The devil, of course, is always in the details, and the pertinent one is always waiting, to do its damnedest at the most perfect possible moment. As my mother drank coffee in Queens and waited for me to take her to lunch there was one devil waiting to emit a sulphurous “kitchy koo!”. In hindsight I should have been expecting it, although ‘should’ has always been a dodgy word in the courthouse and hindsight is hindsight. I tell mother and son something to this effect as I describe the court’s intention in creating the Guardian ad Litem program. A little history can be found here.
The short version is that the right to counsel is only guaranteed in criminal cases where you face the jeopardy of imprisonment for a year or more if convicted. The right of an indigent to have a court-appointed lawyer was an innovation of our Constitution, but it covered only those threatened with prison time. The Framers, who some hold in the same reverence religious Christians reserve for the authors of the Gospels, did not foresee a time when millions of Americans would live in rented homes that could be taken from them for a variety of infractions, forcing them to join the vast invisible army of the homeless. The law, in its majestic equality, regards as a trifle the right of rich and poor alike to be defended against homelessness, to echo Anatole France.
I described how New York City paid a lot of money to the family of Eleanor Bumpurs, a woman who was killed, in effect, for being mentally ill and owing less than four hundred dollars in subsidized rent for her public housing apartment. She was riddled with bullets at her front door when she reacted to armed NYC officials by raising a large kitchen knife. The tragedy got a lot of media play. The new Housing Court, bastard step-child of the New York City Civil Court, decided that protection was needed for tenants like Ms. Bumpurs. It was an excellent decision. In the early years, lawyers did most of the Guardian ad Litem work. This had the effect of providing capable court-appointed lawyers for indigent, vulnerable tenants facing eviction.
I see the college kid nodding earnestly, like he’s acknowledging this is God’s work. His mother raises her eyebrows and nods encouragingly too. I quickly disabuse them of this God’s work business. I explain that the reason I call it Piss Boy work is because some Housing Court judges, hearing officers really, with jurisdiction only over who has the right to possess disputed parcels of rental property and enforcing certain codes about the conditions in that property, view the court-appointed lawyers on the list who stand in the shoes of tenants as hamstrung losers lacking ambition. Those judges sometimes treat the Guardian ad Litem accordingly.
Any lawyer making a decent living would not put himself on the list, certainly not for more than a case or two a year. Anybody with any ambition would not appear regularly to stand in the filthy, worn shoes of New York City’s most vulnerable tenants, and the canny grifters who sometimes pose as those tenants. What could be said of a subsistence lawyer appearing exclusively in this low and ill-paid role? Whatever one might say about Housing Court judges, most of whom are fine people, each had demonstrated determination and ambition or they would not be on the bench.
Civil Court Judges in New York City are chosen by the Democratic party machine, like in the days of Tammany Hall. A certain political background is required, and making connections of a certain kind. I carried the piss bucket long enough to see several court attorneys, and even a Legal Aid lawyer I’d shot the shit with a few times, suddenly attired in robes, sitting on the bench, smiling graciously as I said “congratulations, your Honor,” the first time I saw them as judges.
Once in a while one of these smiling political appointees would show another side, the dog kicker side mentioned earlier. A judge can’t generally get away with openly kicking an attorney appearing in front of him in his role as an attorney. Attorneys are careful not to cross the line where they can be kicked. There is no such line for the Guardian ad Litem (GAL), one learns belatedly. Cross a line or not, for the GAL a cranky judge gets a free kick. Just part of the game.
So, anyway, Josh and I finish writing up the stipulation. It provides that the landlord will wait thirty days to serve the eviction notice, and will inform the GAL before he does, and the landlord will not contest an Order to Show Cause, meaning more time will automatically be granted, if needed, for APS to take the only action available, while the GAL serves the marshal with papers halting the eviction. The terms were generous, Josh was a decent guy very familiar with the drill.
It was the best deal anyone could hope for in the situation. The aged tenant in question didn’t have much of a leg to stand on. To put it more accurately, he had no leg to stand on. He was an illegal alien who lived in the apartment with several adult family members, all indigent, none of them able to get any kind of public assistance. They owed the landlord something like $13,000 at that point. APS was going to apply for a guardian of the person to figure out how to relocate the old man. The application for the guardian under Article 81 of the New York Mental Hygiene Law….
“You’re shitting me, there’s a New York State Mental Hygiene Law?” said the woman.
I shit you not, ma’am, a clean mind is a good mind in New York State. Anyway, the Article 81 filing in Supreme Court would stay the eviction proceeding in Housing Court for up to a year, put it in a deep freeze, while they determined if the old man was legally incapacitated under New York State law, appointed a guardian of the person and that person, or agency, figured out the details of the impossible. Josh was consenting to all this instead of pressing the judge to get justice for his client the landlord. It was 11:15 and my mother was waiting for me in Queens. I was glad to be almost done in court, it was well-worth agreeing to petition the court for more time for the inept APS to act.
Except that on this early summer day the young judge in this particular courtroom, an ambitious former court attorney who had jumped several more senior candidates on the list, was performing for several law students who were with him on the bench. The stip Josh and I had signed gave him the chance to demonstrate how a judge went about his business in a GAL case. His court attorney informed Josh and me that the judge intended to allocute the stip. Meaning we’d have to wait to be called so he could read aloud on the record, allocute, what we had written and signed.
Generally allocution is only done in a case where one party needs the agreement explained to them by the judge so that everybody’s ass is legally covered against the charge that the unrepresented party had been tricked by the other party’s lawyer into signing a deal they did not understand, an agreement against their best interests. No matter that this agreement was written and signed by two attorneys, and that it was the only possible deal, outside of immediate eviction, the judge was doing it the way it should, technically, be done, since one of the lawyers was playing the part of a non-lawyer. The Court Attorney asked us to take a seat and brought the file up to the judge.
I later had the occasion to learn that this young judge had been admitted to practice law the same day that I had been, April Fool’s Day eight or nine years earlier. We’d taken the oath in unison in the impressive old Appellate courthouse off Madison Avenue, then headed in opposite directions, him to court attorney and judge, me the other way.
I was also informed that he’d been one of “Shelly’s boys”, a protege or personal friend of Sheldon Silver, then Speaker of the New York Assembly, a powerful New York Democrat who a few years later would fall steeply from his powerful position as kingmaker in New York State politics and wind up disbarred for his multiple felony convictions. As far as I know the disgraced Silver is still free on bail waiting to appeal his long jail sentence, as befits a powerful corrupt man convicted of using his position to steal millions. Silver’s fall was a dramatic one, well worth a footnote .
All I knew at the time was that this seemingly mild-mannered and bespectacled young judge was seemingly mild-mannered and wore glasses. I had no idea, as I sat next to Josh on that long wooden bench, how much shit was poised to hit the fan, nor how hard and far flung that shit would spatter for the humble Piss Boy.
(stay tuned for part 3)
 from Wikipedia:
Silver’s trial lasted for much of November 2015. On November 30, 2015, a unanimous jury found Silver guilty on all seven counts, triggering automatic expulsion from the Assembly. The New York Supreme Court, Appellate Division, which handles judicial and attorney misconduct, affirmed his automatic disbarment for felony conviction.
On May 3, 2016, federal judge Valerie E. Caproni of the United States District Court for the Southern District of New York sentenced Silver to 12 years in jail, and ordered him to pay $5.3 million in ill-gotten gains and $1.75 million in additional fines. Silver received two prison terms: 12 years for six criminal counts against him and 10 years on the seventh, to run concurrently. As of January 2017, he remained free on bail, pending an appeal based on the U.S. Supreme Court‘s decision in McDonnell v. United States that reversed the corruption conviction of a former Virginia Governor.
Silver and his wife Rosa, a former special needs schoolteacher, have four adult children. According to court papers unsealed during the sentencing phase of his trial, Silver was alleged to have had two extra-marital affairs, both of which were connected to his Albany position.
Two weeks after Silver’s criminal conviction, his son-in-law Marcello Trebitsch was sentenced to prison for a separate multimillion-dollar crime, also prosecuted by Bharara’s office.