TBA Law Blog

Posted by: James Thomas on Oct 1, 2014

Journal Issue Date: Oct 2014

Journal Name: October 2014 - Vol. 50, No. 10

By Joel Cohen | American Bar Association | $18.95 | 339 pages | 2014

Joel Cohen is a distinguished New York lawyer who prosecuted with the Organized Crime & Racketeering Section of the U.S. Attorney’s Office for the Eastern District of New York for several years and then went into private practice with the firm of Stroock, Stroock & Lavan LLP, where he specializes in white collar criminal defense. He is a frequent
contributor to the New York Law Journal and the Huffington Post on subjects pertaining to criminal law and legal ethics, but he has also published four books of fiction, including Truth Be Veiled: A Justin Steele Murder Case, which addresses a criminal defense lawyer’s sometimes dilemma in dealing with “the truth.”

Blindfolds Off: Judges On How They Decide is his first book of nonfiction, and it is a sparkling and original model of intellectual curiosity at work, as attested to by the Foreword that longtime Judge (and prolific author) Richard Posner of the Seventh Circuit wrote for the book. Cohen somehow prevailed upon 13 present and former federal district judges (Chief Judge Alex Kozinski of the Ninth Circuit being the sole exception to this description) to submit to recorded (and subsequently transcribed) interviews about how they had decided (and otherwise handled) selected high-profile cases that had reached their dockets (one case each per judge). The 150-year sentence that Judge Denny Chin imposed on Bernie Madoff and the abortive prosecution of the late Sen. Ted Stevens that Judge Emmett Sullivan presided over are but two of the higher-profile examples.

As Cohen explains to his judicial subject at the outset of one of his interviews, “this book is about what judges bring to the bench in deciding cases — from their studies, their experiences, their personal beliefs, their philosophies.”

Not surprisingly, the 13 judges had 13 different perspectives on this subject, all as examined through the prism of a particular (past) case. Some denied in toto that their own experiences, beliefs, and philosophies ever came into play, while others were more forthcoming in acknowledging that they did (in keeping with Cohen’s working premise as he articulates it in both his Preface and Epilogue). In a particularly notable exchange, Judge David Hittner of the Southern District of Texas emphatically refutes the suggestion that a judge is “just an umpire” calling balls and strikes (in contrast to the metaphor that Chief Justice Roberts memorably if unconvincingly employed in his Senate confirmation hearing testimony).

Taking an extreme example to frame his premise that a judge’s personal “baggage” does inevitably play a role in his or her decision-making, Cohen recounts the history of an unidentified but highly regarded late judge who sat on the federal court “somewhere” in New York. The judge had come to the bench a “great liberal,” sympathetic — “maybe even empathetic — to most every criminal defendant who had suffered through a childhood of poverty or poor parentage.” And so it was until the day his Honor was mugged at gunpoint in the park across from the courthouse, “an incident that drastically changed the way he sentenced, particularly when weapons were involved.” (This was obviously before the Guidelines.)

Cohen’s approach to each chapter of his book is threefold. First, he provides some brief biographical information about the judge who is the subject of a given chapter, including some mention of other notable cases that the judge had handled. Second, he succinctly describes the specific case that will be the touchstone for the interview. Third (and most importantly) he sets forth the transcribed “dialogue” itself.

As would be expected, the judges’ answers to Cohen’s questions range from candid to canned, but the dialogues are all engaging. As Judge Posner observes in his Foreword, “Cohen is a skillful and tenacious, though invariably courteous, interviewer.” Sometimes the dialogues would take unexpected turns that would reveal what the judge “really thought” about a given subject, even if it was unrelated to the focus of Cohen’s inquiry. To take but one example, Judge Nancy Gertner (recently retired from the District of Massachusetts bench and now at Harvard Law School) took an opening to observe that unlike the Second and Ninth Circuits, which are “enormously respectful of [their] district judges,” the First Circuit (i.e., her Circuit) “will reverse in decisions which are perfunctory and disrespectful,” which made her “crazy.”

In the penultimate chapter of the book (which proceeds by the alphabetical order of the judges’ names), now-retired Judge Vaughn Walker of San Francisco (the decider of the California “same-sex marriage case” in which former Gore v. Bush adversaries David Boies and Ted Olson teamed up for the plaintiffs) offered up what may be the most self-aware observation in the whole book:

I’m not saying for a moment that one’s background, life’s experience, do not in some fashion or other color your outlook as a judge a perhaps color what you do as a judge. None of us ever escapes our past, our backgrounds and our life’s experiences. But the very job of being a judge is to attempt to divorce yourself from extraneous influences. (Emphasis added.)

Cohen’s book is a mesmerizing, hard-to-put-down read for anyone who routinely toils in the judicial vineyards or is otherwise interested in the “judicial process.” To repeat (in part) Judge Posner’s previously-quoted comment, Cohen is a “skillful and tenacious” interviewer, and he invariably extracts something of interest from all of his interviewees. But as he concludes in his Epilogue, whether his subjects were “always completely ingenuous when their objectivity was on the line” is left for the reader to decide. An element of mystery that makes Cohen’s book all the more compelling.

JAMES G. THOMAS is a partner with Neal & Harwell PLC in Nashville.