JUDGE JENNY RIVERA: THE LONE DISSENTER FOR THE ACCUSED.

• Author: Riegel, Linnea E.
• Position: New York Court of Appeals

1. BEFORE THE BENCH

   Judge Jenny Rivera had an untraditional start to her career on the bench. She was not a judge first, she did not work in the judiciary, she was not a practicing attorney, she did not work in a law firm, she was not a government lawyer, she did not work in the district attorney's office, legislature, or executive branch, and she was not in any other line of work traditional for a New York Court of Appeals Judge. (2) After she graduated from New York University School of Law in 1985, Judge Rivera clerked for the Second Circuit Court of Appeals Pro Se Law Clerk's office, as well as for then Southern District of New York Court Judge Sonia Sotomayor. (3) She was an attorney for the Legal Aid Society and an associate counsel for the Puerto Rican Legal Defense and Education Fund. (4) She served as an administrative law judge for the New York State Division for Human Rights and was on the New York City Commission on Human Rights. (5) In addition to her work in the outside legal field, she worked in legal academia as an Assistant Professor of Law at Suffolk University Law School and as a Professor at City University of New York Law School (CUNY Law). (6) While at CUNY Law, Judge Rivera founded the CUNY School of Law's Center on Latino and Latina Rights and Equality (CLORE), and she taught classes on Latina/os and the Law and Paradigmatic Challenges to Race-Based Discrimination Theory and Practice. (7) Rivera also published several legal articles including Translating Equality: Language, Law and Poetry; An Equal Protection Standard for National Origin Subclassifications; and The Politics of Invisibility, among many others. (8) In short, prior to her confirmation as a judge on the Court of Appeals, Jenny Rivera dedicated her career to social justice, civil rights issues and equal protection for women and Latina/os.

   As a lawyer and an academic, her fight for social equality and justice was lauded, but there was concern in the legal community that those qualities, and her lack of judicial experience, would interfere with her work as a judge. (9) Those who opposed her nomination, namely the Judiciary Committee, feared that she would be a judicial activist, using her role as a judge to promote the social welfare of Latinos/as and women. (10) Others who opposed her nomination thought Rivera's legal experience was too narrow, her writing confusing and unclear, and her lack of judicial experience impractical for the high court. (11) On the other hand, many applauded her nomination and felt that her work in public service and knowledge of the problems facing immigrants, working families, victims of discrimination, etc. would be a much needed addition to the court. (12) Despite the skepticism and lack of support from the Judiciary Committee, Jenny Rivera's nomination was confirmed by an overwhelming voice vote on February 11, 2013. (13)

2. THE PRO-ACCUSED JUDGE

   After her confirmation, the question still loomed--what type of judge would Jenny Rivera be? Would she be an "activist willing to bend the law to accomplish her goals, a restrained judge reluctant to meddle in the affairs of the other branches of government, a judge prone to dissents, or some combination of the various traits, habits and approaches that make up a judicial philosophy"? (14) After five years on the bench, Judge Rivera is not known as a judicial activist, a judge for women, or the judge for Latina/os. She has become the judge for the accused. The record she has compiled is

   [n]early 3 times as pro-accused as that of the Court as a whole... it might be argued that Judge Rivera's record is extreme, that her tendencies lean so far in favor of the rights of the accused, that her votes skew the data... [h]owever, her pro-accused record is more than counterbalanced by that of two of her colleagues, Judge Michael Garcia and Eugene Pigott, at the other end of the court's spectrum. (15) In fact, her first written opinion with the Court of Appeals was a pro-accused majority in People u. Griffin. (16)

   In Griffin, the Court of Appeals affirmed an order from the Appellate Division stating that the trial court improperly discharged the defendant's counsel. (17) The Defendant's attorney requested a change in date for the trial so that Legal Aid's new attorney had time to prepare for the trial. (18) The trial court denied this request even though the court had given the People more time when requested. (19) Legal Aid then requested for an adjournment, which was rejected, and the court relieved Legal Aid of representing the Defendant. (20) The court appointed an 18-B counsel for the Defendant, and the Defendant was eventually found guilty and sentenced to two concurrent terms of twenty years to life. (21) The Appellate Division reversed the Supreme Court's decision stating, "discharge of defendant's counsel without consulting defendant was an abuse of discretion and interfered with defendant's right to counsel." (22) In her first written majority, Judge Rivera stated,

   the right to counsel is so deeply intertwined with the integrity of the process in Supreme Court that defendant's guilty plea is no bar to appellate review. A claim that removal of counsel was part of the appellatecourt's disparate, unjustifiable treatment of defense counsel goes to the fundamental fairness of our system of justice. While the right to counsel of choice is qualified, and may cede, under certain circumstances, to concerns of the efficient administration of the criminal justice system, we have made clear that courts cannot arbitrarily interfere with the attorney-client relationship, and interference with that relationship for purpose of case management is not without limits, and is subject to scrutiny. (23) Rivera's first swing on the court has become her favorite swing as a Judge. She continuously and tirelessly writes opinions, often dissents, to ensure that they accused have their day in court and the full weight of the criminal justice system.

3. THE LONE DISSENTER

   While her first written majority opinion was pro-accused, Judge Rivera is often the lone dissenter in pro-accused cases. (24) As the voice of the pro-accused, her goal in each case is to ensure that the Court is treating the accused justly. She often finds that the actions of the lower court did not give the defendant a fair trial, such as the court not properly explaining procedures to the defendant, (25) violating the right to appeal, (26) and more often than not, violating the defendants' constitutional rights. (27) Judge Rivera has seemingly made it her goal to ensure that the accused are given the same rights in court as every other person who enters the courtroom. (28)

   Her first written dissent on the court was as a lone dissenter in People v. Monk, where she determined that the accused had a constitutional right to understand his plea deal. (29) In Monk, the defendant agreed to a 10-year sentence with a mandatory five-year post release supervision (PRS) period. (30) When the Defendant agreed to this plea, he was not aware that the PRS could result in an additional five years of incarceration...