(Part 2) NY Chief Judge Nominee Rowan Wilson

In Part 1, we tracked Judge Rowan Wilson's eventual nomination by former Governor Andrew Cuomo to the Court of Appeals in 2017--on Wilson's 6th consecutive inclusion on the Commission on Judicial Nomination's list of recommended nominees. We also reprised my suggestion, ten years ago, that he would be an "ideal choice" to be Chief Judge. (I'm hardly clairvoyant, but I do believe my suggestion even more strongly today.)

Now that Governor Kathy Hochul has nominated Wilson for that center seat on New York's highest court, let's review some of his opinions that do strengthen my view. Specifically, let's review some of his dissenting opinions. Only a few will do.

As I've discussed many times, dissents are the most revealing opinions. They are often "pleas for greater justice, decency, and wisdom" in which their authors "felt compelled--by principles higher than consensus and unison--to protest publicly what their colleagues had decided." (See Great Dissents: 'Matters of High Principle' at the Court of Appeals, 94 N.Y. ST. B.J. 23 (Nov./Dec. 2022).

Let's start with just two Wilson dissents in criminal cases.

People v. Tiger, 32 N.Y.3d 91 (2018)

By a 5-2 vote, the Court held that, except in a case of newly-discovered DNA evidence, a defendant who initially pleaded guilty was never permitted to subsequently claim actual innocence on appeal. The majority, insisting that a guilty plea was incompatible with innocence, emphasized the need for the finality of criminal convictions and the conservation of judicial resources. The majority gave no weight to the fact that, subsequent to her guilty plea and conviction, the defendant had been exonerated of any wrongdoing in a civil case. Nor did it give weight to the unanimous conclusion of the Appellate Division (New York's intermediate appeals court) that the defendant had established a prima facie showing of innocence.

Judge Wilson decried the majority's rigid rule and its indifference to the injustice it perpetuates. As he put it:

Natascha Tiger pleaded guilty but is innocent. 

Ms. Tiger is neither the first nor last innocent person to plead guilty. Ms. Tiger's case...provides a compelling example...Faced with seven years in prison, she pleaded guilty after her lawyer told her she could not afford to hire an expert and a guilty plea could result in a suspended sentence. 

Subsequently, when the [victim's] family sued Ms. Tiger[, e]ven though [they] had to satisfy only the "preponderance of the evidence" standard, and not the "beyond a reasonable doubt" standard, the jury found that Ms. Tiger did not cause the [victim's] injury.... 

We know that some completely innocent people plead guilty...[I]nnocent defendants may be motivated to plead guilty for a variety of reasons: most prominently, the threat of a more serious charge and a far longer sentence upon electing to go to trial [and] concerns about the defendant's lawyer or the availability of evidence that would conclusively demonstrate innocence. 

Wilson then quoted former Chief Judge Jonathan Lippman:

"Every wrongful conviction is a stain on the reputation of the courts, eroding public trust and confidence in the legitimacy of our institutional status and the fairness and accuracy of our decisions. This only underscores why the judiciary, the focal point of the entire justice system, is absolutely duty-bound to lead the way in making sure that the criminal justice process is as fair and accurate as humanly possible." 

Today's decision inexplicably and unnecessarily denies that mission.

[I have written previously about this case: NYCOA: Criminal Appeals (Part 4c)--More Recent Dissents That Should Have Been Majorities, 3/27/2019. A former student has done so as well: Olivia Harvey, People v. Tiger, “[M]ore than it should and less than it seems:” The Court of Appeals’ Over-Emphasis on Finality and Conservation of Judicial Resources, 2/1/2023.]

People v. Dawson, 38 N.Y.3d 1055 (2022)

In a two-paragraph unsigned opinion, another 5-2 majority rejected a right to counsel claim. The majority simply deferred to the determination of the trial judge that the defendant, who was being interrogated at the police station, was not sufficiently clear that he wanted to speak with an attorney.

Judge Wilson's dissenting opinion showed that the evidence was just the opposite. And because the 19-year-old defendant--who had been brought to the police station in handcuffs, shackled to a chair in the interrogation room, and left isolated for a couple of hours--did make it clear, his waiver of Miranda rights and consent to be questioned in the absence of an attorney was invalid.

To show that the defendant did indeed want to speak to a lawyer, Wilson spelled out a transcript of the conversation in the interrogation room:

Detective: “Do you understand each of your rights?”

Dawson: “Yeah, definitely. I just wish that I'd memorized my lawyer's number. He's in my                         phone. Is it possible for me to like call him or something?”

Detective: “Do you want your lawyer here?”

Dawson: “Right now?”

Detective: “Yeah.”

Dawson: “If I could get a hold of him ‘cause I don't know his number; it's in my phone.”

Detective: “OK.”

Dawson: “But you could still tell me what's going on though, right?.”

Detective: “No, I can't talk to you if you if you want your lawyer here and you already                         said you did, so let's, you know what, let's give him a call.”

Dawson: “And if he don't answer then can you come talk to me?”

Detective: “No.”

Dawson: “So what happens if he don't answer?”

Detective: “Ah, I mean, we'll, we'll deal with that if it happens. Let's hope he answers. I                         mean, from the sound of it, it sounds like you understand your Miranda                             rights and you want your attorney.”

Dawson: [Inaudible]

Detective: Is that, am I understanding that correctly?”

Dawson: “Well, yeah, I just, to be honest I just really want to know what's going on, you                         said something about [not discernable], you know, I don't know what the hell                      happened, what incident happened. I just really want to know what's going                         on. That's pretty much it.”

Detective: “OK.”

Dawson: “That's all.”

Detective: “OK. So just hang, hang tight for a minute, OK? We'll get your phone, we'll go from there.” 

Wilson  explained what happened next:

At that point, the detective left the interrogation room, purportedly to get Mr. Dawson's phone so he could call his lawyer. [But] Mr. Dawson was not given his phone, was not given any means to contact counsel, and no one attempted to contact his counsel on his behalf. Instead, less than two minutes later, when the detective next entered, he sat down and said, “Here's the deal, I'm just going to ask you flat out...do you want your lawyer here or do you want to just figure this out?” Mr. Dawson replied, “I really just want to figure this out.” The detective administered Miranda warnings again and Mr. Dawson agreed to speak to police. 

Wilson then reminded his colleagues that the "right to counsel in New York is robust and one our court has vigilantly guarded." And specific to this case:

[A]n unequivocal request does not require “magic words.” [Wilson's citation to Court of Appeals precedent omitted here.] We have found statements to police to be unequivocal even when suspects have used conditional language or spoken without absolute confidence about their desire for representation. In People v. Harris, we upheld the Appellate Division's determination that the defendant's statement “I think I want to talk to a lawyer” was unequivocal. [Citation omitted.] In People v. Esposito, the defendant told police, “I might need a lawyer.” [Citation omitted.] We held the statement “constituted a request for counsel.” Finally, in People v. Porter, we reversed the Appellate Division's determination that the defendant's statement to police “I think I need an attorney” was insufficient to unequivocally inform the police of his desire for counsel, determining the record could support no other reasonable interpretation of the request. [Citation omitted.]....

 As is clear from the quoted portion of the colloquy with the detective, [Mr. Dawson] twice said he wanted to call his lawyer, and the detective twice expressly stated that he understood Mr. Dawson had asked to call counsel and therefore the detective could no longer speak to Mr. Dawson. Additionally, the detective then told Mr. Dawson to wait while the detective retrieved Mr. Dawson's phone so he could call counsel....

Judge Wilson began to conclude with a question and observation about the majority of the Court:

The detective repeatedly stated that he understood Mr. Dawson to have requested counsel. Why doesn't the majority? I have no good answer, only an observation. Today's holding is like several others in which our Court has imposed a high and unrealistic linguistic burden on criminal defendants – where the intent is clear, but some better choice of words can be imagined, often finding ambiguity in deferential language. [My emphasis.]

In the two cases discussed above, it's difficult to miss a certain rigidity and indifference in the majority's position, and the plea for equity, common sense, and the protection of basic rights and justice in Judge Wilson's dissenting opinions. Moreover, these two cases are not exceptions. They have been fairly typical in the criminal cases when Wilson has dissented.

In the next post, we'll take a look at a couple of civil cases in which Judge Wilson's dissents give us insight--like the two criminal cases just discussed--into his jurisprudence.

(Inasmuch as the state's Senate Judiciary Committee has scheduled its hearing on the Wilson nomination for tomorrow [Monday, April 16, 2023], he may be confirmed by the time the next post is published.)