Guest: Conboy, Kenneth
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THE OPEN MIND
Host: Richard D. Heffner
Guest: Hon. Kenneth Conboy
Title: “Where is Justice Found?”
I’m Richard Heffner, your host on The Open Mind. My guest today has joined me at this table a number of times over the past two decades, and I’ve always introduced him as a careful, highly skilled attorney with a meticulous concern both for public order and for constitutional imperatives and the rights of the accused. Kenneth Conboy has been Manhattan Executive Assistant District Attorney, Deputy New York City Police Commissioner responsible for the department’s legal affairs, the city’s Criminal Justice Coordinator, and its Commissioner of Investigations. Then, until resigning from the federal bench, he was United States District Court Judge in the highly regarded Seventh District of New York. Now Judge Conboy practices at the prestigious law firm of Latham and Watkins, in vogue with any number of high-profile cases and public causes.
Who better then to parse the various issues and equities involved in the recent matter of a federal judge overturning a tainted state-murder conviction in Pennsylvania’s Amish country, and his further prohibition of the state retrial, leading, of course, to angry charges of judicial tyranny and the violation of state’s rights. A federal appeals court has now overturned Judge Stewart Dalzell’s controversial decision that justice had not been done in Pennsylvania, sending the case back to the state. Yet we haven’t heard the last of this strange affair. And the issue of where justice itself can best be found remains very much with us.
And I wonder what former law-enforcement official, former state prosecutor, former federal Judge Kenneth Conboy has to say on this matter. Judge Conboy?
CONBOY: Well, Dick, I think the first thing to say is that what is involved in the ultimate sense here is the Writ of Habeas Corpus. Now, that is the great writ, that is the landmark protector of civil liberties that dates well before the American Revolution. And the Writ of Habeas Corpus is one of the principal reasons why judicial institutions in this country have such wide stature in the world at large. As a historian you remember that a federal judge in New York in Civil War days set aside President Lincoln’s attempts to arrest opponents of the Civil War, indeed, one very famous opponent who was arrested on a soapbox in Union Square. It was that United States judge in New York who, in the face of immense resistance in the populous, and in the face of a tremendously popular and historic presidential administration issued the writ and stopped the abuse of civil rights which was, in fact, established really beyond any question. This writ has been at the center of many controversial matters through the course of the nation’s history and, indeed, recently in the periods prior to the Second World War, the most prominent being the “red scare” during President Wilson’s administration, and the problems associated with thuggery in the attempts to suppress the American Labor Movement.
Now, having said all that, the writ has nonetheless become something of a controversy in later years, and has been the result, in the Supreme Court of the last ten to 15 years, of an attempt to significantly narrow the gate of getting from state prison after a state criminal conviction, into the federal court. There was a point, indeed, part of that period was when I was a federal judge, where there were very large numbers of writs being filed in the federal courts that were utterly groundless. And, as a result, the Congress and the Supreme Court have, over the past 15 years, attempted to establish some kind of parameters for regulating the vast numbers of these writs. Indeed, there were cases of prisoners who have filed five and ten and 15 writs over time. There are prisoners in many penitentiaries whose professional role is to be employed by other prisoners to develop the forms and to cite the appropriate legal catchwords to get the writ safely into a federal forum. And with a docket crisis in the federal system, there has been, I think, quite an appropriate effort to impose some kind of rational and sensible standard under which you do finally get into federal court and have the hearing, which can be protracted and expensive.
Final point on the status of the writ: There are about 10,000 filed annually in the federal courts of the United States. Almost all of these are from convictions obtained by state prosecutors and affirmed by state courts, and usually the highest court of the relevant state. Of the 10,000 writs that are filed, less than one percent are granted. So let’s, first of all, be clear that we are not in danger of having large numbers of convicted state felons let loose by federal judges upon the communities of the country. On the other hand, there is no doubt that prior to the tightening of these regulations there was a debilitating impact upon the efficiency and the quality of justice with respect to all the other litigants who come into federal court and expect to have the attention of federal judges and federal juries to resolve very important civil and legal rights.
So I believe now that the overall balance between access to the writ in the proper case and regulation of vast numbers of groundless writs has been effectively established by the Supreme Court and by the Congress. This particular case is interesting because I think, as Judge Roth stated in her dissent in the Third Circuit Court of Appeals in reviewing the trial judge’s decision here, she made it quite clear that an analysis of the record establishes quite convincingly that this was a tragic miscarriage of justice.
HEFFNER: Yet you say Judge Roth did.
HEFFNER: But she was outvoted.
CONBOY: She was. She was. And she was outvoted on, I think, an entirely predictable analysis of the caselaw and the statutes. You see, what is required now before you can get into federal court is you must have exhausted your state remedies. This is a kind of conditional barrier to getting into federal court. And in the case at hand it was found by the Third Circuit that the petitioner in this case had not, in fact, had a full and final review of all of her claims by the Pennsylvania appellate authorities. She had, in fact, exhausted some of them, but she hadn’t exhausted all of them. So she is now back in the state court and will be carrying her appeal through the Pennsylvania state system, and then presumably at that point, if she doesn’t have a satisfactory outcome, she would then be entitled to come back into the federal system and seek the writ again.
HEFFNER: Of course, she’s not only back in Pennsylvania state courts, she’s back in prison.
CONBOY: She is.
HEFFNER: Having been released from prison on the federal judge’s assertion that this had been a miscarriage of justice.
CONBOY: Well, what the Third Circuit said, and, as I’ve indicated, I think there is a very solid authority for this, and eight members of the Third Circuit ultimately approved the outcome. I think there were four in on bond panel that thought the outcome was wrong. But they fundamentally found that the trial judge did not have jurisdiction to reach the merits, because the procedural requirements had not been met.
Now, let me just say there’s been a lot of political and press commentary about this. Anthony Lewis, for example, in The Times, has written numerous columns about it. The senior senator from Pennsylvania took the floor of the Senate and denounced the outcome, although he was very careful in terms of his remarks about the judge. There has been, of course, extensive coverage all over the country about it. I think there are some observations about the decision itself that might explain some of the commentary in some quarters, the outrage of what the judge did. In reaching his result, the judge did what many people in a republic such as ours become suspicious of when you have, as is indeed the case with federal judges, a mandarin class beyond any kind of scrutiny or oversight. When a federal judge injects gratuitously a kind of scolding or indeed denunciation of parties not before the court, and in any kind of concrete legal sense not implicated in this unfortunate and what I think is clearly established as a miscarriage of justice.
The responsibility for this miscarriage of justice is on the public prosecutor in Lancaster County. There’s no question about that. And he was fully heard, and there was a great deal of litigation about what his assistants had done. But the judge went beyond the prosecutor, and, in a very real sense, chastised the people of the community, Lancaster County, in which this trial was had. He characterized them as having made a Faustian bargain and a rush to judgment. He was, I suppose, as many judges interested in the literary quality of the opinion beyond the legal substance, and he, for example, said, at one point, he asked himself the rhetorical question, “How has it happened that a county like Lancaster County, idealized in Peter Weir’s movie “The Witness,” [sic] how has it come to be more characteristic, shall we say, of the Lynch movie “Blue Velvet?” Now, this is a very, very, in my view, dangerous tack to take in judicial opinions.
HEFFNER: Would you be willing to say it was unseemly rather than dangerous?
CONBOY: Well, I’m not so sure I would call it unseemly, except to the extent that it does draw the federal judiciary and the US courts into a needless exposure, which is that this is an ego exercise by a judge seeking to bring notoriety to himself, as opposed to simply a judge being impelled to the outcome by a careful and systematic review of what the cases and the evidence shows.
HEFFNER: Judge Conboy, if there had not been the rhetoric, if the verbiage were absent, but the federal judge had issued his edict that the state could not try this woman again, would the results have been the same?
CONBOY: Well, I think that there certainly would not have been the extraneous pressures on the subsequent proceedings that were imposed by this avalanche of public scrutiny, particularly among the senators and the congressmen from the State of Pennsylvania, and of course the intense focus of the national media. There are many cases where this has occurred. We, as New Yorkers, probably recall the matter involving the US judge in New York who reversed a drug conviction in Washington Heights and proceeded to scold the police and to make generalized comments, again gratuitous and unnecessary, about the status of law enforcement, indeed, injecting elements from his own background that predated his appointment to the bench.
These kinds of sermonizing self-assertion in the expression of a judicial finding I think are almost always problematic. And if you look at the most respected judges and justices of our highest court over the course of our history, you will find those who are sustained in history decade after decade are those who essentially followed a course of judicious and restrained comments and adherence to the law and the facts, and avoided these extraneous announcements of what abstract morality requires or what one might expect from a non-judicial personage.
HEFFNER: Judge Conboy, are we talking about judicial restraint in terms of edicts and orders and decisions? Or are we talking about words?
CONBOY: Interesting that you mention judicial restraint in that context. Of course, there are, as you imply, two specifications of judicial restraint that are prevalent in the discussion. One is a judicial restraint in the classic sense. US judges have, over the course of our history, been generally defined as either equity judges or law judges. A law judge is a judge who essentially is focused upon the legal ramifications of a problem, and resolves it with an objective, to the extent that that’s possible, on covering of what the law requires. An equity judge feels much freer to, quote, “do justice.” Now, Oliver Wendell Holmes, when he was in the Supreme Court, is famous for having said, “We here in the Supreme Court have very little to do with justice, and everything to do with the law.” And that’s not surprising, because Justice Holmes was a judge who had been trained in the common law, and in his many years in the Massachusetts Supreme Judicial Court had, in fact, developed a theory of contract which was very, very strongly based on legal as opposed to equitable ideas.
Now, of course, in the course of the Sixties and Seventies, equity reigned in the federal courts. We had federal judges running prisons, we had federal judges establishing busing programs to move children all around the geography and the territory of a particular community, we had federal judges looking at voting patterns and asserting executive roles, we had federal judges involved in labor unions. And in the last ten years there has been something of a change in point of view and attitude. And there is a, this doctrine of judicial restraint as opposed to judicial activism has been most effectively recaptured in the criminal justice field. But that’s judicial restraint in the formal and theoretical sense.
What I’m talking about is judicial restraint in the less-formal sense of being careful when you speak as a judge for a distinguished court and a national network of federal courts, that you don’t appear to be partisan, that you don’t appear to be lining up on the side of the, quote, “victims” against the community, or vice versa. In this matter it struck me as astonishing that the judge did, in fact, denounce the community, where there was really very little basis for doing that. It was, I suppose, designed in some way to give the opinion a literary character.
HEFFNER: You say “very little basis” in reality for doing so. You mean very little need to do so? Or very little basis?
CONBOY: I don’t think there is any indication in the record that there were mobs of Amish farmers coming to the courthouse and demanding that this woman be convicted. I am unaware, because the judge certainly didn’t cite it in any of his references to the record, that local newspapers had, in fact, beat the drum for her immediate conviction and incarceration. I don’t think there is anything in the record that supports the notion that there was a Faustian bargain struck, whatever that means. It has a wonderful literary ring to it, but…
HEFFNER: But you and I know what it means. Aren’t you saying then that federal judges need not just clerks but editors?
CONBOY: Absolutely. And I think, when you look at judicial opinions that are shaped more by literary goals or by the desire of the writer to seize upon felicitous phrasing, to have a punchy kind of journalistic impact, to get ink, if you will, to get coverage, this is, to my mind, completely antithetical to judges and to what judges ought to be paying attention to, which is to produce an opinion which is convincing with respect to what the factual record states and what the law requires.
HEFFNER: When Lee Sarokin, one of your former brethren, was here, he spoke willingly about perhaps he had been too literary or journalistic in his opinions, in his, in what he wrote, in explication or explanation of his decisions. But he also indicated that he thought it was incumbent upon the judiciary to explain itself in terms that we the people will understand. How do you deal with that?
CONBOY: I agree that explanation is important, it’s critical. But justification is not. And that’s the difference. Some of these opinions by certain of judges, state and federal — and this is not a problem limited to the judiciary in the United States — they have a ring of a campaign leaflet. All right, the tobacco companies may represent serious social, or not may represent but may be implicated in serious social questions. But to, in effect, go beyond what the factual record requires into the somewhat more peripheral territory of why the judge has rules the way he has, this is something that I think risks the respect that an extraordinarily diversified populus and electorate will have for a group of, again, a mandarin class of judges who are completely beyond any kind of accountability or any kind of constraints in a very practical way. I mean, the judges can say anything they wish. And I do believe that it is very risky, particularly in contentious areas like crime and punishment, responsibility of policemen and prosecutors versus the convicted. I mean, in this case, for example, it is really beyond any contravention that the defendant here did set into motion the events that led to this horrific crime. There’s no question about that. There is also no question that certain of the evidence can be read still on the basis of this record to support her conviction.
HEFFNER: That isn’t the way you read it.
CONBOY: No. I think this judge did an absolutely first-class job at analyzing a complex record. And, as I said, I think his outcome is absolutely convincing, and I do think that he had an extraordinary case. It’s not the conventional habeas corpus case. But, having said that, I think going beyond the finding and concluding, as I’ve indicated, that we had a rogue prosecution, you know, very hot-button words, this invited a reaction from the community, and it invited a reaction from a certain sector in the body politic described by, for example, Anthony Lewis as “the right wing.” I don’t know whether these Amish farmers are right-wing or left-wing, but I know that they were sufficiently offended by the characterization of the judge that they had participated indirectly in a railroading to take their buggies and their quiet manners to an appropriate petition point and sign a petition for the judge’s impeachment.
Now, this kind of reaction, it doesn’t help the judiciary to have that. And it injures, in certain quarters, all federal judges when a particular judge blunders into this kind of spectacular public upheaval. And it was completely unnecessary.
HEFFNER: But let me ask you, in just the couple minutes we have left: Where can one best search for justice? Which court system? Federal or the state, at large, in an overall picture?
CONBOY: I really don’t think it’s a fair question. And it’s the only question you’ve asked me…
HEFFNER: Well, an unfair question… [Laughter]
CONBOY: …in five appearances on this program that I would say is unfair.
There is a belief in certain quarters that the state criminal justice system is inferior to the federal system. I do not share that belief, simply on the ground that I don’t have the empirical evidence to say such a thing. I do believe that prior to the immense improvements in the criminal justice system brought by the Warren court of the 1960s, where the discipline of the prosecutorial machinery was immensely improved through activists, through equity judges, if you will, that there was no question that serious impediments existed in many, many state courts, both in the South and in the North, to the kind of quality criminal-justice jurisprudence that we now have.
Today I would say that because you have a very significant, broad sensitivity to the questions of police conduct, prosecutorial standards, and continuing federal oversight of these state proceedings, that you have very fine, impressive criminal justice system across the country, whether it is state or federal.
There are some who think that the federal system has become somewhat savage. If you were to speak to some of my former colleagues in the southern district you would find them quite appalled at the federal sentencing guidelines which impose, in some cases, staggering sentences on people who are on the margin of drug transactions. You would find the views about a federal system which allows the uncorroborated testimony of an accomplice to convict somebody. You have that in the federal system; you don’t have it in the state system, at least in New York and many of the state courts.
But overall I think the important thing to bear in mind about this is: Let’s not lose sight of the fact that there is an extraordinarily find and courageous judge in the United States Court in Philadelphia who in fact asserted an extraordinarily important value here, and that is: the Writ of Habeas Corpus applies in this case. He was, in my judgment, entirely correct. He found that there was here a demonstration by convincing evidence of actual innocence. And I think that record is there to support it. I agree with Judge Roth. So he has performed an immense service.
Having said all that, I do regret the fact that so much controversy has been stirred up about this because of the collateral comments and remarks in the opinion, which I think obscured the great service that he has done to his community.
HEFFNER: Judge Conboy, thank you so much for joining me again on The Open Mind. And I’m sorry if there was a foul question along with the fair ones.
CONBOY: [Laughter] Thank you, Dick.
HEFFNER: And thanks too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send $4 in check or money order to: The Open Mind, P.O. Box 7977, FDR Station, New York, NY 10150.
Meanwhile, as another old friend used to say, “Good night, and good luck.”
N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.