When a Judge Second-Guesses His Ruling (Long After)

, New York Law Journal

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Joel Cohen
Joel Cohen

Which quarterback hasn't second-guessed his decision to throw a game-altering interception, when he could have simply grounded the ball or fallen on it instead? Indeed, which thinking person hasn't rethought (and even derided), time and time again, important life choices, or even less momentous decisions? It's the very nature of life. Lawyers are people, and they do it too—the great ones, maybe more so.

But what about judges? We seem to think that once a judge puts pen to paper and finally decides a case or issues an order, the decision is final in his own mind—there is no reverie; no compunction; no troubling self-doubt. But, it seems, it isn't always like that. Judges, too, inwardly question themselves—sometimes the short-shrift, the shortsightedness, the personal bias, or even that maybe they missed something important when they decided a case or made a pivotal ruling.1

But what if it's too late: the judge's role in the case is over, the book has been closed, and he now lacks the capacity of his official status to self-correct. He has ruled once and for all, and the case is "upstairs," or completely over! And to this particular "self-reevaluating" judge, a manifest injustice has occurred, and lies, to some extent or even completely, at his doorstep.

Yes, it's true. A guilt-ridden juror who believes, in retrospect, that her guilty vote was mistaken may decide, many do, to contact the defense attorney, the prosecutor or even the judge to try to alter the injustice that continues to harp at her ("I succumbed at crunch time to an avalanche of votes against the defendant.") But, unless she claims that she was somehow tampered with, we know that precious little weight will be given to her "rethinking." The law requires finality,2 and consequently it pays little attention to jurors who can't sleep, remorseful over their guilty votes. Such re-thinking, as it were, is often tossed in the wastebasket with little fanfare by trial and even appellate judges. And that is the law's dictate—both federal and state.

But for judges—and maybe even former judges—who have such second thoughts, the results may sometimes be altogether different. Judges who come to believe that their sentences were, in retrospect, too harsh, may occasionally ask parole boards for leniency or otherwise early release. They may actually go so far as to petition a governor or even the president for clemency for the convicted felon.3

And, sometimes, more direct to this piece, although they no longer have jurisdiction over the case, they employ the majesty of their robes—and, surely, it is indeed their robes—or the judicial station they previously held, to ask either the prosecutor or even a successor judge (in a position to do something about it) to revisit the case. And when they do, soulfully claiming that their decision or vote as a judge or appellate judge had been or may have been mistaken, typically they gain more traction than would mea culpas from one or more jurors4 who had ironically been instructed by the presiding judge at trial that they alone were the judges of the facts. So, it seems—there are judges and judges.

Barbaro's Mea Culpa

The impetus for this discussion is the recent press report that now-retired Brooklyn Supreme Court Justice Frank Barbaro, somewhat guilt-ridden, has come forward to seek to undo what he considers an injustice over his non-jury murder conviction (and sentence of 15 to life) of a then 24- year-old white man, Donald Kagan, in 1999.5 Importantly, the shooting victim was a 22-year-old black man, Wavell Wint.

The cross-racial nature of the altercation, Barbaro now says, was critical to his judgment in the case—for, going back to the 1950s, he had been "socially/politically active in civil rights causes, particularly cases where black men were prosecuted or targeted because of their racial identity."6 Describing a litany of civil rights issues in which he had become an activist or follower—the death sentence of Willie McGee; the death of Yusuf Hawkins; the murders of Medgar Evers and Emmet Till; the arrests and beating of Martin Luther King Jr.'s followers, and then King's assassination—Barbaro came to realize that his experiences and sympathies had prevented him from being impartial when it came to judging, effectively as a single juror, the white-skinned Kagan's self-defense defense.7

Because of the sleepless nights he apparently encountered over his "egregious error," Barbaro asked to review the transcript of the trial.8 Now, 85 years old and recognizing the procedural hoops through which Kagan and his lawyers would have to jump given the lateness of Barbaro's effort to correct his error and the resulting injustice, his affidavit added this noteworthy final paragraph: "I truly hope that the injustice that I caused will be corrected without delay and that we will not see procedural matters and precedents justify the denial of freedom to 'Kagan.'"9 Parenthetically, and putting aside the merits of whether Barbaro did, indeed, misread the self-defense testimony in the Kagan case—a matter on which we have no ability whatsoever to, and do not, opine—the District Attorney's office did raise the very procedural issues to which Barbaro had adverted.10 (We certainly do not quarrel here with that procedural tactic).

Now, Barbaro, a distinguished public servant, is long retired from the bench. Accordingly, the ethical restraints imposed on judges simply do not apply to him11—even though, clearly, given his prior status as judge, an affidavit from him (the procedural problem aside) would certainly carry far more weight than would affidavits from trial jurors who more frequently come forward post-conviction with second thoughts (or second guesses) over their votes to convict. Such juror affidavits, although not treated with disdain, are typically accorded no weight whatsoever as a matter of law, unless, typically, the affidavits assert that extraneous influences (outside the jury room) impacted their votes as jurors. It remains to be seen, however, what the court does with Barbaro's testimony, which supports Kagan's pending motion to set aside his conviction.

Mollen and 'McLaughlin'

But what about when a still-sitting judge who had presided over a case that is no longer before him acts to correct what he perceived to be an injustice? Is there precedent for that? If so, is there something ethically wrong with a judge—for example, a hypothetical Barbaro still sitting on the bench—announcing that he may have erred?

It's not quite the same thing, but in the 1980s the Presiding Justice of the Appellate Division, Second Department, Milton Mollen, was faced with an arguably similar quandary. In People v. McLaughlin,12 Bobby McLaughlin had been tried and convicted of a 1979 murder in the Marine Park section of Brooklyn, largely based on the testimony of a single eyewitness. On appeal, duty bound as is an appellate court reviewing a conviction to consider only the trial record, Mollen voted with his colleagues to affirm the conviction, and the Court of Appeals denied leave to appeal.13 Thus, the Appellate Division's role—and, more to the point, Mollen's role—had been completed, except if a post-conviction motion were to come before the court and could be assigned to other justices.

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