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January/1/2013

A Little History Couldn’t Hurt (Part I & Part II)

A LITTLE HISTORY COULDN’T HURT – Part 1 & Part II
Michael A. Feit, Esq.

383 Clinton Avenue

Albany, New York 12206

(518) 434-2306
FeitEsq@aol.com


(Part One From the Nov/Dec 2012 Newsletter)  (Part Two From the January 2013 Newsletter)


For years, I’ve encouraged young lawyers to go to garage sales to hone their plea bargaining skills.  No CLE credit, but you get to see or acquire a bit of the past.  Last month at an estate sale in Loudonville, rifling through some old papers in an upstairs bedroom, I realized that what I had in my hands had belonged to Martin Schenk, who served as the Albany County Court Judge from 1950 through 1972.

Among the correspondence were letters written to the Judge from Erastus Corning II, General Omar Bradley, and Howard Hunt.  Saving these pieces of history from a dumpster and a landfill not suspected to be Jimmy Hoffa’s final resting place was a no-brainer.  Sherry Carnevale, owner of Estate Resolution, agreed to donate the papers to the Bar Association.  Barbara Davis, Executive Director of ACBA, encouraged me to share my recollections of Judge Schenk with readers of this newsletter.

The first time I met the Judge was in early 1970, soon after I left my position as Chief of the Bureau of Appeals in the Albany County District Attorney’s Office.  For historians, my initial foray as a criminal defense attorney could hardly have been less significant.  A conference in the Judge’s chambers on a violation of probation charge ended in favor of my client when a letter I’d asked him to get from work as a dishwasher at Child’s Hospital caused Judge Schenk to exercise judicial discretion by declaring: “I’m on the Board at Child’s.  If they like him, that’s good enough for me.”

My 17-year-old client was waiting for the news out in the hallway.  I didn’t pretend that I knew the Judge had a connection with the hospital.  Over the years my penchant for grasping straws has held more than a little weight.  In a voice that would make James Earl Jones sound like a soprano, my client’s father said: “Thank you, counselor.”  Passing the bar examination made me an attorney, but on that day, for all time, I was a counselor-at-law.

My second encounter with Judge Schenk came a few months later.  On May 4, 1970, at Kent State University, a company of National Guardsmen fired their weapons into a gathering of students, some protesting President Nixon’s announcement that American troops were invading Cambodia, and some just watching.  Four died and nine were wounded.

The following day, in a gesture of solidarity, college students in Albany organized and carried out a protest at the Capital.  My client, Jethro Brady (not his real name), an assistant professor in the Department of Speech and Rhetoric, out of conviction or curiosity, showed up.   In a display of questionable generosity, he reached into the pocket of the tattered army fatigue jacket he had put on that morning and discovered three marihuana cigarettes that had been hibernating all Winter in the folds of the lining.  Moving as deftly as a magician reaching for furry ears, he produced one joint apiece for three students.  And, with the disdain of Broadway critics panning the performance, Albany’s only two narcs, clad in brand new jeans and fake beards, as inconspicuous at the rally as Wilt Chamberlain at a jockey’s convention, broke their cover, and arrested him.  At the time, the Penal Law classified marihuana as a “narcotic.”  Jethro was facing 45 years in prison for three sales of a narcotic drug.

“The times they are a-changin,” composed by Dylan in 1964, grew more prophetic with each year, yet still seemed more a hope than a promise for those whose consciousness had been raised the previous Summer at Woodstock and throughout a country where patriotism was taking sides.

Because of all the time I would have to devote to the case and the fact that Jethro was on the faculty at SUNY, I gave up the make-believe solitude of the ivory tower where I was ABD for a Ph.D. at the School of Criminal Justice and opened a law office on Washington Avenue upstairs over the Eagle Restaurant and across the hall from Central Antiques.

The subject matter of cases coming before Judge Schenk would be changing as well.    Preceded by ancestors who arrived on the North American continent before the Mayflower, he was a graduate of the Albany Academy, Yale University, where he may have taken classes with his close friend, Erastus Corning II, and Albany Law School.  Judge Schenk served in the Army during the Second World War, rising to the rank of captain.  After the war, like any young lawyer who hoped to get somewhere, he became involved in politics.  He served as Recorder (Traffic Court Judge) for a couple of years before becoming County Court Judge, a position he would hold from 1950 to 1972.

Judge Schenk authored works on the Civil War and fly fishing.  He was an avid golfer, retreating daily, weather permitting, to the bucolic confines of the Schuyler Meadows Club.  He managed his patrician upbringing without ever being haughty.  A thoughtful man, he would not shrink from the challenge of resolving conflict between authority and rebellion.

Judge Schenk was an integral part of one of the most powerful political machines ever fashioned in this country.  The perception, and likely the reality, in many cases, was that for “smart” lawyers knowing the “right” person might be the best defense for the client.  Until sitting down to write this piece, it never once occurred to me that Jethro’s fate was determined by party bosses and not the wisdom of Judge Schenk.  I grew up in Paterson, New Jersey.  I graduated Syracuse University and from the University of Chicago Law School before I ever set foot in Albany.  For reasons I never could fully fathom-perhaps my contrarian nature-I chose to zealously preserve my political independence.  I have always been an outsider, getting only an occasional glimpse into back rooms.

To finance the defense we held a fund raiser at the SUNYA gym.  Alan Ginsburg and Gregory Corso, the two best known poets of the “Beat Generation” did their thing.  The only poem of Jethro’s that I remember was “They Paved New Jersey.”  In numbers, the turnout was impressive, but the proceeds fell short of what we hoped to collect.  Launching the defense with a war chest that added up to as much money the hippies in the audience had spent for deodorant that year would prove to be daunting.  Shoestrings have always been my primary resource.  Someone once asked me how I was doing.  I told them: “I work for peanuts, but it seems to keep elephants alive.”  Two weeks later, I filed a motion challenging the Constitutionality of New York’s marihuana statute.

Over the years, politicians and ad men have thrived on the sound byte, a distillation of complex issues into a single phrase.  “A chicken in every pot,” and “Ring around the collar,” are but a couple of dated pitches that got way more exposure than what I wrote.  But since my target was Judge Schenk not every voter or housewife in America, it turned out that I made my point.

Feedback is not always readily available.  But in Jethro’s case, about a month after I filed my motions, a lawyer approached me in the courthouse and said: “Judge Schenk is quoting you.”  The lawyer indicated that he was conferencing a case when Judge Schenk said: “Mr. Feit says that marihuana is the intoxicant of the young.”

When the case began, my client’s repeated vowing he would be willing to spend the rest of his life in prison if that’s what it took to change the law, soon became a mantra he regularly whined in my ear.  “Please, I can’t go to jail!”  A disposition was reached.  Jethro would plead guilty to a misdemeanor and pay a fine.

What was then, and remains, more meaningful to me than the perceived impressions of others is appreciating the exquisite gratification of advocacy achieved.  Making the difference is an admirable goal. At the time of sentencing Judge Schenk began his remarks by saying: “A number of years ago, many people, including myself, openly violated the law, and most of us turned out okay.”  His allusion to Prohibition showed me that he had grasped and understood my arguments.  He showed me that flexibility could be an instrumentality of understanding and, in a small way, could recognize and accept that “The times they are a’changin.”  Had he taken my argument a bit farther, i.e., legalizing the sale of marihuana in liquor stores, so people who drank alcohol would see they were no better than those who smoked “pot” and vice versa, we wouldn’t be paying all the taxes we do today.

Epilogues can be enlightening.  Jethro and I lost touch.  One night during “Saturday Night Live’s” first season, I saw “Jethro Brady” inscribed on the name plate of a judge in one of the comedy skits.  At the time, I had no idea why his name would be on the judge’s bench.  A few years later, I learned that Jethro, no longer teaching, made weekly trips to New York City and had  established himself as the primary supplier of cocaine to the original cast of SNL.  They made him a judge-their inside joke.  His next gig was as an informant for the Feds.  He died not long thereafter, ravaged from a lifestyle that ignored longevity.

Judges are people too.  Judge Schenk might have second-guessed himself if he knew what became of Jethro.  It’s one thing to learn that a guy given a chance went astray.  How about the good deeds those who were sent to prison might have done instead of time?  

End of Part I
Part II will appear in the next Newsletter.


A Little History Couldn’t Hurt (Part II)

Just about everything in Part I was anecdotal, but, as it happens, I did become aware of one of the Judge’s most far-reaching decisions which arose and was over a year or so before I settled down in Albany.  The case is remarkable and of considerable historical significance because his decision dismissing the indictment on grounds of entrapment changed how drug laws would be enforced thereafter.  

One of the four defendants was a guy I had known in college.  During my sojourn in law school, he and three partners opened an advertising agency in Albany.  For some reason, their firm was approached and asked if they would be interested in handling a publicity campaign for Japanese industrialists seeking to secure a bigger piece of the American market for their products.  A few strings were tied to the offer.  They would only be considered for the contract if they arranged for hookers, booze, and drugs to be made available when the representatives arrived from Japan. 

So, with a flair that would have made denizens of Madison Avenue proud, the rookie ad men procured everything on the wish list.  On the big night, they were arrested in a sting conceived and executed by the New York State Department of Health.  Judge Schenk tossed out the case and, the State Police, who previously had to defer to the DOH Bureau of Narcotics, were designated to investigate and enforce all criminal drug cases in the State.

Lest one conclude that midnight oil constantly burned on the second floor of the courthouse, it should be noted that in 1969, the first year I was in the District Attorney’s Office, only eight trials were held in County Court.  Looking back on those years before computers, fax machines, cell phones, and OCA, there can be no doubt that the pace of the business of law was less stressful.  Somewhere along the way, the wheels of justice sped up.  The tempo became “justice delayed, is justice denied” with a vengeance.

Asking whether rush to judgment is an inevitable consequence of the accelerating volume of cases and the limited resources of contemporary society is rhetorical.  What happened one late Spring afternoon in the early 1970's is a perfect example of how the cadence of the courthouse has changed.  Climbing the stairs for a 1:30 p.m. suppression hearing before Judge Schenk, I bumped into my adversary who seemed a bit agitated over the prospect of starting the hearing that day.  I looked him in the eye and said:  “There’s not going to be a hearing today, trust me.”  His disbelief bubbled to incredulity when the Judge’s secretary confirmed my diagnosis.  As we left, I said: “This is too nice a day for the Judge to spend the afternoon in the courthouse.  I guarantee you, he’s playing golf.”

In the days since coming across Judge Schenk’s papers, I have shared my discovery with scores of lawyers.  Few had recollection.  Quite a few displayed a genuine curiosity and interest in the way things used to be.  If life exists on other planets and aliens drop by some day, what will they learn about our world from what they see?  How many television programs are devoted to the judicial process compared to sports, entertainment?  Perhaps if more time is spent studying  the role of judges as part of the criminal justice system, the public, and any aliens who happen to show interest, might be better informed.


Both of my direct experiences with Judge Schenk, as related to this point, came after I left the District Attorney’s Office.  The first connection wasn’t face-to-face and it wasn’t in the Albany County Courthouse.  A year before I ever shook Judge Schenk’s hand, I was defending his actions.  The occasion took place next door in the New York State Court of Appeals.  I was attorney for the appellee, “The People of the State of New York,” seeking to prevent the reversal of a conviction from Judge Schenk’s court.

Three men had been charged with murder, the mugging of an 80-year-old man for the proceeds of his retirement check.  One of them stood on the sidewalk, as lookout, while the other two savagely took the old man’s money and his life.  The lookout was 16 years-of-age.  His lawyer got him a good deal and, at sentencing before Judge Schenk, read a brief statement the kid had given to him.  “I did not rob nor kill Burt Taber.  What I did was wrong.  My mother and my grandmother taught me better.” 

The record reflected Judge Schenk’s commenting that because the kid’s involvement was less, he was receiving a shorter sentence.  It didn’t matter that I had never met Judge Schenk before I stood up before seven judges, ready to answer any questions that they might have asked.  I was confident from reading the transcript that Judge Schenk’s conducting the proceedings had been wholly in conformity with law.  I was certain that what the defendant’s lawyer had read to the Judge was not any kind of an attempt to withdraw the kid’s plea, raised as an issue for the first time on appeal.

During oral argument, Judge Gibson, one of the sitting judges, asked me if I had read the recent U.S. Supreme Court decision on the subject.  I asked: “Do you mean Boykin vs. Alabama?  He said: “Yes. And, I said: “Yes, your Honor, but I didn’t think it applied.”  And, he said: “Well, read it again!”  Arthoscopic knee surgery was still a few years away, but, from his comment, I knew how it would feel. 

The case was, and still is, important, instructional on what is required of a judge in taking a plea allocution.  Even though I did my best to have the conviction affirmed (my job) I secretly hoped (closet defense attorney) that, if they reversed the conviction, the Court of Appeals would render a decision like Miranda, enumerating, in detail, what would be required of the judge.  They didn’t.  They reversed and remanded the case without explanation.

Five years in prison had passed before reversal and remand for re-sentencing.   A clean prison record and a stack of supportive letters persuaded the Judge to place the defendant on probation.  “Big Red,” the name the kid earned during his time behind bars, later became one of my favorite, and most frequent clients.

 

I never got to play golf or go fishing with Judge Schenk and yet, I doubt that anything I might have learned outside the courthouse would differ from what I learned within.  Martin Schenk displayed wisdom, kindness, and, most of all, fairness, in carrying out the duties of his judicial office. 


Michael A. Feit, Esq.
383 Clinton Avenue
Albany, New York 12206
(518) 434-2306
FeitEsq@aol.com






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