Wednesday, September 24, 2008

Ed Nowak -- Appellate Superstar

Its been two week since Ed Nowak has announced his plans to retire after serving thirty years as the Monroe County Public Defender. Since then numerous people have expressed to me their appreciation of Ed's impressive accomplishments as Public Defender. Many have referenced Ed's ability to attract and keep highly qualified attorneys and support staff dedicated to providing high quality representation to our clients. Others have focused their comments on Ed's contributions, both on a local and state level, to achieving a just criminal justice system . Still others have mentioned how they have come to depend on Ed and his lectures on the decisions of the Court of Appeals as as a key way of keeping informed of developments in New York law. All of these accolades are obviously well deserved. Yet, I think that there is one aspect of Ed's achievements as a Public Defender that has received insufficient attention -- Ed's remarkable achievements as an appellate advocate.

Ed was 29 years old and already the Monroe County Public Defender when he argued and won Dunaway v New York, 442 US 200 [1979]. To appreciate how big a victory that was, one needs to realize that not only had had the New York Court of Appeals held in People v Morales,42 NY 2d 129 [1977] that only reasonable suspicion was needed to hold someone for questioning , but the Appellate Division, Fourth Department had already held in Dunaway that, even if his detention was unlawful, Mr. Dunaway's statement was attenuated from any such illegality. Ed persuaded the Supreme Court that there is a higher standard to be met before a person can be detained for purposes of questioning. Justice Brennan's decision in Dunaway already been cited more than 6300 times.

At age 33, Ed argued and won People v Parker, 57 NY2d 136 [1982], getting the Court to vacate Ms. Parker's conviction because she had not been told of the consequences of her failure to appear at her trial. Ed had argued for and achieved more than a reversal for Ms. Parker. Instead of simply arguing that she had not knowingly waived her right to be present at trial, Ed sought and obtained a ruling that in order for any defendant's absence from trial to be found to be knowing, intelligent, and voluntary, defendants first must be warned as to what would occur if they fail to appear. On the long drive back from Albany and that oral argument, the young attorney in the car with Ed, having witnessed the tough questioning which Ed had just endured, suggested that perhaps Ed should have taken the more moderate approach and just sought a narrow win. I guess I was wrong.

So by age 33, Ed was responsible for Dunaway hearings and Parker warnings.

By the way, Ed was also the winning attorney in People v Brooks, 75 NY2d 898 [1990], in which the Court held that even when "Parker warnings" are given, it is error to proceed in abstentia without there being a a record and determination establishing that the defendant's absence was deliberate.

Even when Ed failed to obtain reversal of his client's convictions, his work made a huge impact on the development of law. For example, in People v Lipsky, 57 NY2d 560 [1982] the Court of Appeals ruled against Ed and reinstated the murder conviction of his client Leonard Lipsky. this was a case in which there was no body and Mr. Lipsky's statement was the primary, if not exclusive, evidence of death. The Court of Appeals held that Mr. Lipsky's confession was sufficiently corroborated despite the fact that body of victim was never found and there was no direct evidence, other than confession, that defendant caused the victim's death, since there was circumstantial evidence calculated to suggest that victim was dead and implicating defendant as the criminal agency, the key to which was furnished by defendant's confession. After losing at the Court of Appeals Ed got the Appellate Division, Fourth Department, on further appeal, to reverse the conviction of the ground that the corroboration of the confession was insufficient under the instruction given to the jury. (Murder prosecution and convictions when there is no body are still subject to the peril (and embarrassment) that someone might see the supposed decedent alive after the time of the supposed homicide. See last week's headline).

But the loss which bothered Ed the most (other than the many losses by Notre Dame) was the 4-3 decision of the Court in People v Register, 60 NY2d 270 [1983] that "depraved indifference" is neither a mens rea nor an actus rea. For more than twenty years Ed would complain how the Register decision made deprave murder such a standardless, amorphous concept that it violated due process. Of course, our office raised that argument unsuccessfully in People v Johnson, 87 N.Y.2d 357 [1996]. But finally, in 2003, in People v. Feingold, 7 N.Y.3d 288 [2003], the Court recognized that it had erred in Register and that, as Ed had argued, depraved indifference to human life is a culpable mental state. Having that loss corrected and undone, I guess Ed feels he is now free to retire.

I could go on, but I think the point is clear. Ed's contributions as an appellate attorney are as impressive as his many other achievements.

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