Cogitations concerning the special prosecutor paradigm: is the cure worse than the disease?

• Author: Bellacosa, Joseph W.
• Position: Tribute to former New York Court of Appeals judge Hugh R. Jones

My tribute to the Honorable Hugh R. Jones starts with a borrowed first word. The title of my exertion begins with "Cogitations." It is the same word Judge Jones so carefully chose as the first word in the title of his masterful Cardozo Lecture in 1979, Cogitations on Appellate Decision-Making. (1) However, after my imitative highest form of compliment, everything else that follows is my much more modest contribution to our jurisprudence on the subject of special and independent prosecutors. (2)

At the outset, please let me say that I am deeply grateful especially to Chief Judge Judith S. Kaye, and also to all my former and present Colleagues on the New York State Court of Appeals, for the privilege of serving with them here, and for allowing me to appear in this sacred space--our secular sanctum sanctorum--this most beautiful courtroom of the Court of Appeals to deliver this lecture in Judge Jones' esteemed name and cherished memory. I am thrilled and honored to do so.

By the way, isn't "Cogitations" a splendid word, not surprisingly, from a fastidious wordsmith and mind like Judge Jones'? It is derived from the Latin verb, cogitare, to think, to ponder, or as a favorite Synonym Finder of mine suggests, to meditate and even to brood over. (3) These seem apt images for what I am about to do right before your very eyes--and ears, too. Judge Jones' exquisite word, therefore, starts me on this somewhat brooding, but I hope constructive, journey concerning this theme. I trust you will find it of some interest.

I also thank the Fund for Modern Courts, the principal sponsor for the last five years, for extending the privilege of this invitation to me. I thank Albany Law School as the co-sponsor, and the institution affording CLE credit. They instructed me, by the way, to speak long enough (fifty minutes) to qualify for the credit. The lecture version was an abridged version, therefore, of what I have prepared for the article to be published, with its necessary and attendant footnotes.

And I particularly thank Kimberly Troisi-Paton, who picked up where she left off as my law clerk in 1998-2000 to assist me in a myriad of excellent ways throughout this project, as my research assistant extraordinaire. (4) This renewed collaboration came about, in part, thanks to a generous grant I sought from my former judicial colleague, retired Supreme Court Justice Joan Marie Durante, whom I acknowledge on behalf of Kim and myself for being so immediately supportive and instinctively collegial.

Now, since this is not an Oscars' event, I must end the litany of thank yous--though my family and dear parents, of beloved memory, do spring to mind and heart in deep gratitude. I will instead now turn to Judge Hugh R. Jones and the subject at hand, my lecture theme: the purpose and dangers of special prosecutors in our criminal justice and jurisprudential universe. As may be surmised from the rhetorical query I pose as my subtitle, it is my personal opinion that, generally and usually, the cure is definitely worse than the disease.

Readers may recall or imagine Judge Jones' portrait up on the side wall of the courtroom he graced at the Court of Appeals for twelve years; it is worthy of a moment of silent tribute. You will see an accurate representation of this fine man and outstanding jurist right there. His portrait reflects many of his fine qualities: intelligence, intellectual discipline, and ramrod rectitude in his erect posture and in his refined habits of mind and conduct. Those of us privileged to work alongside Judge Jones in various capacities over many years came to know how he loved charts and color-coded pens and pencils, denoting the stages of his and the Court's deliberative regimen and decision-making steps. These personal protocols reflected a disciplined analytical progression, thoroughness to a fault--that his colleague and "Chief" for the 1970s era described as the work of a micro-logician. Chief Judge Breitel meant it as a compliment, and Judge Jones loved to laugh hardest of all at the characterization. His wonderful sense of humor was always inner-directed, but that was no surprise because Judge Jones was a very kind and thoughtful man. Former Chief Judge Wachtler, his colleague for over a decade and dear friend, describes him as the "perfect Judge," the finest craftsman and jurist among the many with whom he had the privilege of service and true friendship at the Court of Appeals.

Judge Jones was a Judge of the Court of Appeals for just over one year when I first met him in 1974 as part of the interview process with each of the seven Judges that led to my appointment as Clerk and Counsel to the Court. It was mutual respect at first sight. Mine for him was truly instantaneous, and I am not being presumptuous about earning his respect for me. He later told me so. One might say that our first meeting was the "beginning of a beautiful friendship," with kudos for that memorable phrase to Bogart, as Rick, in Casablanca. (5)

The unparalleled devotion of Judge Jones to the Institution of the Court of Appeals is memorably inspiring. I recall that it gently nudged everyone, Judges and staff alike, also to aspire to excellence and the collegial common good that he so earnestly heralded. He knew our Court's capacity to deliver really good works for people and society. His powers of concentration towards what he saw as the sacred trust of the work of the Court are legendary. He spared no time and showed no patience for the collateral cacophony and distractions that sometimes surrounded or intruded on the sessions of Court. Instead, he enthusiastically loved and methodically enjoyed the pure rhythmic three-step dance of (1) chambers work, (2) conference work, and (3) courtroom work each day of every session. It was an exclusive concentration, and if you doubt my recollection and testimony, go read his Cardozo Cogitations Lecture. (6)

Yet, let me emphasize that this was no automaton, operating with some assembly-line methodology. The charm of the man at work included his humanity, grace, and good humor all laced with an unerring sense of dispassionate perspective and genuine concern for all the people around him--the lawyers, the litigants, the staff, and the general citizenry. His patrician bearing and demeanor exuded a professional classiness that camouflaged the delightfully impish human being within. In a capsule, I could say he had character, and was a character.

Some true anecdotal illustrations help me to make the point. (7) He could shrug off, for example, having someone steal his shoes from the Albany Hotel around the corner, while Court was in session, as "just one of those things." He could announce he was going off to a sound sleep on his own election night before the returns were in on his sharply contested election to the Court of Appeals in 1972, (8) because as he said to his running mate, friend, and soon-to-be colleague, Judge Wachtler, "there's just nothing else we can do now anyway." He could drive from Utica to Manhasset, through a horrendous snowstorm, to spend a day with that dear former colleague at a time of that friend's most dire need of companionship, and think nothing of it because Judge Jones valued true friendship and acted on it selflessly and with compassionate aplomb.

In addition to the adjudicative side of Judge Jones' contributions to New York State's jurisprudential universe, let me also provide a glimpse of this excellent jurist from the administrative side. Through that angle of the prism, what appears is a consistent person--no surprise there, I guess, for a micro-logician!

As few intimates know from privileged personal experience at the marvelous Court of Appeals, its executive work, as distinguished from its primary adjudicative role, is administered through discrete committees of the Judges, appointed by the Chief Judge, and pulled together under collegial leadership skills of the Center Chair Presider at plenary conference sessions of the Court in its other sanctum sanctorum--the conference room upstairs on the second floor of the courthouse. I can still see Judge Jones pushing his own conference cart (as all the Judges do) to and from the conference room; the cart is loaded with case-files and the front end of Judge Jones' (his alone) has an attached holster, armed with his stapler! No one was better or more precisely organized for a day's work.

In part because he came to the Court in 1973, after the 1972 election, as a practicing lawyer and former State Bar President with no prior judicial experience, Judge Jones was appointed and remained for his entire term of judicial office the Chair and sole member of the Court's Bar Relations Committee, with jurisdiction for all such matters and relationships, including the Bar Associations and admission to the Bar. The unfolding of two major administrative issues demonstrates his skill and undeviating dedication to the Institution first. To him, subordination of persona, which is countercultural in our day and age where glorification of personality seems to be paramount, was critical to the well being and proper operation of the Court because the greater common good of the Institution would, thereby, be better served.

For years in the 1970s and early 1980s, the organized Bar pressed the Court to inaugurate, by rule-making, a "Lawyers' Fund for Client Protection," with a biennial lawyers' registration fee. The Court, under Judge Jones' committee tutelage, demurred on the ground that this substantive step must come about by legislation--a demonstration of his respectful core value for the distribution of governmental powers.

In the early 1980s, the Legislature was finally persuaded to act, but the negotiations of details became quite entangled. Suddenly, as so often happens in the legislative process, its session was about to end, when, as Clerk, I received a late night call from the chief legislative counsels of the two Houses--Ken...