Editor's foreword.

AuthorBonventre, Vincent Martin

George Bundy Smith is widely acknowledged to be the most independent and dauntless voice on New York's highest court. His opinions are known by close observers to be consistently the most fair and forthright and wise to issue from the Court of Appeals. Those who have had the privilege to work with him, learn from him, or otherwise spend time in this company know Judge Smith as extraordinarily gentle, generous, gracious, considerate, refined, humble, and yet bold, courageous and principled--in short, an utterly decent and admirable jurist and man. It is no surprise, therefore, that we claim Judge Smith as a member of the Professional Board of State Constitutional Commentary with a superabundance of pride, and that we dedicate this year's issue to him.

Others who are contributing to this dedication have spent considerable time with George Bundy Smith personally. The common denominator in their tributes is his lifelong devotion to principles that remain the highest aspirations of our legal profession and our country--the same principles of justice, equity and equality that have distinguished his opinions at the Court of Appeals. Indeed, even those unfamiliar with Judge Smith on a personal basis can readily glean from his judicial writings the character of this judge and the convictions that guide him. Because dissenting opinions are, in the words of judicial scholar Henry J. Abraham, "preeminently the result of profoundly held conviction[s]," and, as described by Judge Smith's former colleague Richard C. Wesley, "matters of high principle," it is such opinions that might well be the clearest and most dependable source of insight into the very convictions and principles that motivate George Bundy Smith--insight provided by the judge himself. Moreover, only a few of these opinions suffice to get some sense of this man.

Most revealing, perhaps, is the 1999 decision in People v. Tortorici. Judge Smith was the lone dissenter from the Court of Appeals affirmance of a highly questionable conviction, rendered in a highly publicized case, which had received additional statewide attention from the law-and-order governor. Judge Smith stood alone among his colleagues in condemning the conviction of an undisputedly delusional defendant, whose prosecution was permitted by the trial judge without first conducting a competency hearing, despite the protests of the state's own psychiatrist who had found the defendant too irrational to be tried. In the 1997 decision in Johnson v. Pataki, Judge Smith similarly refused to join the majority in another high profile case. This time he refused to lend his name to the court's approval of the pro-death penalty governor's removal of an anti-death penalty district attorney in a potential capital prosecution. In dissent, Judge Smith denounced the governor's action as an unlawful...

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