The two top federal prosecutors in New York City soon may be pondering their next career moves, especially if voters put a Democrat in the White House. If tradition holds, the incoming administration will replace most of the nation's U. S. attorneys, who are political appointees, with those of its own choosing. And with the Justice Department still reeling from allegations of improper hirings and firings under the Bush administration, critics say it may be time to reconsider how the head prosecutors are selected.
The U. S. attorneys in New York City are Michael J. Garcia in the Southern District, which includes Manhattan, The Bronx and Dutchess, Rockland, Orange, Putman, Sullivan and Westchester counties, and Benton Campbell in the Eastern District, which includes Brooklyn, Queens, Staten Island, and Suffolk and Nassau counties. They are two of the Justice Department's 93 chief federal prosecutors.
Garcia, appointed by President George W. Bush, took the helm in 2005 after serving as head of Immigration and Customs Enforcement for the Department of Homeland Security. Campbell, a former assistant deputy attorney general, was appointed U. S. attorney for the Eastern District about a year ago. Both men had extensive experience as federal prosecutors in their districts before their appointments.
U. S. attorneys prosecute criminal cases like racketeering, bank fraud and terrorism, and represent the United States in civil suits. They oversee sometimes large staffs of assistant U. S. attorneys, so-called "career prosecutors"-- civil servants who are not affected by a change in the administration. In contrast, the U. S. attorneys are appointed by the president, serve at the president's discretion, and generally leave when the president does.
"You know when you take the job that it's a political appointment and there will be an end to it," said Mary Jo White, a former U. S. attorney for the Southern District who is now in private practice in New York. Usually the incoming administration allows several months for an orderly transition, White said, in order to minimize disruption to ongoing cases.
But not always. When Bill Clinton was elected, he reportedly sent word that the U. S attorneys were expected to resign "immediately or as soon as they could." White, who was appointed by George H. W. Bush, was one of the exceptions. The new administration asked her to stay on for another year because she had hands-on involvement in the prosecution of some high-profile terrorism cases, including those arising from the bombings of the U. S. embassies in East Africa.
Politics plays an essential role in the appointment of a U. S attorney. Traditionally, a candidate is first recommended by that person's home-state senior senator-if the senator belongs to the president's political party. If both senators from that state are from the opposition party, the choice falls to the senior state official of the president's party. Once the White House approves the candidate and makes the official nomination, the same home-state senator plays a key role in securing Senate confirmation.
In 2005, it fell to Gov. George Pataki, a Republican, to recommend Garcia for the Southern District post, because there was no Republican senator from New York. The Senate then confirmed Garcia. In the Eastern District, the Justice Department appointed Campbell on an interim basis, and he was later sworn in as U. S. Attorney, although Senate confirmation is still pending.
The appointment system has come under fire several times in the last half-century. State and local bar associations sometimes raise an outcry about a particular nomination, when they view the candidate as unqualified due to a lack of experience. More recently, it was revealed that the Bush White House had routinely screened candidates to see if they had political ideologies in line with the administration's policies. And last year, a congressional probe found that partisan politics fueled the firings of nine U. S. attorneys in 2006. Attorney General Michael Mukasey appointed a special prosecutor in Septembre to look into whether there was any criminal behavior in the firings.
"There's a morale issue in the U. S. attorneys' offices," said Timothy J. Heaphy, a former assistant U. S. attorney in the District of Columbia and Western Virginia. "The politicization has discouraged the people who work there." In an October essay in Legal Times, Heaphy called for another look at a merit-based selection system to "help remove the taint of politicization and restore Justice's reputation for independence."
Merit selection was first proposed by then-presidential candidate Jimmy Carter in 1976. Under the plan, each state would have an independent nominating commission to solicit, screen and recommend applicants to the home-state senator based on the candidate's qualifications rather than political connections.
"Carter couldn't really sell that," Heaphy said. "The Senate predictably didn't want to give up their almost exclusive power to appoint those people." Now, however, with the Justice Department operating under a cloud of suspicion, Heaphy says the time may be right for a renewed discussion about reform.
Even without a merit selection system, the U.S. attorney's offices in New York City have a reputation for being largely above the taint of political patronage and favoritism. Many of the cases tried by federal prosecutors in Manhattan and Brooklyn have made headlines-if not history. Alger Hiss and Julius and Ethel Rosenberg were tried in the Southern District, as were Ivan Boesky, Michael Milkin, Martha Stewart and many mob bosses. The Eastern District office was responsible for convicting John Gotti, as well as defendants in the Abscam political corruption case, the Zakharov spy case and the Abner Louima police torture case.
Of the two offices, the Southern District is larger, with around 220 attorneys compared with about 160 in the Eastern District. A white-collar criminal defense attorney in New York, Marc Mukasey, calls the Southern District "the best of the best."
"It's the Top Gun school for federal prosecutors," said Mukasey, a former assistant U.S. attorney and the son of Attorney General Michael Mukasey. "It's the busiest office, with the greatest tradition, the highest standards, and it takes in the most demanding work."
"The Southern district continues to be one of the most important federal U. S. attorney's office in the United States," said Otto Obermaier, who headed the office from 1989 to1993 under President George H. W. Bush. In addition to the large volume of high profile cases, he said, the district has historically been able to attract a wealth of legal talent. Manhattan federal prosecutors have gone on to become federal judges, secretaries of state, and even mayor of New York City. Two assistant U. S. attorneys - Felix Frankfurter and John Marshall Harlan II--became justices of the U.S. Supreme Court.
"It has always had exceptionally talented people. While the U.S. attorney can be and often is a political appointment, the tradition of the office itself compels the appointment of extremely talented assistants." Obermaier said. "Being U.S. attorney in the Southern district is kind of like being the musical director to the New York Philharmonic. It's great you can get up there and wave the baton around, but it helps to have extraordinarily talented musicians."
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In the wake of another construction fatality last week, the City Council passed three bills Thursday aimed at increasing safety at building sites with cranes, including increasing coordination between operators and engineers and limiting the use of nylon straps.
The council also approved legislation prohibiting individuals from climbing or basejumping off of buildings.
At approximately 9:30 a.m. Thursday, a 48-year-old construction worker plummeted 40 stories to his death. He fell from the platform of a crane, where his harness was not properly secured.
That afternoon, the council unanimously approved three bills – part of a package of proposals introduced following two fatal crane accidents earlier this year. Most of the other measures have already been passed.
Thursday's accident was the third in six months. City officials suspended the license for the site's master rigger after an investigation found he had not supervised the crane operation.
The bills come as the city buildings department continues to be under intense scrutiny. Council Speaker Christine Quinn said the legilsation is not meant to restrict development but to enhance safety.
"Yes, we want development to happen in New York," said Quinn. "But we're not going to compromise safety."
The first bill (Intro 796 ) requires an engineer or rigger draft a plan for the crane's operation and submit it to the city's Department of Buildings. It also requires pre-jump safety meetings, which the department must be notified of at least 48 hours beforehand.
Another bill (Intro 794) requires crane operators take a 30-hour training course at least every five years. The final bill ( Intro 795) will restrict the use of nylon strings to hold cranes in place. A crane accident in March, which killed seven people, could have been caused by the failure of nylon straps.
In early June, two men in one day – one a skilled climber, another reportedly raising awareness for malaria – scaled the New York Times building.
The incident caught the attention of one member of the City Council, who introduced legislation (Intro 721) that would make it easier to prosecute people who try similar stunts. Councilmember Peter Vallone said that previously prosecutors had to prove the climber recklessly endangered the public. Now, he said, just climbing, jumping or suspending oneself from any structure will be illegal.
“Clearly, we don’t want our city to continue to be Disneyland for daredevils,” said Vallone.
Anyone found guilty could face one year in jail and a $1,000 fine. The bill was approved by a vote of 48 to 1, with Councilmember Helen Sears voting no.
Legislation to boost training on elder abuse for nonprofits that contract with the Department for the Aging was unanimously approved by the City Council.
The bill (Intro 737 ) requires the department develop training programs on detecting and eliminating elder abuse. The service groups will have to be trained every three years and hold at least two educational sessions annually. Â
After Rashawn Handsome of Brooklyn was arrested for keeping three handguns in a sneaker box in his apartment -- without any license for them -- his Legal Aid attorney argued that Handsome had a right to bear arms under the Second Amendment of the Constitution. As we reported last year, a Criminal Court judge emphatically disagreed. The guarantee of the right to bear arms, Judge Michael Gerstein said, referred to state militias. No one, the judge reasoned, intended for every individual to "own firearms for their private, civilian use."
But now the Supreme Court has spoken on this issue -- in a case involving the District of Columbia's restrictions on guns. Could Handsome and his Legal Aid Society attorney have been right?
Exactly what the Second Amendment means has been debated for years -- centuries, actually. This summer the Supreme Court of the United States, in the case of District of Columbia v Heller, addressed the question for the first time. According to five of the nine justices, the words, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed," means that individuals have a right to possess weapons. The amendment, the court held, is not limited to states providing weapons to militias or, in modern times, the National Guard.
In light of that opinion, New York City cases that were held in abeyance must now be decided.
The Washington, D.C. and the New York state and city laws are quite different. Washington's laws, considered the strictest in the country, totally banned handgun possession and did not allow for the lawful registration of weapons. New York, on the other hand, permits gun ownership provided the individual wanting a gun obtains a license first.
New York's current requirements for a license are "good moral character" and that there be "no good cause" for denial. For the even more elusive right to obtain a "carry permit," which enables the owner to have the gun outside the home or business, "proper cause" must be established.
Defense lawyers have already challenged these restrictions in criminal cases where their clients have been arrested for possession of guns. These criminal defense lawyers argue that the New York laws are unconstitutional and therefore the charges must be dismissed. While lower criminal courts will continue to uphold city and state restrictions, those decisions will be appealed. It is considered unlikely that the appellate courts will find the licensing requirements unreasonable or unconstitutional.
The Supreme Court clearly said that the Second Amendment is not an unlimited right, and that conditions and qualifications, including a licensing law, could be imposed if they were not enforced "arbitrarily and capriciously." In other words, the justices expressly upheld both the ability of individuals to possess guns and licensing.
Richard M. Aborn, president of the Citizens Crime Commission of New York City and a gun control advocate, calls the decision, "a victory." It "validates that the Second Amendment is not a barrier to laws we need, such as licensing, registration, safety training," Aborn, a former prosecutor and candidate for Manhattan district attorney, said. "The issue is about keeping guns out of the hands of bad guys."
The court, however, clearly determined that an outright ban "amounts to a prohibition of an entire class of 'arms' that is overwhelmingly chosen by American society for that lawful purpose." Writing for the majority, Justice Antonin Scalia said, "Handguns are the most popular weapons chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid."
"We are aware of the problem of handgun violence in this country," the justices said, "but when it comes to an absolute prohibition of handguns kept and used for self defense in the home ... [such] policy choices [are] off the table."
This concerns some gun control advocates. The Brady Campaign to Prevent Gun Violence issued a statement saying, "After the Heller ruling as before, approximately 80 Americans will continue to die from guns every day. Our weak or nonexistent gun laws contribute to the thousands of senseless gun deaths and injuries in this country every year. We must continue to fight for sensible gun laws to help protect our families and our communities."
Motions filed by the Legal Aid Society in a variety of gun cases claim that the licensing process and the difficulty of obtaining licenses amount to a complete ban on the ability to legally possess firearms, which, under the Heller case would be unconstitutional. The standards that a person be of "good moral character" and that "no good cause" exist for the denial are, defense lawyers maintain, flawed, vague, and insufficient.
Despite that, the argument that there is an absolute, unrestricted constitutional right to possess weapons of any type, at any place and by any person, is not expected to succeed in any court or even be raised. Constitutional amendments, including the second, may be subject to some restrictions. For example, the First Amendment guarantees the right to freedom of speech, but "not a right to falsely yell fire in a crowded theater." These are not absolutes.
In the Heller decision, the Supreme Court expressly approved certain categories of denial used in New York including those applying to individuals who have a felony record or a mental health disability. It is considered unlikely that a license would be granted to anyone who has ever been arrested, lives with anyone with a criminal record or uses controlled substances. In the meantime, the National Rifle Association is planning its attacks, which will involve civil law suits, on various state laws. New York is not on its list.
Challenges to pending cases and future arrests involving firearms will be the subject of litigation for years before the constitutionality of New York's laws is decided. There could well be more trips to the Supreme Court. The court said as much: "Since this case represents this Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field."
Emily Jane Goodman is a New York State Supreme Court JusticeÂ