In the next few weeks, Governor Kathy Hochul will be required to make the next appointment to the New York Court of Appeals. Noah Rosenblum, assistant professor at NYU School of Law, and Alice Fontier, president of the New York State association of criminal defense attorneys, discuss that appointment and explore how a progressive could change the court that former Governor Andrew Cuomo created.
[music]
Brian Lehrer: Brian Lehrer on WNYC. The race for governor of New York next year is starting to get crowded. There's news today that Jumaane Williams, the New York City Public Advocate is getting in. Letitia James, the current New York State Attorney General has shown signs of being about to declare, as have Mayor de Blasio and Congressman Tom Swasey. Governor Hochul, who took over when Andrew Cuomo resigned, of course, is running for reelection to a full term. Cuomo is hinting he may run for attorney general. On the Republican side, Long Island, Congressman Lee Zeldin and Andrew Giuliani, son of Rudy, are eyeing the governor's race. I'm sure I'm leaving people out.
Well, here's one issue for anyone who wants to be governor, that's not getting much media play but is in Governor Hochul's court right now. Who to appoint to the State's highest court, the Court of Appeals? There is a current opening to which Governor Hochul must appoint someone very soon. There is a movement among legal progressives to what they call UnCuomo the Court. Why? Because they say, Cuomo has appointed too many ex-prosecutors, biasing the court against criminal defendants.
Even that, he did this in pursuit of his own personal interests. We'll get to that part. These progressives want Hochul to appoint a public defender as the next Court of Appeal's judge for some balance. With me are two of those progressives, NYU Law professor, Noah Rosenblum. He has a new letter to the editor in the New York Law Journal. Alice Fontier, currently a public defender herself, and president of the New York State Association of Criminal Defense Attorney. Noah and Alice, thanks for coming on today. Welcome to WNYC.
Alice Fontier: Hi Brian. Thank you for having us.
Noah Rosenblum: Thank you for having us, Brian.
Brian Lehrer: Alice, would you start before we even get to the Cuomo-Hochul Court of Appeal's issues by telling our listeners basically what a public defender is. Laypeople hear the term often in the news for what you do for a living, but what is it really?
Alice Fontier: There's a very long and complicated explanation, but I'll try and give you the very short simple one. The reality is that the constitution guarantees you the right to have an attorney if you're charged with a crime. What happens is that if you cannot afford an attorney, an attorney is appointed for you, appointed by the court. Ultimately, what that means is that across the State and the country, public defender's offices have developed. Offices such as mine, which are independent offices, but receive a significant amount of funding from the county in New York is required to fund the public defenders in order to provide criminal defense attorneys to indigent people who are charged with crimes.
Brian Lehrer: Which are a lot of the people who are charged with crimes. Noah, remind us what the New York State Court of Appeals does. We say it's the State's highest court, like the US Supreme Court, but on the State level. Does it hear appeals and ordinary criminal trials, like the ones that Alice might defend and/or more like the US Supreme Court interpret the State constitution and make these from on high determinations about rights and wrongs? What makes the Court of Appeals important?
Noah Rosenblum: Thanks for the question, Brian. The Court of Appeals does both of those things. As you said, it is the State's highest court, which means that any appeal of New York law if you can get it to the highest level, it will be heard by the court. Because it's the highest court, it means that it is the ultimate authority on the meaning of New York State laws. What it says can very rarely be appealed anywhere else. The only conditions under which it can be appealed somewhere else are small and technical, which the law professor aside of me would love to get into, but are less important for this conversation.
You said, does it hear criminal appeals like the ones that Alice works on? The answer is, it's supposed to, but the way that a criminal appeal gets to the New York Court of Appeals is a little unusual. In the last few years, the court seems to have taken some deliberate steps to limit the number of those cases that it hears. If you'd asked me this question 10 years ago, I would have said, "Oh, yes, absolutely." Asking that question now highlights one of the changes that's happened at the court, which is part of why advocates like me and Alice are so concerned.
Brian Lehrer: Now we get to the plot. The makeup of the Court of Appeals, as you describe it, seven seats in all, was balanced in the sense of two conservatives, two liberals, and three vote centrists on the bench until last year. Noah, what happened then?
Noah Rosenblum: I'll tell you the story that's public, and then you'll have to draw your own conclusions from it. What we know is that Andrew Cuomo, as we all remember, was under investigation for alleged misconduct. Of course, when Attorney General James did release that report, that eventually led Cuomo to resign from the court. While he was under investigation, two seats on that court, two of the centrists, center seats unexpectedly became vacant. Cuomo was supposed to nominate people according to a timeline that's laid out in the statutes according to the laws.
Governor Cuomo just ignored those laws completely. Then at the very end of term, rammed two nominees through the State Senate, so nominated them at the very end of term when the State Senate was totally loaded down with other business, and then just leaned heavily on the State Senators to push these nominees through. It's important to know that this is usually a really uncontroversial process. No nominee has ever been rejected by the State Senate.
He really just can't pick these people, and then dared the Senate to break with tradition and precedent and vote against it. The other thing that's useful to know is that in an impeachment trial, the State Senate sits as part of the jury, but the judges of the New York Court of Appeals also sit as part of the jury. It sure looked to advocates like in this moment when Cuomo might have been vulnerable, he picked his own jury.
Brian Lehrer: Picked his own jury, you're accusing Cuomo of rebalancing the court to the right, to help save himself from impeachment. Alice, when we say conservative judges, in this context of the New York State Court of Appeals, the liberal judges, the conservative judges, the centrists swing judges, I'm guessing they're not conservative like Antonin Scalia conservative, or Amy Coney Barrett conservative. What do you mean by conservative in the Andrew Cuomo appointed context?
Alice Fontier: Yes, that's definitely correct, Brian. We are a heavily Democratic State. The voters have brought in entirely Democratic legislature. We are not talking about real conservative social values. To be frank, very few cases addressing the big overarching social values, like gay marriage. They go to the Court of Appeals very infrequently. The court historically in New York has been liberal in that context. I wouldn't expect that the current makeup of the Court of Appeals would change to be socially conservative. What Cuomo has done, over the course of time, has just created effectively a pipeline for people who have--
Brian Lehrer: Did we lose Alice's line?
Noah Rosenblum: Oh.
Brian Lehrer: I think we did. Do you want to finish her sentence, Noah?
Noah Rosenblum: I think what Alice was going to say is that Cuomo has created a pipeline for conservative jurists and for even lawyers with conservative sensibilities, and really a deep centric, a backing the police and coming out of prosecutors approach to get on to the State's highest court. It's not that New York is a center of the culture war, but of course, New York courts have been complicit in the same mass incarceration that we see in the federal system. The way that Cuomo was picking judges, especially, for the High Court, seem to play into that pattern.
Brian Lehrer: Your New York Law Journal piece says, "New York's highest court has historically been one of the most rights protective in the country, and has even, therefore, guided other courts around the country in that leadership role." You want to give us an example or two of that, that you think is in jeopardy?
Noah Rosenblum: Yes. This is something I'm very proud of as a New Yorker. It's something that we should be proud of in our State that historically we've had a great court. One example that law professors think about a lot is a case from 2009 called People v. Weaver. That's a case about whether the police could put a GPS tracking device on your car without a warrant. That's an issue that came up all across the country, and it came up in New York State. The New York Court of Appeals ruled very strongly saying, "Of course, you need a warrant if the police are going to track your car using a GPS tracker."
Now, that was not the law at the time at the federal level, but New York State said, "This is how we read our law," in a ruling by really one of our pioneering judges, Chief Judge Jonathan Lippman. Anyway, it was a divided case at the New York Court of Appeals. People argued about it. Then a few years later the United States Supreme Court took up the same question and they reached the exact same conclusion as the New York Court of Appeals and followed the ruling. That's a great example to me where the New York Court of Appeals said, "Look, we're going to protect your rights more in New York State," and then the Federal Courts eventually followed our lead.
There's another example I want to give because if that's a positive example, the example I'm going to give you now is one that makes me worried. This is the DeBour framework, the DeBour framework. Under New York State law, you actually have a lot of rights when the police want to come and talk to you. In fact, as a bunch of New York State court cases have said, you basically have the right to tell the police to go buzz off if you haven't done anything wrong. You don't have to talk to them. You don't have to answer their questions. You can just walk away if a police officer doesn't have any suspicion, but wants to come and start chatting with you.
We used to have a really well-defined framework that articulated all of these tiny but really important ways in which the police had to have well-founded suspicion to escalate their encounter with you. If you're just walking around, the cops can't even hold you and start asking you leading questions. Only if they start to have more and more degrees of reasonable suspicion, can they begin to interrogate you more pointedly or then try to detain you or frisk you or eventually arrest you. The key point is that in New York law we used to be really concerned about protecting you when the police wanted to talk to you. At the federal level, the law is much more police-friendly.
It makes it much easier for the cops to take action that I think ordinary citizens would consider pretty invasive, but that for pretty technical legal reasons we've decided to treat as not a restriction on your liberty. That distinction though, the DeBour framework, it only holds up if you've got New York judges who understand how specific and different New York law is from federal law, and are concerned about protecting those traditions and those rights. The current court hasn't been and as a result, it started to erode the DeBour framework. New York law is beginning to look more like federal law, which means New Yorkers are losing their rights with respect to police interrogations and they're not even aware of it.
Brian Lehrer: Listeners if you're just joining us, there is a movement among legal progressives to what they call UnCuomo The Court, the highest court in New York State, the Court of Appeals. They say Cuomo has appointed too many ex-prosecutors biasing the court against criminal defendants. We even heard from one of our two guests that allegedly he made two of these appointments last year in defense of his own interest of remaining in the governor's mansion if a question about that were to come before the Court of Appeals.
These progressives want Governor Hochul to appoint a public defender as the next Court of Appeals judge for some balance now that there is an opening and she's going to have to name someone shortly. My guests if you're just joining us are NYU Law Professor Noah Rosenblum who has a new letter to the editor about this in the New York Law Journal. I think we have Alice Fontier back, currently a public defender herself and president of the New York State Association of Criminal Defense Attorneys. We can take a couple of phone calls. Our time is going by quickly in this really interesting segment that I don't think anybody else has covered really unless you read things like the New York Law Journal.
This is an appointment that Governor Hochul is going to make very shortly. Your questions and comments welcome here. Any defense lawyers or prosecutors, anyone want to call in and say what you see at stake here in terms of either the principles or the potential nominees or equality and justice under the New York State Court of Appeals interpretations of the law. Let me just give out the phone number now, Noah. It's WNYC, 212 433 9692, or tweet @brianlehrer. Noah, go ahead.
Noah Rosenblum: Thanks, Brian. No, I'm sorry. I just wanted since you said no one else was covering this, I just wanted to give a quick plug because it does seem like the advocacy that Alice and I, have been up to is finally getting some attention. There hadn't been any coverage of this, but New York Focus just ran an article on this question and a bunch of State Senators just sent a letter to the governor which was being covered, oh, dear, in one of the other newspapers.
I think just today, there was another letter that was written by a bunch of advocacy organizations, which received some coverage in Spectrum. I think that letter was led by Demand Justice, which is a national group. You're totally right and that's why we're so grateful that you're out here drawing attention to these underappreciated issues. It does seem like other people are following your lead and getting wise to how important this is.
Brian Lehrer: Good. I have no interest in being alone on this. Alice do you have individuals in mind or do already who Hochul is considering? I see retweeted a specific nominees name this morning from Legal Aid Lawyer Tina Luongo.
Alice Fontier: I do Brian, and thank you for asking. I apologize for my tech issues. I could hear and it sounded like Noah continued my answer just as I would have hoped to. There were seven candidates, which is what the statute requires up to seven to be moved forward through the Judicial Nominating Committee. Of those seven, two people have the diversity of experience that we think is so critical to balance this court. Those two people are Corey Stoughton who is currently at the Legal Aid Society here in the city and Tim Murphy who is a federal defender out of Buffalo.
Both of them have a long history and experience in representing the most vulnerable populations in New York. We think that is a critical component to bringing balance to the court. I just want to say that I think I am-- obviously, for listeners, you can't see me and for those of you who don't know me, I am a Black woman who grew up in Upstate New York. I know there are different movements to have diversity of all kinds onto the Court of Appeals.
We really feel that in this appointment, it is critical to balance that experience of what people have because everyone on the Court of Appeals right now comes from either a background of that same government experience or directly from prosecutor's offices. Except for Judge Wilson along with Judge Rivera stands out and is becoming truly the great dissenter on the Court of Appeals. The other thing--
Brian Lehrer: Go ahead; finish the thought, your quick thought.
Alice Fontier: I just want to make one other quick point that we didn't get to before is that one of the reasons we think this is critically important is because particularly for criminal cases, you do not have a right to have your case heard before the Court of Appeals. A single judge has to grant leave and only Judge Wilson and Judge Rivera are regularly granting leave in criminal cases. The number of the total number of cases who actually get to hear their issues before the Court of Appeals is much, much lower than it ever historically has been, which means that the lower courts are the final answer on these really critically important issues that we think there should be Statewide consistency on.
Brian Lehrer: That's why you as a public defender are so interested in this. Manuel in Manhattan, you on WNYC. Hi Manuel.
Manuel: Hi. How are you today?
Brian Lehrer: Good. What's your call to us?
Manuel: I'm calling because I want to just say that in New York State, how judges are made generally across the board is a political appointment, and that there's actually no way for the public to really weigh in on who's a judge. Currently, I have a lawsuit against an assemblyman. The judge seems to be swayed by the fact that the assemblyman will have a say in her moving up judicial career ladder. I think that it's really unfair that people can not really weigh in on who a judge is.
Brian Lehrer: Yes. This pertains to I guess, a lot of the other judges in New York State other than those on the Court of Appeals who are the subject of this conversation because the Court of Appeals justices are appointed by the governor. We've talked about this in the past on the show. I'm not going to dwell on it now because we're running out of time, but this is another big issue. We talked about it in advance of the election we just had.
So many New Yorkers go to the polls and they see judges up for election sometimes with no competition because they are named by the political party bosses. That's a terrible way to name judges all across the system, but that's generally the way it gets done, but that's not the exact same issue we're dealing with here. Let me go to another call real quick. Sarah in Westchester, you're on WNYC. Hi Sarah.
Sarah: Hi. How are you doing?
Brian Lehrer: Good.
Sarah: I just was listening to the last segment with my mom at work. We're listening to your segment with the lawyer who was giving advice on how to deal with some police. What our rights are. What we can and can't say. We both just felt really strongly that it's a little irresponsible in this day and age, not to also mention that, if you're a white man you can say these things to police, but if you are a Black man, maybe you should not be saying all these things to police because the reaction would not be the same.
Unfortunately, I am in a biracial relationship, which is not the unfortunate part. Unfortunately, my husband would not be able to say these things to a policeman or stand up for himself in the same way as my brother would. I just feel like it needs to come with some disclaimer on how to deal with those things.
Brian Lehrer: Great points. Noah, I think this refers to when you were discussing the rights that people have in New York State not to be questioned by police, and to be able to walk away under certain circumstances. Sarah saying, "Well, maybe on paper, but in practice, if you're white, and if you're Black, that applies very differently."
Noah Rosenblum: Sarah is so right. That just highlights the importance of this opening and the nomination that Governor Hochul will make. We need judges on the court who understand the personal experience that the caller referenced. To be clear, part of what you see in the dissent that Judge Wilson and Judge Rivera have written is that appreciation. Having judges who have the line experience that Alice's had, in which you see how the law on paper doesn't operate the same way in every courtroom, that experience could inform the Court of Appeals, in the way that it would issue its rulings.
That's not going to happen if we put just another prosecutor or another middle-of-the-road judge whose experience has been built up by applying the law as it used to be. I couldn't agree more, and I think it's another illustration of why we need judges who understand that actually making the rules.
Brian Lehrer: We're out of time, except for you, Alice to say if listeners care about who Governor Hochul appoints to this opening on the Court of Appeals, how can they best make their voices heard?
Alice Fontier: The fastest and easiest way, a coalition that has created a website called UnCuomo The Court, uncuomothecourt.org. There is a sign-on letter that will go directly, is being sent directly to the governor asking her to start to balance the court by choosing one of the two nominees who really has diversity of experience. I would encourage you to sign it.
Brian Lehrer: I guess if Andrew Cuomo really does run for attorney general next year, as he's dropping hints that he might, I guess one of the issues is going to be what you know I raised before, which is only an allegation at this point, that he appointed these conservative justices or judges last year in support of his own outcomes. If a case regarding his impeachment were to reach the Court of Appeals, if he runs for Attorney General, and somebody wants to make that claim, they're going to have to try to prove it.
NYU Law Professor Noah Rosenblum. He has a new letter to the editor in the New York Law Journal about who the appointees should be by Governor Hochul to the Court of Appeals. Alice Fontier, currently a public defender, and president of the New York State Association of Criminal Defense Attorneys. Thank you so much for joining us.
Alice Fontier: Thank you for having us.
Noah Rosenblum: Thank you, Brian.
Copyright © 2021 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.
New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.