Monday, November 18, 2013

George Bundy Smith, New York Court of Appeals, 1992–2006

Patterns in Criminal Justice

By Robert C. McIver
Robert McIver, a third year law student at Albany Law School, graduated cum laude from Le Moyne College in 2010 where he majored in History and Political Science and played Men's Lacrosse.  He has served as a teaching assistant to Professors Deutsch and Heverly.  Currently he is the Executive Editor for State Constitutional Commentary with the Albany Law Review and is a research assistant for Professor Connors.
He prepared this essay for Prof. Bonventre's State Constitutional Adjudication Seminar, Spring 2013.

             In analyzing several of George Bundy Smith’s opinions,[*] I have recognized patterns in how he viewed the criminal justice system and how he interpreted state and federal constitutional questions.  Overall, I found that Judge Smith, consistent with Herbert Packer's due process model,[1] recognized the importance of fair procedural methods. 

In People v. Benevento,[2] the Court of Appeals analyzed the right to guaranteed effective assistance of counsel in New York State.  Judge Smith wrote for a unanimous court, holding that New York State did not review attorney error using the federal test articulated in Strickland v. Washington.[3]  Rather than focusing on whether confidence in the outcome of the trial was potentially undermined, as the U.S. Supreme Court did in Strickland, Judge Smith’s opinion held that attorney error would depend on whether the defendant was afforded “meaningful representation.”[4]  

Judge Smith wrote, “[t]he safeguards provided under the Constitution must be applied in all cases to be effective and, for that reason, ‘our legal system is concerned as much with the integrity of the judicial process as with the issue of guilt or innocence.’”[5]  This opinion is indicative of Judge Smith’s due process oriented views of the criminal justice system in that it demonstrates his potential willingness to order a new trial despite an apparent awareness of factual guilt.[6]  His focus was almost entirely on ensuring that the process is fair.

            Similarly, in People v. Calabria,[7] Judge Smith focused on the overall process of a fair trial.[8]  In this case, the Court reviewed prosecutorial misconduct,[9] and again, Judge Smith found reversible error and remanded for a new trial despite the trial court’s curative instructions to the jury.[10]

            In light of his due process oriented holdings, it may be tempting to view Judge Smith as having been simply pro-defendant.  However, throughout his tenure on the Court, Judge Smith developed a complex jurisprudence which cannot be properly analyzed using sweeping generalizations.  In In re Muhammad F.,[11] Judge Smith filed a lone dissent in which he opined that a police tactic of stopping every third taxi cab did not violate the New York State Constitution.[12]  

In his dissent, Judge Smith cited almost exclusively to the New York State Constitution and New York precedent,[13]  This is noteworthy because the majority relied heavily on federal precedent in determining whether the police officers’ interference was arbitrary and therefore potentially led to an illegal seizure.[14]

            Overall, it is difficult to determine exactly what approach Judge Smith took when analyzing whether additional rights exist under the State Constitution.  In In re Muhammad F., Judge Smith looked mostly at state constitutional precedent.  However, in People v. Robinson,[15] the Judge seemed to employ a dual approach when interpreting search and seizure rights.[16]

            In Robinson, Judge Smith analyzed search and seizure precedent on both the federal and state levels.[17]  The issue presented in these consolidated cases[18] was “whether a police officer who has probable cause to believe a driver has committed a traffic infraction violates article I, §12 of the New York State Constitution when the officer, whose primary motivation is to conduct another investigation, stops the vehicle.”[19]  In analyzing the defendants’ rights, Judge Smith noted federal and state court precedents, and ultimately adopted the federal rationale as articulated in Whren v. United States.[20]  

            However, in adopting the federal analysis, Judge Smith was careful to point out that the Court of Appeals “has not hesitated to expand the rights of New York citizens beyond those required by the U.S. Constitution when a longstanding New York interest was involved.”[21]  The Court also included an appendix showing the forty state courts that had adopted the Whren rationale either explicitly or implicitly.[22]  Ultimately, Judge Smith analyzed the rights under both constitutions and found there were no protections afforded under either.

            Judge Smith also analyzed both federal and state constitutional rights in the context of the death penalty in New York State.  In People v. LaValle,[23] Judge Smith examined whether a criminal procedure law regarding jury instructions and juror gridlock[24] violated article I, section 6 of the New York State Constitution.[25]  

            Judge Smith found no protections under the U.S. Constitution regarding such instructions in death penalty cases. However, he found that the jury instructions “d[id] not satisfy the heightened standard of reliability required by our State Constitution.”[26] 

Ultimately, I believe that Judge Smith employed a dual approach and considered the rights under both the State and Federal Constitutions before writing an opinion. 

[*] Although the focus of this writing is on George Bundy Smith’s opinions and views, I feel compelled to acknowledge his involvement in the Freedom Rides as well as his acceptance to Yale University (Smith was one of only four African Americans accepted in a class of 1,000).  See Justices of the Court, Appellate Division First Department, (last visited Oct. 22,  2013).

[1] Herbert L. Packer, Two Models of the Criminal Process, 113 U. Penn. L. Rev. 1 
(1964) (contrasting the crime control and due process models of criminal justice).

[2] People v. Benevento, 697 N.E.2d 584 (N.Y. 1998).

[3] Strickland v. Washington, 466 U.S. 668 (1984); Benevento, 697 N.E.2d at 587.

[4] Benevento, 697 N.E.2d at 588.

[5] Id.

[6] It is worth noting that the Court held that the defendant in Benevento received effective assistance of counsel under the New York State Baldi test.  Benevento, 697 N.E.2d at 588–89.

[7] People v. Calabria, 727 N.E.2d 1245 (N.Y. 2000).

[8] Id. at 1247.

[9] Id. at 1246–47. The prosecution made constant references to picture lineup identifications in violation of a pre-trial ruling.

[10] Id. at 1248.

[11] 722 N.E.2d 45 (N.Y. 1999).

[12] Id. at 52–55.

[13] Id.  Judge Smith did include a paragraph discussing a federal precedent as interpreted by the Court of Appeals in People v. John BB., but does not discuss the Brown v. Texas test used by the majority.  People v. John BB., 438 N.E.2d 864 (N.Y. 1999).

[14] Muhammad F., 722 N.E.2d at 47–48.

[15] People v. Robinson, 767 N.E.2d 638 (N.Y. 2001).

[16] In Robinson, the analysis of rights under the U.S. Constitutional was brief; the Court was deciding whether to adopt the federal standard, so there was no question as to whether federal rights were being violated.

[17] Robinson, 767 N.E.2d at 641–45.

[18] Three separate cases were consolidated on appeal.

[19] Robinson, 767 N.E.2d at 640.

[20] 517 U.S. 806 (1996) (holding that the officers’ decision to stop the automobile was reasonable and therefore not a violation of the Fourth Amendment, where probable cause supported their belief of a traffic violation).

[21] Robinson, 767 N.E.2d at 642 (citing People v. Scott, 593 N.E.2d 1328 (N.Y. 1992)).

[22] Robinson, 767 N.E.2d at 642, app. 1.

[23] People v. LaValle, 817 N.E.2d 341 (N.Y. 2004).

[24] The principle issue with the statutory instruction was that in the event the jury did not reach a unanimous vote on either life imprisonment without parole or death, the default penalty was life with the possibility of parole.  The Court was concerned about jury members being coerced into voting for the death penalty out of fear that the defendant would receive a lesser penalty should they cause a split vote.

[25] LaValle, 817 N.E.2d at 344.

[26] Id. at 365.