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HOW GEORGE PATAKI TRANSFORMED the NEW YORK STATE COURT of APPEALS Benjamin Pomerance* on N POMERANCE 1/23/2015 10:54 AM WHAT “TOUGH ON CRIME” LOOKS LIKE: HOW GEORGE PATAKI TRANSFORMED THE NEW YORK STATE COURT OF APPEALS Benjamin Pomerance* I. INTRODUCTION On November 1, 1995, Governor George E. Pataki fired a warning shot at the New York State Court of Appeals.1 “They are creating their own rules,” the state’s Chief Executive declared of New York’s highest judicial body.2 “The Court of Appeals has gone too far.”3 Later, he went on to pin his disgust on a specific body of the court’s caselaw: rulings that overturned criminal convictions solely because the defendant was denied one or more protections that Pataki considered mere technicalities.4 “These are just irrational, mindless, procedural safeguards—not for those who are wrongfully charged but for criminals who can get off,” the Governor announced.5 To Pataki, a court comprised of judges chosen solely by his predecessor in the Governor’s Mansion, Mario Cuomo, was simply “coddling” criminals, returning dangerous individuals to the streets of New York to prey on more innocent victims.6 Certain recent decisions drew particular ire from Pataki on that * Benjamin Pomerance, J.D., Albany Law School, B.A., State University of New York at Plattsburgh, serves in Counsel's Office for the New York State Division of Veterans' Affairs. Mr. Pomerance previously served as Executive Editor for Symposium for the Albany Law Review. He also founded and directed the Albany Law School Veteran’s Pro Bono Project, and has taught a class on the First Amendment at Union College. The author wishes to thank Prof. Vincent Bonventre for his intellectual nourishment about all levels of the judicial process, the staff of the Albany Law Review for their ever-meticulous work, and Ron and Doris Pomerance for a lifetime of support and encouragement. All views expressed here are the author's own based on independent research and opinions, and do not necessarily represent the views of the Division of Veterans’ Affairs or any other New York State entity. 1 See John Caher, Pataki Assails Court of Appeals, TIMES UNION (Albany, N.Y.), Nov. 2, 1995, at A1 [hereinafter Pataki Assails Court of Appeals]. 2 Id. (internal quotation marks omitted). 3 Id. (internal quotation marks omitted). 4 Id. 5 Id. (internal quotation marks omitted). 6 Clifford J. Levy, Pataki Proposes Law to Let Prosecutors Appeal Sentences, N.Y. TIMES, Feb. 23, 1996, at A1. 187 POMERANCE 1/23/2015 10:54 AM 188 Albany Law Review [Vol. 78.1 day. People v. O’Doherty,7 a 1987 ruling requiring the prosecution to disclose any confessions or identifications to the defense, was “inflexible.”8 People v. Ranghelle,9 demanding reversal of criminal convictions when a witness’s prior statement was not disclosed, presented a terrible outcome in Pataki’s opinion.10 A set of cases guaranteeing a defendant the right to be present for all criminal proceedings perpetrated a gross misconstruction of the law.11 Not only were the decisions wrong, Pataki argued, but their radical degree of inaccuracy was unprecedented among the entire nation.12 “Over the course of the past decade, we have seen a network of law evolve from the Court of Appeals that is very different from the rest of the country,” he concluded.13 “Many of these rules are only rules in New York state. The other 49 states have a common-sense system of justice.”14 It would not be the last time that Pataki took aim at the Court of Appeals. On multiple subsequent occasions, he vigorously condemned the judges whom the more liberal Cuomo brought to the bench.15 Other high-ranking New York officials soon joined in his fight. New York City Mayor Rudolph Giuliani, for instance, echoed Pataki’s derision toward the court’s decisions in criminal cases.16 7 People v. O’Doherty, 70 N.Y.2d 479, 517 N.E.2d 213, 522 N.Y.S.2d 498 (1987). 8 Pataki Assails Court of Appeals, supra note 1, at A1 (internal quotation marks omitted). 9 People v. Ranghelle, 69 N.Y.2d 56, 503 N.E.2d 1011, 511 N.Y.S.2d 580 (1986). 10 Pataki Assails Court of Appeals, supra note 1, at A1. 11 Id. 12 See id. 13 Id. (internal quotation marks omitted). 14 Id. (internal quotation marks omitted). 15 See, e.g., John Caher, 7 Are Nominated for Opening on Court of Appeals, TIMES UNION (Albany, N.Y.), Nov. 6, 1996, at B2 [hereinafter 7 Are Nominated] (“Pataki repeatedly has characterized the high court as a panel of criminal-coddling liberals, although studies show the Court of Appeals almost always rules in favor of the prosecution.”); James Dao, Pataki Announces First Nomination to Highest Court, N.Y. TIMES, Dec. 4, 1996, at A1 (“The Governor has been a vocal critic of the Court of Appeals, all of whose members were selected by Mr. Cuomo, particularly on criminal justice issues.”); Levy, supra note 6, at A1 (“The Governor last month went after the state’s highest court, the Court of Appeals, introducing legislation that would make it more difficult for it to throw out evidence in criminal cases.”); Richard Pérez-Peña, Pataki Gets a Decision He Wanted on the State’s Highest Court, N.Y. TIMES, July 7, 2006, at B7 (“From the time he took office, Gov. George E. Pataki vowed to remake the state judiciary, calling it too liberal and too eager to usurp elected officials’ powers.”) ; Joel Stashenko, On Law Day, Forces Rally Around Embattled Judiciary, TIMES UNION (Albany, N.Y.), Apr. 29, 1996, at B2 (“Pataki has been the most persistent critic of both the Court of Appeals and of other courts and judges in New York when they’ve ruled in favor of criminal defendants on what the governor has condemned as hypertechnical grounds.”); James Taranto, An Unappealing Court, CITY J. (Spring 1996), http://www.city- journal.org/html/6_2_sndgs10.html. 16 See Clyde Haberman, State Courts Found Guilty by Jury of Peers, N.Y. TIMES, Mar. 8, POMERANCE 1/23/2015 10:54 AM 2014/2015] Pataki’s “Tough on Crime” Court 189 New York State Attorney General Dennis Vacco did the same.17 New York City Police Commissioner William J. Bratton publically pronounced that the Court of Appeals created “phenomenal burdens for our police” and was full of judges who were “living off in Disneyworld somewhere.”18 New Yorkers would be better off, Bratton argued, if the state’s courts marched in lockstep with the United States Supreme Court’s holdings in criminal cases “rather than the screwball system that we have in this state with the screwball Court of Appeals that we have in this state.”19 During that press conference in 1995, however, Pataki made it clear that he did not plan to influence decision making at the Court of Appeals, despite focusing his remarks on their methods of deciding criminal cases.20 Instead, he turned his attention to a different branch of the state’s government.21 “[I]t is ‘not my intention to criticize the Court of Appeals,’” he said. 22 “It is our intention to solve the problem and the way to solve the problem is to pass [new laws].”23 Subsequently, Pataki would attempt to do precisely that, even proposing legislation that would prohibit the Court of Appeals from using the New York State Constitution when deciding whether to suppress evidence obtained by police in criminal investigations.24 Such a measure would have forced the Court of Appeals to follow only federal law, and the United States Supreme Court’s interpretations of that law, in deciding these cases.25 One of Pataki’s spokespeople, Michael McKeon, tried promoting the bill as a way to keep the Court of Appeals from 1996, at B1. 17 Norman A. Olch, Soft on Crime? Not the New York Court of Appeals, N.Y.L.J., May 6, 1996, at 1 (“[T]he State Attorney General, Dennis Vacco, has declared the Court [of Appeals] is intent on coddling dangerous criminals.”). 18 Haberman, supra note 16, at B1 (internal quotation marks omitted); see also John M. Goshko, Accusations of Coddling Criminals Aimed at Two Judges in New York, WASH. POST, Mar. 14, 1996, at A3 (discussing Commissioner Bratton’s comments regarding the Court of Appeals). 19 Haberman, supra note 16, at B1 (internal quotation marks omitted); see Goshko, supra note 18, at A3. 20 Pataki Assails Court of Appeals, supra note 1, at A1. 21 Id. 22 Id. 23 Id. (alteration in original) (internal quotation marks omitted). 24 See Joel Stashenko, ‘Eggs and Tomatoes’ Won’t Sway Judges, TIMES UNION (Albany, N.Y.), Feb. 3, 1996, at B2. 25 See id.; see also Editorial, The Governor’s Attack on the Judges, N.Y. TIMES, Feb. 3, 1996, at 22 (stating that the legislation would prevent the Court of Appeals from departing from United States Supreme Court jurisprudence in deciding unlawful seizure cases). POMERANCE 1/23/2015 10:54 AM 190 Albany Law Review [Vol. 78.1 “making law” in its criminal decisions.26 Unquestionably, however, Pataki’s bill shocked plenty of observers, as it proposed a complete about-face from New York’s deeply rooted traditions of state constitutional independence.27 26 Stashenko, supra note 24, at B2. 27 See, e.g., The Governor’s Attack on the Judges, supra note 25, at 22. The term “state constitutional independence” does not in any way claim that New York’s judiciary sought to sever ties with the federal government of the United States. Rather, it refers to the long- accepted principle that while states cannot offer less protection to a particular party than what the United States Constitution offers, state constitutions can provide more protection than the current federal threshold in a particular area of law.
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