A Jurist's Prudence: A Q&A with Sol Wachtler

Sol Wachtler served as an associate judge of the New York State Court of Appeals from 1973–84 before being appointed chief judge by Gov. Mario Cuomo in 1985, despite the fact that Wachtler was a Republican and the governor a Democrat. An eminently brilliant and hugely influential jurist, Wachtler participated over his nearly 20 years on the Court in more than 11,000 decisions and authored 378 of them, including many of great statewide and national significance. (Chapadeau v. Utica Observer-Dispatch, Inc. is one for which every New York journalist should be particularly thankful, as it set a high bar for proving defamation by a reporter.) In his dual role as chief administrator of the state’s courts, Wachtler implemented important reforms, streamlining the system and successfully pushing for greater diversity among members of the judiciary. Ultimately, however, Wachtler’s career on the bench ended in disgrace, with Wachtler resigning from the Court in 1992 following an arrest stemming from his harassment and threatening of a former lover. He would go on to serve 13 months in prison.

Since his release Wachtler, whose bipolar disorder became public amid his legal ordeal, has become an advocate for the mentally ill. The author of two books, including a prison memoir entitled After the Madness, he is currently a distinguished adjunct professor at Touro Law School. City & State Editor Morgan Pehme asked the man who coined probably the most famous saying ever about grand juries his opinion of the grand jury’s decision not to indict the officer who killed Eric Garner, as well as what he believes should be done to reform the state’s criminal justice system.

The following is an edited transcript.

C&S: Now that Judge Lippman is finishing up his term as chief judge, how would you assess his tenure?

Sol Wachtler: I think he was an excellent chief judge, both as far as his administration is concerned and his management of the Court. Judge Lippman was somewhat different in the way he handled or encouraged dissents or concurring opinions than Chief Judge Kaye and I did, but that is a school of thought, and I think he performed [the job] well.

C&S: You were elected an associate judge, but you were appointed chief judge, after New York did away with electing judges to the Court of Appeals. Do you think the appointment process is a good one?

SW: Yes. I think it’s allowed for something we never could have had, had we continued with the election of judges, and that is diversity, which I think is important in a court. When I first went on the Court there were all white males, and I can recall when we had a vacancy on the Court and Malcolm Wilson had just become governor when Nelson Rockefeller resigned to run for vice president. I persuaded Gov. Wilson to appoint a black member of the Court, because we had never had one, and I thought that was inappropriate for the New York State Court of Appeals. [Wilson] asked me to recommend someone, and I suggested a gentleman named Harold Stevens, who was the presiding justice of the Appellate Division First Department. [Wilson] said, “Would he take it?” and I said, “I’ll talk to him,” and I did. I visited with Harold and I said, trying to persuade him, “You’ll be the first black judge to ever sit on the New York Court of Appeals,” and I remember he said, “The first Negro judge to sit on the New York Court of Appeals.” He said he came from South Carolina and had fought all his life against the appellation of black. At any rate, I said, “Fine, you’ll be the first Negro judge to sit on the New York Court of Appeals,” and he accepted the appointment and became the first African-American to sit on the Court. His contributions were enormous. He gave us insights into matters that we would not have known had we not had a black judge on the Court. Unfortunately, when it came time for him to run for a full term the following November, he was able to get the Republican nomination, of course, because Malcolm Wilson was a Republican; he was a Democrat so he got the Democratic Party’s support; he got the Conservative Party nomination and the Liberal Party nomination. However, he was challenged in a [Democratic] primary by Jacob Fuchsberg, who had never served on the bench, and Fuchsberg beat him, and then went on to be elected as a Court of Appeals judge. So the only opportunity we had to have an African-American judge on the Court for a full term was when Mario Cuomo became governor and when the appointment system was in place, and he appointed Fritz Alexander, who was a fabulous judge and a good friend, the same year he appointed me as chief judge. Then Mario Cuomo went on to appoint the first woman on the Court, Judith Kaye, the first Hispanic on the Court, Carmen Ciparik, and his selections were from both political parties—I was a Republican and Mario was a Democrat—and of course this is not an objective appraisal, but I think it was the best Court that we had had in a long time.

C&S: Were you surprised that the governor would appoint you, as a Republican, to be the chief judge?

SW: Not really. I was extraordinarily pleased and honored, but I wasn’t totally surprised, because I had been on the Court for a dozen years, and I had a very close relationship with [Mario Cuomo] personally. We had joked in prior years that one day we might run against each other for governor and he said, “If I’m elected, I’ll appoint you as chief judge and if you’re elected you’ll appoint me as chief judge,” [laughs] because he had a great reverence for our Court; he had served as a clerk in that Court for Judge Scileppi. I remember when he called me to appoint me, he said, “I’m going to ask you to serve in a position that I always wanted to have.”

C&S: You weren’t just elected to the Court of Appeals. You had also been previously elected as a councilman and a supervisor of the Town of North Hempstead on Long Island. How did having been an elected official shape your perspective on the bench?

SW: That was wonderful experience. Dealing with municipal government and county government, I think, gave me a much broader perspective and understanding of the life of the state. And the election experience itself in those days was a great leveler when you had to meet and interact with the public and the citizenry. I think these are all great steps in your education. As a matter of fact, when I ran for the Court of Appeals, one of the slogans, if you will, that I used was “A Judge Should Be Involved in the Life of the State,” and I think that was experience that I brought to the bench with me.

C&S: Gov. Andrew Cuomo now has the opportunity to essentially remake the Court with so many appointments in his hands. What do you think are the criteria the governor should consider in selecting his nominees?

SW: I think he has to consider geography, background, ethnicity, demographics and experience, as well as knowledge of the law. These all have to be combined in his mind and in the selection process. Of course, he’s had the advantage of screening by experienced people so that he has a limited number of persons to select from, and with his knowledge and abilities, it is hoped that he will make the very best selection.

C&S: In this issue of City & State, my colleague Ashley Hupfl has written an article speculating about whether the governor will appoint a Republican to the Court. The governor said in a recent interview that party is not a factor in his decision process. Is it really irrelevant if a judge is a Democrat or a Republican? Doesn’t it to some degree influence your decisions as a judge what your political leanings are?

SW: No. I think that it’s not what your political leanings are; there are some people who have predilections, latent biases, if you will, leanings—all of these things are part of the characteristics of any person, and they take those things to the bench with them. I remember when we were all hoping so much that Mario Cuomo would appoint a woman to our bench, because we had never had one, and a woman would bring different perspectives, and I recall Judith Kaye was asked, “Do you think gender will play a role in your selection?” And she said, “I take my gender wherever I go.” [laughs] I thought that was a great line. I think we all take something wherever we go. Now, if you ask, “Does it make a difference if you’re a Republican or a Democrat?” No. But if you ask, “Does it make a difference what made them become a Republican or a Democrat?” then the answer is “yes.” So if a person is a far right-leaning Republican, he might not be selected by Gov. Cuomo, not because that person is a Republican, but because that person is a far right-leaning individual.

C&S: You are famous for coining the phrase “a grand jury would indict a ham sandwich, if that's what you wanted.” Does the grand jury’s decision not to indict in the Eric Garner case disprove your adage or does it reveal that the district attorney didn’t really want to indict Officer Pantaleo?

SW: I think it’s very clear whatever the grand jury does is what the prosecutor wants that grand jury to do. It’s as simple as that. If the prosecutor goes through all of the evidence that she or he has, evaluates it, interviews the witnesses, and comes to the conclusion that a person should not be indicted, that district attorney should not bring the case before the grand jury. Even if the district attorney thinks that a person might be guilty, he shouldn’t bring it to the grand jury because he knows that the evidence will not hold up and guilt will not be proven beyond a reasonable doubt. But quite often the prosecutor uses the grand jury as a shield, so that if the district attorney doesn’t want an indictment, but is pressured to bring it before a grand jury, he will bring it before the grand jury, but he will not get an indictment because really he doesn’t want an indictment.

C&S: With the decision not to indict in the Garner case, there has been a great outcry for criminal justice reform. What do you think has to be done in New York State to improve our system?

SW: I think that it’s essential that we do what two-thirds of the states have done and amend our Constitution so that the grand jury exists for only specified purposes, but that it is not a requirement that a grand jury receive every case in which an indictment is sought.

C&S: What do you think about this notion that some politicians and activists are advancing that there should be a special prosecutor to handle cases where police officers kill unarmed civilians?

SW: I think that should be on a case-by-case basis. For instance, let us take the district attorney in the Ferguson case. I think that, having reviewed all of the evidence, he knew that there was no way he could or that he should get a conviction. That police officer, the evidence showed, was defending himself. That being the case, he shouldn’t have brought the case before the grand jury. But if he were pressured politically—as he was—by [Al] Sharpton and even by his own governor, and he doesn’t want to bring it before a grand jury because he doesn’t think there should be an indictment, he should then step aside and have the governor appoint a special prosecutor to handle the case, because he is in a political situation. He has to run in that county, so whatever he does will be somewhat suspect, and to avoid that suspicion, he should get a special prosecutor. I think that if he done that in the Ferguson case, a respected special prosecutor would not have brought the case before the grand jury and would say, “The evidence does not indicate guilt beyond a reasonable doubt,” and that would have been the end of it.

C&S: But isn’t it also politicized if these cases are handed over to the governor or the attorney general’s office to select a special prosecutor?

SW: No, I don’t think so—and this has been proven—unless you have a special prosecutor that is always handing all of a certain kinds of cases—Maurice Nadjari, for example, was appointed to be the special prosecutor to root out police and judicial and criminal justice corruption—he did a terrible job. I was on the Court when his cases would come up. He became an unbridled zealot, and he was ultimately removed by Hugh Carey when he became governor. So I don’t think there should be one special prosecutor for all these cases. It should be on a case-by-case basis, and the governor would appoint someone who would be considered very respected. He would have his own political reasons. He would select someone whom the community would say, “This is a fair, experienced retired jurist,” or what have you, who will be objective in moving forward with this case.

C&S: Are there any decisions that you made over your decades on the bench that you wish you could revisit?

SW: Yes. There are several, actually, but they were mostly cases that were somewhat arcane and would not be of interest—procedural cases. And they were overruled very quickly—by me. [laughs] I was always in the lead, saying, “That was a mistake.” You see, when you decide a case, you’re deciding it on the particular facts of that case and as the law is applied to those facts. And sometimes you have a tendency to decide it too broadly, so that when another case comes up that involves the same principle of law but a slightly different fact pattern, you realize that the rule you established didn’t fit those particular facts, and so you have to either distinguish the case, which is always a very difficult thing to do, or somehow simply say that it’s not applicable.

C&S: Who do you think is the greatest judge of the Court of Appeals that New York has ever had?

SW: I think you’d have to say Benjamin Cardozo—who was, by the way, an elected judge. [laughs]

C&S: How did your personal experience on the other side of the law change your perspective on the justice system?

SW: It has changed my perspective dramatically with respect to matters involving the people whom we incarcerate—and I’m talking about the justice system, not necessarily the law—and the way we treat the mentally ill, both in the courts and the prisons. I can recall meeting with Chief Judge Kaye and urging and doing all I could to contribute to her establishment of the first mental health courts. We established the first one in this state with District Attorney Hynes in Brooklyn, and we now have something like 22 of them that Chief Judge Kaye and Chief Judge Lippman have created, as well as other specialty courts, which I think are extremely important. But the greatest lesson I learned was that we don’t pay close enough attention to the way we treat the mentally ill in the criminal justice system, and as a result we now find that some 17 percent of the people in our prisons are seriously mentally ill—they’re called SMIs—and they don’t really belong in prison. We tore down all of the asylums, and we were supposed to at that time create community facilities of care, and we didn’t. And so these people were left to decompose, and their dysfunctional behavior put them in prison. We’ve established now in New York State veterans’ courts to handle those veterans who suffer from PTSD, combat veterans who were interacting with the criminal justice system and instead of being treated were imprisoned. We want to avoid that. After the Vietnam War we had 200,000 combat veterans in our prisons, mostly all of them on drug crimes. That’s not the way a civilized nation acts. These are the things I learned. In fact, in my book [After the Madness] I speak of the difference between reading about the indignity of a strip search and actually being subject to it. It gives you a different perspective. People like Dick Cheney, who sees nothing wrong with torture, I think that he’s less of an expert than someone like John McCain, who was subject to it.