Courts and Law Brooklyn Boro

Chuck Otey’s Pro Bono Barrister for March 27

March 27, 2017 By Charles F. Otey, Esq Brooklyn Daily Eagle
Justice Miriam Cyrulnik. Eagle file photo by Mario Belluomo
Justice Miriam Cyrulnik. Eagle file photo by Mario Belluomo
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Kings Inn to Discuss How a Civil Rights Issue Became a Controlling Precedent, Starting With Batson v. Kentucky

Tomorrow night, the Kings County American Inn of Court, led by President Justice Miriam Cyrulnik, will tackle one of the thorniest civil rights/legal issues confronting the trial bar: peremptory jury challenges based — or not — on race or color as possible violations of the Due Process Clause of the Fifth Amendment.

In so doing, a respected Inn panel co-chaired by Justice Carl Landicino, U.S. District Court Judge William Kuntz and skilled thespian David Chidekel will review the dramatic changes in the jury selection process following the historic Batson v. Kentucky decision made in the late 1980s.

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The balance of the panel is composed of Serena Blanchard, Hon. Joy Campanelli, Sheridan Chu, Bill Gentile, Andrea Hill, Judy Mock, Court Administrator Charles Small, Michael Yagadrov and this writer, who’s been asked to speak (very) briefly on what it was like to select a jury before the Batson case revolutionized the process back in 1986.

Not much actual research was required on my part. It seems like only yesterday, and veteran trial lawyers Ross D’Apice, Jim Ross, Arthur Hill, John Bonina Jr., Andrea Hill, Tom Moore, Davy Perlman, Andy Fallek, Sandy Rubenstein, two future justices — Hon. Karen Rothenberg and Hon. Marsha Steinhardt — and many more, can probably recall the potential ease with which black jurors could be excused, with or without cause, when the clear intention of the challenging  attorney was to prevent the impaneling of a juror perhaps leaning in favor of a certain black litigant.

Attorneys who selected juries in the 1970s and ’80s believed that they could easily, without cause, eliminate potential jurists on the basis of race and do so with veritable impunity.

* * *

“I Know What You’re Doing and I Don’t Like it!”

In the 1980s, I often represented Allstate (known affectionately as “Mother” by the “good hands” crew of Arthur Reba and Stan Ladinski who presided over their carrier’s busy calendar at 141 Livingston St.). As a defendant’s counsel, it was always made clear that we were to eliminate any juror who, due to race, might favor an injured plaintiff.

One particular case stands out. In selecting in an auto-accident matter assigned by Ladinski at 141 Livingston St., I had used all peremptory challenges to remove all jurors of color because the plaintiff was black and the defendant was not, without a murmur from the plaintiff’s attorney.

The plaintiff’s counsel, who sat powerless and stoic during this challenging process, finally asked that we “step outside” to discuss the removal of minority jurors. Here, in an exact and unforgettable quote, is what he said: “I know what you’re doing and I don’t like it!”

This was indeed a unique and puzzling argument put forth by opposing counsel, and I discussed it later with Stan and Arthur after the case was settled for less than the plaintiff demanded. To their credit, both Allstate lawyers acknowledged that it was an unpleasant, i.e. unfair, situation. Yet, echoing the accepted realities of the day, one of them said, “It’s not our problem.”

We all believed that opposing counsel should have become irate, even righteously indignant, because it was clear that jurors of color were being unceremoniously excused and that he was remiss in failing to insist we take the issue before the judge in charge. He didn’t.

Would the judge in charge have done something — perhaps admonishing the defendant’s counsel, disbanding the panel and even ordering a new group of jurors be assembled and voir dire started all over? Maybe, maybe not.

* * *

Attorney Gammerman Would Have Raised Holy Hell

Each judge had his or her point of view in such situations, and the “originalists” would doubtless have ruled in the defendant’s favor.

Before coming to Brooklyn to help Allstate protect its insured clients, I had the good fortune to spend several years as a “plaintiff,” trying cases under the aegis of a highly respected Manhattan trial lawyer: Ira Gammerman. Yes, that Ira Gammerman, the lawyer who later gained legendary status as a multitasking Manhattan Supreme Court justice.  

While he had tried almost 200 plaintiffs’ cases as a private attorney, he nevertheless would regularly insist both attorneys be ready for trial under all circumstances, sometimes on a moment’s notice and even when one of them had already selected a jury in another county and was on call to go ahead with that trial.

His judicial reply to these plaints: “Select or settle!” In addition, the energetic Justice Gammerman frequently would “try” two (civil) cases at the same time, with different juries, of course.

* * *

Justice Gammerman Was Active in Civil Rights Causes

What many trial attorneys such as Jim McCarthy may not know is that Justice Gammerman, who later served as a JHO, was an authentic      civil rights activist who vigorously opposed the war in Vietnam and supported some very liberal causes.

He represented labor unions composed of railroad bar car attendants and Pullman Car porters, most of whom were black and were still, at that time, subject to the whimsies and prejudices of Penn Central (later Amtrak) management.

As head of the Bromsen, Gammerman, Altier & Wayne — our 34th Street firm into the late ’70s — attorney Gammerman stressed that it was vital when trying a personal injury case on behalf of a union member to make sure we ended up with two or three minority members on our panel. Were we depriving white litigants of their equal protection? We didn’t think so, but we’re glad the pre-Batson days are behind us. This was years before Batson v. Kentucky was decided by the U.S. Supreme Court in 1986.

Tomorrow night, starting with an initial delivery by Justice Landicino, the above-named Inn team will then take its audience through the subsequent years, citing “Batson progeny” and the different ways “Batson” is deployed in civil and criminal, state and federal courts.

Several of Kings County’s jurists serve as officers or masters of the Kings Inn, including, but not limited to, Appellate Division Justice Sylvia Hinds-Radix, Justice Ellen Spodek, Justice Marsha Steinhardt and Justice Sylvia Ash. The Inn administrator is Lucy DiSalvo, who assures us that a delicious gourmet buffet will be provided at 5:30 p.m. before the meeting. Jeff Feldman serves as executive director.

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PRO BONO BARRISTER is a weekly column dedicated to telling about the good that lawyers do. Send your comments or suggestions to this writer care of this newspaper or to [email protected].

 


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