Mimesis Law
22 February 2017

Cross: Justice Mark Dwyer, From Wingman To Law Man

December 21, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross former loooong-time Manhattan Appeals Bureau Chief turned Acting Supreme Court Justice, Mark Dwyer.

Q. You got into Princeton at the end of the Summer of ’68, graduated in ’72 and went straight on to Yale Law. In retrospect, those choices weren’t so bad, but what possessed you to go to these very prestigious schools at a time when counter-culture was king? Obsess about the moon landing? Party uncontrollably? Go for a tour of Vietnam? And why law school? Going in, was it your plan to make your mark as a prosecutor (and, maybe, jurist)? Or do these things just . . . happen? When you packed your bags and left for New Haven, where were you really headed?

A. The “why law school” part is the easiest. Dad was a lawyer (and judge; I inherited the Judicial Gene). My mom’s father was a Biglaw lawyer (if that can be said of any lawyer in Erie, Pennsylvania). Three of my uncles were lawyers. Two of my sisters are lawyers. Plus, it’s easier than math.

Growing up in the heartland, I always heard that the Ivy League schools taught you more. We’re talking 1968, for college admission. I assume that what I heard is much  less true now, but it seemed a goal worth shooting for. My dad had chosen Harvard Law, so he was able to understand my view.

The counter-culture was not quite my style, but it could be said to have led to my acceptance at Yale. I applied in 1972, when Yale Law School had just been rocked by a couple of years of protests in what the profs considered “The Dark Ages.” My application was still on hold over spring break, when I went north to check out another school. So I stopped in New Haven to look around there as well.  I knocked on the door of the Dean of Admissions, dressed in a blue sport coat and a button-down shirt, and had hair the same length as now.  He hemmed and hawed, and said, “we haven’t decided.” But when I got back to college about five days later, I found the “fat” envelope waiting for me.

What was my goal? I was going to be a litigator. Not one who takes depositions and settles; I would try criminal cases for somebody.

Q. At Yale, you roomed with a fellow Princeton ’72 alumnus, a kid from New Jersey by the name of Sam Alito. Were you already friends in undergrad? What was it like, living, sharing meals and facing down the horrors of law school with a future SCOTUS justice? Was it enlightening? Did you think your roomie was destined for the big bench? Did you have to teach him how to pronounce Latin correctly? And what did two young law students do in the evenings for, ahem, fun?

A. We knew each other well in college. We were both in the college debate group, ate at the same dining facility, and had many mutual friends. And we were similarly, um, “anal” enough that visitors to our suite considered it a trip to see “the two Felixes.” Sam was much more the diligent student, making no noise, and thus was an ideal roommate.  And it is no surprise that he has done so well — though it is always against the odds to get where he has.

When we discussed matters, he always thought he won the argument. I knew he was always wrong. Those who speak of “sibling rivalry” don’t understand how much more intense “law school roommate rivalry” can be. It was when I heard Sam was going to be a Supreme Court Justice that I resolved to be a Supreme Court Justice too.  Et voila!

Q. After you graduated, you spent a year clerking for Judge Platt, EDNY, and another teaching writing at NYU Law. Now, your judicial opinions are notable not just for being thorough, but for their clear language and straightforward style. Did you ever consider going the Bryan Garner route, building on that early job and committing yourself to improving the state of legal writing? How bad is it, really? Are lawyers too prone to wordiness, boilerplate, bad prose, empty conventional phrases? And what about judges, who have to deal with and produce more writing than anyone? Do you ever wish you were a prosecutor again, so the pain of reading bad motions would end?

A. My one-year NYU job happened only because I didn’t get hired by the Manhattan D.A. on my first try. A law school friend, Nancy Ryan, encouraged me to re-apply and encouraged Mr. Morgenthau to take another look. Being any kind of an academic was of no interest to me.

But: boilerplate motions are silly — except that they are something that overworked defense attorneys have to file to survive. Any unusual point they have in their favor gets lost when they push the buttons to copy what their colleagues said in the last 1000 cases. Prosecutors read those motions too — and respond with boilerplate of their own.  And so do judges.

Beyond that, the simplest thing to improve lawyers’ writing?  Divide those long sentences. It’s easy.

Q. With a resume like yours, you could have gone to work for any white-shoe firm in the country. Instead, you chose to dedicate yourself to public service, signing on with the New York County District Attorney’s Office under the legendary Robert Morgenthau.

Why? A passion for prosecution? Did you see yourself in the well, battling for victims and putting away the bad guys? Were you, like your new boss, a product of your time, committed to prosecution because it was an honorable calling and something the community needed? Do public servants like that exist anymore, in this access- and status-obsessed age?

A. Plenty of public servants like that still exist, and are desperately needed. They fill not only the DAs’ offices, but the defense offices and the court offices as well. By the time I left law school, my ambition was to be (if I may date myself) Perry Mason, but on the other side. I was lucky to have the option of not going to work every day, just to get paid.

Q. Obligatory first trial question. This would be back in 1977, when the City was a radically different animal than it is today. What were the facts? What was it like, standing in the well for the first time? Going in, did you think you knew what you were doing? And if so, did your confidence turn out to be well founded? Looking back now, were you all you thought you were at the time? Do you smile or cringe?

A. In a job interview, Peter Zimroth, then the head of the Appeals Bureau, asked: “gee, it wouldn’t be so bad to start in appeals, would it?” Not being the world’s dumbest interviewee, I said, “gee, that would be great!” I figured my Perry Mason moments were on hold for just a year.

But within a month I realized that appeals was perfect for me, and I settled in for the long term. The law was more attractive to me than all those grubby facts. As to the law, I had much to learn, but a lot of good teachers.

I did try one case later, just for fun. The guy was a pick-pocket. An E felon. I nailed him.

Q. You lasted 33 years at one of the nation’s highest-profile DAs offices, run by a professional with exacting standards. Did you immediately discover you were well-suited to the job, or did it take you some time to adjust to the workplace and the reality of prosecution? Did someone mentor you, help you get oriented, or were you entirely self-taught? Ever think to yourself, “I made the wrong choice?” Secretly wish you’d gone into defense?

In 1985, you became chief of the Appeals Bureau, perhaps the law-wonkiest job at 1 Hogan Place, where you remained for about 25 years. Was it that great? What was the worst thing you ever had to deal with as head of Appeals? Looking back, what impact did your tenure have on New York criminal law?

A. I always tell people that being a judge is the second-best job I’ve ever had. I loved appellate litigation. Every defense brief posed puzzles, factual and legal, and they paid me to play the game of solving puzzles. I was proud of my written work, if I made it the best I could. And oral argument is more fun than watching your favorite football team win the national championship.

My most entertaining was a habeas corpus argument before an en banc Second Circuit panel. I never got closer to the Supreme Court podium than to the chair beside Bob Pitler in two cases, but I had plenty of fun anyway.

Bob and all the senior appeals ADAs were, indeed, mentors.  Every substantial brief was edited by someone senior to the writer, and so you learned on every brief. The worst thing? When you are the bureau chief, you have to spend a lot of your time on administrative matters. But as the bureau chief, you get to pick the most interesting cases to do yourself.

In that regard, whatever impact I’ve had on the law has been as part of a team effort. In a public office with a very large caseload, it can’t work any other way.

Q. New York’s changed a lot since you started out as an ADA. Gone are the days when you had to fear for your life while walking through Central Park. Even relative to the rest of the nation, New York’s crime rate plunged precipitously during the ’90s. To what extent can we attribute the change to the work of prosecutors? What about cops, who, a couple of decades ago, didn’t always act with the integrity of today’s NYPD (think Knapp and Mollen Commissions)? Was it always a picnic, working with them to score convictions?

And has our newfound state of security, something most Millennials take for granted because they’ve never known anything else, blinded us to the importance of what prosecutors do? These days, even the Grey Lady occasionally takes up the “prosecutorial misconduct” refrain. Is this a case of Chesterton’s Fence, where people attack an institution without really understanding why it exists?

A. As a kid from the sticks, I was startled by crime conditions in NYC in the late ’70s and early ’80s. I was mugged one and a half times. I remember having to avoid the last car, the “marijuana car,” on the subway. I like the city better now. My daughter will never know that seedy a place.

Prosecutors worked hard, but we didn’t clean it up. The same, I think, with cops (with whom, as an Appeals ADA, I never worked). Times simply changed, as they always do, and this time far more likely for economic reasons than legal. But it still isn’t “all clear” out there. I see fact patterns involving conduct just as depraved as in the old days — just not as many of them.

I’m sure there has always been prosecutorial misconduct. I’m guessing it was far more prevalent in days gone by than now. Now, though, we are suddenly willing to look at it, as fear of criminals has lessened. And that is, of course, a very positive thing. We all agree that we can’t have privileged lawyers above review, for absolute power still corrupts absolutely. And that goes for judges and defense attorneys as well.

Q. In 2010, there was a major changing of the guard at the New York County DA’s office, the first real shake-up since you joined. Outgoing District Attorney Morgenthau, like you, with over 30 years of service to his credit, retired and was replaced by Cy Vance, who, in addition to refurnishing the office, moved some Morgenthau veterans out of their jobs and replaced them with his own people.

Before Morgenthau retired, you’d spent 25 years at the head of the appeals bureau and, at the end, served as his Chief Assistant. Then three weeks after he left, Governor Paterson nominated you to the Court of Claims. Did that appointment come at a good time? Were you eager to try your hand at judging? Thirty-three years as a prosecutor seems like long enough for anyone– were they? Were you ready to stick it out with a new District Attorney?

A. Essentially by accident, I had to fill a gap and become chief assistant when the boss had about seven months left in his final term. It was obvious that Cy would, quite naturally, bring in his own chief assistant. The boss was then kind enough to recommend me to the governor, and so I wasn’t suddenly out on the street.

And, as you suggest, after all those years I was rather ripe for a new challenge.  Plus, having a mandatory retirement age makes things simpler.  At 70, I will be quite happy to do a little more non-legal reading than I can now. But I would have been quite content to finish as an appellate lawyer.

Q. As a judge, you’ve written a number of decisions that could be interpreted as “defense-friendly.” But really, what you do boils down to looking beyond surface appearances. In People v. Abdul-Akim, you suppressed evidence after the police systematically violated the defendant’s Fourth Amendment rights. In People v. Hazzard, you weren’t afraid to call out a cop when the defense showed he lied about being given consent to search a home. And last year, in People v. Collins, you refused to sign off on junk-science, even though other judges had held their noses and done so.

Defense attorneys like to complain about former prosecutors serving as judges. You, however, have proven to be profoundly committed to deciding cases on the merits and without of bias. So are the kvetchers wrong? You served in an office known for its integrity, and contributed meaningfully to that reputation. Is what you do now an extension of your work ethic from your prosecutor days? And while you may not act on it, do you ever feel the pressure to do your former colleagues a solid?

A. In the DA’s office, I generally advised trial lawyers that if the legal argument passed the giggle test, and they really, really needed to do something, then they should do it (and let the appeals bureau clean up afterwards).

I think some of my former colleagues have been surprised at a few of my rulings, which don’t necessarily endorse steps I would have advised them to take back then. But I have a different client now. I have had no trouble changing gears, and looking at legal questions from a different perspective. A very large number of my judicial colleagues, in Brooklyn and now in Manhattan, were experienced prosecutors. I don’t think they have a problem making neutral decisions. Nor do my colleagues who used to be defense attorneys.

I will confess one thing. When I suppress evidence, I still feel sick to my stomach.

Q. Normally, we use the last question to ask where you might be headed next. But you’re now an Acting New York Supreme Court Justice, meaning you’ve just about reached the apex of the profession, and will suffer mandatory retirement in 2020. So instead, tell us some judicial war stories. Has it been as much fun on the bench as you hoped? How heavy are the shoulders that wear the robe? And what do you think of being told you’re soon to be over the hill? Do you miss the trenches, and ever wish you could go back to the well or the lectern for one last fight?

A. Who knows, maybe I will visit one or two courtroom lecterns after I retire. But as I’ve said, I have no problem with quitting full-time work at 70.

Being a judge is mostly fun. People suddenly have to laugh at my jokes; that never happened to me before. You worry about what your decisions will do to people’s lives, but most of the time, that can’t control your decisions. So you do your job. “Next case.”

War stories? Well, just briefly. I had a Sovereign Citizen defendant who, at a pretrial appearance, asked if he could say something. He told me that the American flag behind the bench was illegal. It had nothing to do with his “sovereign” philosophy. He said that the gold fringe around the flag was permissible only for flags used by the military. I looked it up. He was right. (But the flag is still there.)

I try to treat defendants like the human beings they are. Just talking to them civilly and explaining what is happening is key. Most defendants respond well to that, which makes life in the courtroom much easier. I especially remember one fellow in Brooklyn who started out very angry with the criminal justice system, and very loud about it. By the time I sentenced him, he was happy as a clam and told me he was looking forward to having me as his lawyer when he was released from state prison.

No Comment

Leave a Reply

*

*

POPULAR POSTS