Author:Bova, Matthew
Position:New York Court of Appeals former associate judge Robert S. Smith - Testimonial

Suppose three law clerks were asked to write a dedication for retiring Judge Robert S. Smith of the New York Court of Appeals, a jurist famous for the hypotheticals he poses at oral argument. (And don't say, "That's not this case." As the judge would reply, "It's a hypothetical, and this is the Court of Appeals. We do those here.") So the question is, what would they write?

They could, of course, describe the distinguished legal career that brought him to the court. A native New Yorker raised in New England, in 1968 Judge Smith received an L.L.B, magna cum laude, from Columbia Law School, where he graduated first in his class and was the editor-in-chief of the Columbia Law Review. He practiced law at the New York City firm of Paul, Weiss, Rifkind, Wharton & Garrison from 1968 through 2003, becoming a partner in 1976, and also served as a lecturer-in-law and visiting professor at Columbia Law School. His tenure as individual practitioner and Special Counsel to the firm of Kornstein Veisz Wexler & Pollard was cut short when Governor George E. Pataki nominated him to the Court of Appeals in November 2003. The State Senate confirmed his appointment in January 2004, and he has served with great distinction since then.

During his more than thirty years in private practice before taking the bench, Judge Smith handled a wide variety of complex commercial cases for clients ranging from an insurance industry trade association that objected to the State's diversion of assets from a special fund to cover a budget shortfall, (1) to an airline pilots union that challenged anti-takeover provisions inserted into a collective bargaining agreement as violative of federal law. (2) He tried numerous cases and argued some forty appeals before more than a dozen courts, including the U.S. Supreme Court, six different federal courts of appeals, and the appellate courts of several states, including the court on which he later served.

Although commercial litigation was the focus of Judge Smith's practice, he also volunteered for a community law center and took on numerous pro bono cases, with a focus on death penalty appeals. He won accolades for his handling of two death penalty cases that reached the U.S. Supreme Court. (3) In one of those cases, Penry v. Johnson, he succeeded in overturning a death sentence for a mentally retarded man, arguing that the jury had not been properly instructed to consider evidence regarding the defendant's mental condition. (4) His decades of litigation experience have helped him to serve on the court with great distinction for the past eleven years.

The judge's clerks might also offer their (humble) observations of Judge Smith as a jurist. First, there is the extraordinary amount of preparation he devoted to each and every case the court heard during his tenure. Judge Smith is every bit as interested in the facts as the law and often seemed to have read every page of the record on appeal. No matter how thoroughly a clerk might have read the same record and how exhaustive his or her "bench memo" might have been, the judge invariably picked up on something--part of a witness's testimony, a clause in a contract--that was missed. During an especially busy session, Judge Smith would sometimes joke that he would "take the bench 'cold,' just this once." But he never did--each case was too important to him.

At oral argument, Judge Smith's legendary "hypos" confounded even experienced oral advocates. For example, in one case, the respondent insurer argued that a construction company's excavation on a neighboring lot that undermined a house was not within the policy's coverage for "vandalism" because the company had not acted with malice against the insured homeowner. (5) In response, Judge Smith posed the following hypo:

JUDGE SMITH: Suppose ... suppose a kid digs a hole in your front yard because he likes to dig holes and he knows it might cause your building to cave in, but he doesn't care. He doesn't have anything against you. He just likes to dig holes. And your building caves in. Vandalism?

[RESPONDENT'S COUNSEL]: I honestly don't know. I don't know what that ...

JUDGE SMITH: ... you say excavation is not vandalism. But you can imagine that digging holes might be vandalism?

[RESPONDENT'S COUNSEL]: Digging holes, especially on your property, that goes underneath, I guess, the foundation of your property, if I take the hypothetical ... to I guess its logical consequences, would be something where you're actually doing something to the property.... So I guess it's much closer.

JUDGE SMITH: ... I guess what I'm really saying, isn't "excavation" a word that means digging a hole? (6)

Attorneys who appeared before the court rarely seemed happy to hear the inevitable "Suppose ..." but Judge Smith's hypos were never meant to confound or entrap counsel, or as a mere academic exercise. Their purpose was to test the boundaries of a legal theory and to determine the implications of a particular decision by the court.

Perhaps the best example is the hypo that led Judge Smith to cast the deciding vote against the death penalty in People u. Taylor. (7) Taylor followed the court's decision in People v. LaValle, (8) in which the court struck down a provision of New York's death penalty statute that required the judge in a capital murder trial to inform the jury that the defendant would receive a parole-eligible sentence if it deadlocked. (9) The court reasoned that the deadlock instruction could coerce the jury into deciding in favor of the death penalty, (10) and Judge Smith dissented, arguing that the instruction was "not unconstitutionally coercive." (11) LaValle also held that the statute required some sort of deadlock instruction but deferred to the legislature to rewrite one that worked, leaving the death penalty statute itself unenforceable.

(12) On appeal after LaValle, the People argued in Taylor--and the dissent agreed--that the death penalty could be enforced because the defendant would only be parole-eligible in 125 years, and the jury had been told as much, so there was no possibility of coercion.

Judge Smith based his decision to cast the deciding vote against the death penalty, which he has said was the hardest decision he has had to make under the state constitution, (13) on the following hypo:

No doubt there will be few 70-year-old first degree murderers, but what about 36 year olds? John Taylor was 36 at the time of the ... murders. If he had killed only two people instead of five, he might, in the event of a jury deadlock, have faced a maximum sentence of 50 years. Would that, under the dissent's proposed rule, be enough to make him eligible for the death penalty? What if he were 42? Certainly, on some hypothetical but plausible scenario, Taylor could be executed while, under LaValle, a 20 year old who committed the exact same crime could not be. This does not make sense. (14) That hypo clarified in the judge's mind that the People were arguing that the death penalty could be imposed based on life expectancy, which he concluded, "is not the right way to decide life or death." (15)

After the parties have had their say, Judge Smith brings his extraordinary gifts as a jurist to bear in deciding the case. His views are, of course, shaped by a mastery of and respect for the court's precedents. At the same time, he is deeply concerned with the case before him, asking himself--and his clerks--whether deciding it in a particular way makes sense and reaches a just result. As a consequence, Judge Smith is always willing to question the presumptions on which the parties' arguments are based, and even to revisit the rationales underpinning seemingly well-settled principles of law. For example, in People v. Rosario, (16) the majority found that a prior consistent statement of a child abuse victim made some years after the abuse should not have been admitted at trial because the "prompt outcry" hearsay exception did not apply. (17) In his dissenting/concurring opinion, the judge did not argue that the conclusion was wrong based on the facts of the case. Rather, he traced the origins of the prompt outcry hearsay exception to a nineteenth century view that a sexual assault represented such an "outrage" upon a "virtuous female" that there would be "a natural presumption that at the first suitable opportunity she would make disclosure of it." (18) Judge Smith felt that the prompt outcry requirement for the admissibility of prior consistent statements rested "on shaky ground in the first place," (19) but that it was particularly suspect in a case where a child had been sexually abused. (20) As a result, he proposed a "simple" solution:

When a victim testifies to an act of rape or sexual abuse, every disclosure of the alleged crime by the victim before it was reported to the authorities should be admissible, subject of course to a trial court's normal power to exclude evidence that is repetitive, unnecessarily inflammatory or otherwise prejudicial. To me, the good that such a rule can do is obvious, and I do not see how it can do any harm. (21) In an era in which judges are criticized for their judicial (i.e., political) "activism," Judge Smith is also first and foremost a "lawyer, not [an] ideologue." (22) Perhaps that is a function of his personal evolution from a member of the Stanford Young Democrats (who cast his first vote in a presidential race for Hubert H. Humphrey) to a Republican member of the Federalist Society. More likely, it is the manifestation of his judicial philosophy. As Judge Smith has written:

It is not my view of a judge's function that he should try to advance his personal preferences through the court, although I do not claim to the illusion that a judge's preferences have no impact on his decisions. I may not even say that they should have no impact, but I do not like the idea that a judge should approach either a case or series of cases with an agenda in an attempt to remake the...

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