigeon.

Michalek had been questioned by investigators on whether or not Michalek asked Steve Pigeon for help landing a job for a relative, when at the same time a Pigeon associate had a multi-million-dollar case pending before the judge.

And apparently, Michalek did what would seem unbearably stupid. He pleaded guilty to bribery and filing a false instrument.  Which raises Michalek’s*** second really poor decision.

Carrie H. Cohen made her legal reputation prosecuting public corruption and building cases against people in high places who abused their positions.

As an assistant U.S. attorney, she led the criminal case against former Assembly Speaker Sheldon Silver.

While in the state Attorney General’s Office, she prosecuted former State Comptroller Alan G. Hevesi, who  used state employees to conduct personal business.

Now, she is on the other side of the table, as a defense attorney. And she is defending John A. Michalek, who pleaded guilty Wednesday to felony charges of bribery and filing a false instrument.

About twelve seconds out of the United States Attorneys office, and into a sweet office at Morrison Foerster, Carrie Cohen snagged a dirty judge. Great for Cohen, who just repaid her signing bonus, but what about Michalek?

Cohen negotiated Michalek’s plea agreement, which includes the stipulation that the state Attorney General’s Office will make no sentencing recommendation in the case if Michalek cooperates with its investigation into public corruption. At the center of the state probe is political operative G. Steven Pigeon, who is expected in court Thursday morning on other charges.

To break down the zealous representation provided Michalek, Prosecutor-yesterday Cohen managed to get a Supreme Court Justice a deal of snitching cooperation with a promise of no sentencing recommendation.  Well, them’s some mad criminal defense skillz, pulling off the deal of the century by flipping her judge into a rat for . . . nothing.

In contrast, one of Buffalo’s best defense lawyers, Paul Cambria, came up with a different strategy.

Steve Pigeon’s attorney, Paul Cambria, says Pigeon will be on [sic] court on Thursday and will “vehemently deny any wrong doing and we look forward to our day in court.”

See what he did there? Cambria will try this case and zealously defend his client. He may win. He may lose. What he won’t do is run to the prosecution the minute the retainer check clears to sign his client up as a snitch.

So what was it, that Cohen went Biglaw, where no one can ever win? That the only arrow in Cohen’s quiver was to use her prosecutor connections to lose as quickly as possible? To throw in the towel as quickly as possible, because that’s what a good prosecutor does?

In return for his guilty plea, the State Attorney General’s Office has asked Michalek to cooperate in their investigation against Pigeon. Attorney and legal analyst Steve Boyd says that could help Michalek avoid jail time.

Putting aside this deeply insightful bit of legal analysis, Cohen didn’t even manage to get a firm commitment that in exchange for the disgraced judge’s cooperation, he doesn’t go to jail.

But Cohen was the prosecutor who nailed Shelly Silver, so she must be good, right?

The Silver case garnered extra attention for Cohen. In a profile for “The American Lawyer,” Vivia Chen described her as a workaholic who still managed to make time for her family, “a bit of a wisecracker who exudes constant energy.”

Vivia has this thing about promoting women lawyers, without regard to much beyond their gender.  Maybe Cohen was a wisecracker prosecutor. Maybe Cohen “exudes constant energy.” Cohen definitely won against Shelly Silver.  And yet, Michalek would have done well to look elsewhere for his representation, because this is what comes of retaining a criminal defense lawyer fresh out of the United States Attorney’s office who can’t wait to lose.

As for Cambria’s client, it would be particularly ironic if he kicks butt on trial and beats the case. He chose a lawyer with the will to fight and the skill to win. And even if he doesn’t, he won’t have to live out his life with the ignominy of being not merely dirty, but a sniveling rat as well.

*Full disclosure 1: I’m old friends with Dan Henry, whom I’ve always known to be a great lawyer, decent human being and person of integrity.

**Full disclosure 2: I’m friends with Arthur Giacalone, as well as his brother, David, who had a well-regarded ethics “weblog,” Ethical Esq., later renamed f/k/a.

***A judge is no longer entitled to his title when he is forced to resign after pleading guilty to a felony. Indeed, it’s the one time that being a former judge is a badge of disgrace.

H/T Kathleen Casey

5 thoughts on “Judge Michalek’s Bad Choices

  1. Scott Morrell

    It seems incredibly unwise not to get an assurance to avoid jail time for her client. I agree and seems incompetent or arrogant on Cohen’s part. Maybe she just can’t kick the prosecutor out of her so soon going into a private practice.

    However, is it possible that the charges against the judge were so dead to rights that the best option was a plea while the offering might have been closing? How do we know how much the prosecutors had on the judge? I know it seems like throwing in the towel too soon, or at all, but sometimes is that the right move given a set of facts?

    Happy 4th!

    1. SHG Post author

      This is where knowing about practicing crim law makes it different than not knowing. Except for large, multi-defendant conspiracies, where the rush to flip matters because only the first rat gets the deal, Michalek could have cooperated at any point, and Cohen could have defended, if not because of a question of guilt, then in the effort to find a crack somewhere in the case to exploit.

      If nothing arose, then the opportunity to flip was always there and could have been done anytime before the jury returned a verdict (and maybe even afterward). There was no rush, and no benefit to rushing, especially since she got squat in return. So while your speculation is understandable from an outsider’s perspective, it’s not what any knowledgeable person would say.

      Happy 4th to you too.

  2. Art Giacalone

    Scott, I thought I’d give you and your readers a bit more background on John Michalek. My first glimpse at his legal mind was around 1990. I had just started doing zoning/land use law in the Buffalo area when I was hired by an informal group of residents to fight a rezoning that had been granted to a developer who planned on building a large subdivision adjacent to my clients’ quiet residential street. I successfully obtained a ruling nullifying the rezoning based on the town’s failure to comply with the State’s environmental review law. The developer re-applied for rezoning, the Town of Hamburg town board actually gave some thought to the environmental impacts, and denied the rezoning request. The developer went back to court to challenge the denial. Shortly after the papers were served on the town, I made a motion to intervene to make certain the town didn’t just cave-in and allow the developer to prevail in court. A few days later, I received a call from the young assistant town attorney named John Michalek. He told me, in an incredibly excited voice, that he had the perfect defense to defeat the developer’s legal challenge: The developer lacked standing to challenge the rezoning denial. No matter how hard I tried, I could not convince John that, of course, the developer had the right to challenge the town’s denial of his own rezoning request. At court the following week, I made my legal arguments, and the kindly old judge asked Michalek if he had anything to add. “Yes, Your Honor,” the young assistant town attorney replied, “the petitioner lacks standing to challenge the rezoning.” The judge’s eyes glazed over, he thanked Mr. Michalek, and then dismissed the legal challenge based on my clients’ arguments.

    Sadly, that was not my final interaction with the former assistant town attorney. John Michalek is a judge who for three years – the same three-year period during which he and Pigeon were weaving their bribery web – gave nightmares to me and my long-time City of Buffalo clients fighting an out-of-scale and out-of-character hotel/mixed-use facility in a popular neighborhood in Buffalo called the Elmwood Village. The opposing counsel and, in my opinion, the beneficiary of Michalek’s questionable conduct and rulings, was former NYS Attorney General Dennis Vacco [an influential Republican/Conservative party operative in Western New York]. Coincidentally, Vacco has been identified in the Buffalo News as one of Pigeon’s co-counsels in fighting the bribery charges.

    To date, I appear to be the only lawyer who has been willing to speak out publicly about Michalek’s less-than-perfect record as a judge. Many have told me privately of his baffling rulings and non-judicial temperament. My very first blog post from January 2014 was about how Michalek had trampled on my First Amendment rights, until his gag order got reverse by NY’s intermediate appellate court.

    Coincidentally, the same day the Buffalo News reported on Michalek’s guilty plea, my letter-to-the-editor pointing out a number of reasons NYS has a difficult time assuring an ethical judiciary (inspired by my interactions with Michalek and efforts to do something abut his conduct) was published in the “BULLETIN”, Erie Co. Bar Association’s newsletter. I look forward to reading the responses.

    Thanks for writing about Michalek’s bad choices. To quote a blues song I heard a couple years ago, the former jurist may not be “the sharpest marble in the drawer.”

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