My First Jury Trial

Although I started handling criminal cases from the day following my admission to the bar when I was assigned a larceny case in Rensselaer County Court, and routinely went to criminal courts on a variety of matters, most were disposed of by a plea agreement or dismissal, and some times by a trial before the judge without a jury.

My first solo jury trial took place in April 1965, in the City Court in Cohoes, an old, decaying factory town in Albany County, across the Hudson River from north Troy. Cohoes, much like the City of Albany, had long been solidly entrenched in the hands of the Democrat party. William Dawson was the political boss of Cohoes, but his organization had recently lost control of the city government in 1964 to the new Citizens Party, led by a local doctor and a group of reformers. Dawson’s leadership was then looked upon with disfavor by the Albany County Democratic organization. Although his legal expertise was title insurance, not litigation, the Citizens Party installed Frank Landry as the City Court judge.

Soon after taking control of the government, the Citizens Party leadership hit upon a plan to further reduce Dawson’s influence in Cohoes. Dawson controlled a local newspaper that was really his party’s main political communication with the voters. It was called “Newsweekly Newspapers”, published by Newsweekly Newspapers, Inc., which Dawson said was owned by him and the Democratic Party of Cohoes. It naturally was very critical of the Citizens Party and its governmental administration.

Paul G. VanBuskirk, the executive assistant to Mayor McDonald, filed a criminal complaint against Newsweekly Newspapers, Inc., charging a violation of New York General Business Law Section 330, which requires that:

“Every newspaper, magazine or other periodically printed publication published in this state, shall publish in every copy of every issue, upon the editorial page or in one of the first four pages of the publication, the full name and address of the owner, owners, proprietor or proprietors of such publication; and if said publication shall be owned or published by a corporation, then the name of the corporation and the address of its principal place of business shall be published, together with the full names and addresses of the president, secretary, and treasurer thereof; and if the said publication shall be owned or published by a partnership, limited partnership, or an unincorporated joint-stock association, then the full names and addresses of the partners, or officers and managers of said partnership, limited partnership or unincorporated joint-stock association shall be published in like manner. The representative capacities of those named shall be indicated in like manner.”

Bill Dawson was friendly with Seymour Fox, the Troy attorney who I had been working for since graduating from law school in 1963. He asked Seymour to defend his newspaper, but Seymour didn’t want to get into a political fracas, particularly one in which the defendant corporation was in clear violation of the statute. Seymour suggested that I handle the defense, and I jumped at the chance.

The prosecutor was William Gray, an Albany County Assistant District Attorney, and Richard Kohn, a law school classmate who had recently joined the District Attorney's Office. From the outset, it was clear that there was not going to be any plea bargain or compromise, and I demanded a jury trial. I had Robert Clark, the nominal president of Newsweekly Corp., file a similar criminal complaint against the Capital Newspapers, part of the Hearst Corporation, since its Albany papers, The Times Union and The Knickerbocker News, also were in clear violation of the statute. (Although the Hearst Corporation appeared to defend the complaint, that case mysteriously died before the scheduled May trial). Judge Landry did not find that Newsweekly Corp. was being selectively prosecuted, even when shown that none of the other newspapers circulated in Cohoes, including the New York Times and the Wall Street Journal, failed to comply with the letter of the law.

A six-person jury was impaneled on Monday evening, April 12, 1965, and the trial went into the late hours and then was continued the following morning. Not surprisingly, Judge Landry denied every motion and objection I made, including one that he disqualify himself as being a member of the Citizens Party. The jury returned a verdict of guilty, and Judge Landry fined Newsweekly Newspapers, Inc. $250.00 on each of the 14 counts of the complaint, for a total of $3,500.00, which was paid.

I filed an appeal in the Albany County Court but did not immediately push the appeal forward. Two years later, when Albany’s affection for the Citizens Party waned, and there was some new blood in the Cohoes Democratic Party, I submitted a brief and finalized the appeal for the now-defunct newspaper. In June 1967, Albany County Judge Martin Schenck granted my appeal and reversed the conviction on the grounds that Section 330 was unconstitutional in violation of the right of freedom of expression. He ordered the fine returned.

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Reapportionment

I enjoyed the practice of criminal defense law. I was admitted to the New York bar on Thursday, November 3, 1963, and the next morning I received a call from the clerk of the Rensselaer County Court, telling me to report at 10:00 a.m. for a criminal assignment. That was prior to appellate court decisions and the passage of a law in New York that provided for payment of assigned counsel, and the county judge was always on the lookout for newly admitted attorneys to give “pro bono” assignments for the representation of indigent criminal defendants. Actually, I, like most newly admitted attorneys, welcomed the assignments because it provided immediate court experience, and we didn’t have to answer to a fee-paying client if we didn’t perform well. In 196_ New York enacted legislation that provided for the formal system for the defense of indigent criminal defendants, and Rensselaer County established the office of the Public Defender. In the event of a conflict of interest by the Public Defender, such as when there were multiple defendants who might blame each other for the crime, the courts would continue to assign individual attorneys, who were paid $10.00 per hour for each hour spent out of court, and $15.00 per hour for each hour spent in court in the defense of the client, for a maximum total fee of $350.00 in most cases, and $750.00 in capital cases.

The first Public Defender was Thomas J. O’Connor. Tom was an older attorney who had been the Troy Police Court Judge at one time and was a very effective criminal defense attorney. He was given two part-time assistants, Jim Reilly and John Burke, both of whom had been assistant district attorneys when the office was under the control of a Republican district attorney, but who had lost their jobs when M. Andrew Dwyer, a Democrat, was elected to that office. I had become quite friendly with Tom from the time I started practicing criminal law in 1963. (When I first came to Troy Police Court, he referred to me as “the Jewish kid from Fox’s office.) During those early years, Tom was my informal mentor. After Tom was appointed Public Defender, I let it be known that I would like to join his part-time legal staff if a position became available.

Rensselaer County was governed by a Board of Supervisors, as were most upstate counties. New York’s County Law provided that the Supervisor from each town and the Supervisor from each ward in the cities in the county constituted the Board of Supervisors. All members were part-time elected officials who served two-year terms, and the majority party elected one of their members to be Chairman and appointed the Clerk of the Board. Unlike the members, the Clerk was a full-time employee who ran the day to day operation at the direction of the Chairman.

Although the Board of Supervisors was traditionally under the control of the Republican party, their majority was dwindling. The Democrats had gained strength and elected Supervisors even in traditionally Republican towns, including my family’s home town of Nassau. My uncle, Harry Honig, had been a Justice of the Peace for several years there, and subsequently was elected Supervisor. When he retired, he was followed by Earle Cooper, an attorney. Earle was defeated for re-election by Sylvester “Whitey” Currier, the first Republican to be defeated for that office since his father, Ralph Cooper, was defeated decades before. Whitey was very popular. The Curriers were an old Nassau family, and Whitey was smart and very likable. He had been a pilot during World War II, and when his P-47 fighter developed mechanical problems in the Boston area, he rode it down to a crash landing in a wooded area to keep it from falling into a populated area. 

One day Tom called me into his office and said that Joe Casey, the Republican County Chairman, wanted to get Nassau back under Republican control, but the party had no candidate that he believed could defeat Whitey Currier. Joe felt that the only chance to win the office back was to run my uncle Harry against Whitey, but Harry was quite adamant that he had retired from politics, and besides, Harry liked Whitey. Tom told me that Joe had asked me to intercede with Harry and if I could persuade Harry to run and the Republicans maintained control of the Board of Supervisors, Tom could appoint me as an assistant public defender the following January, when appointments were made for two-year terms. I went to Harry, and he reluctantly agreed to be the candidate for my sake. He won the election.

On the morning of January 5, 1968, Tom presented me with a letter appointing me to the office of an assistant public defender. I brought it to the County Clerk, who swore me in, and I signed the Oath of Office book. The Troy Record photographer took a photograph of me being sworn in by the County Clerk, with Tom looking on. I went to the Public Defender’s office and filled out the usual employment forms for tax withholding, health insurance, and the retirement system. Later that afternoon I received a telephone call from Lenore Coleman, Tom’s confidential secretary. Lenore said that there was a problem, and my appointment had to be put off for a few days until the Board of Supervisors amended the budget to appropriate funds for my position. I was very disappointed, but Tom told me that it was an oversight, and the Board of Supervisors would make the appropriation at its next meeting.  My oath of office that I executed that morning was covered over with another oath of office, carefully scotched tape over mine.  (During January 2020, I went to the bowels of the Rensselaer County Clerk's Office and found the 1968 Oath of Office book.  Ironically, my oath had been covered over with the oath of James Reilly, who later became my law office associate.  The scotch tape had dried out, and when I opened the book the two oaths were uncovered. )

The Board of Supervisors met a few days later but didn’t make the appropriation. Tom was very upset and said that he was told that I should take John Burke’s place. We both agreed that it wouldn’t be proper for me to replace John, and that had not been part of the arrangement. Tom reported that back to the Republican hierarchy and said that he was told that the appropriation would be made in February. Before the February meeting, however, Seymour Fox, the attorney with whom I was associated, told me that his friend, Dr. Carl DeLucia, told him that I was not going to get the job. Dr. DeLucia was a close friend of Dean Taylor, a former Republican County Chairman and Representative in Congress. The reason, I was told, was that I had incurred the wrath of Dr. Richard Drumm, the Schodack Supervisor. We moved to Schodack in 1964. At first, Nedda and I became active in the local Republican organization. I even incorporated the Schodack Republican Club, Inc. in 1966, and Nedda and I were charter members. The problem began when I was retained to represent an elderly man who lived in a mobile home on a lot that he owned. The town board passed an ordinance that required mobile homeowners to get a special permit and pay a fee in addition to real property taxes. The town building inspector charged my client with a violation of the ordinance for not having a permit, a criminal offense. I demanded a jury trial, and the jury convicted him, following the justice of the peace’s directions. The town board was upset, because a jury trial was expensive, and I said that I would represent anyone else that they prosecuted for a similar offense without fee, and would demand a jury trial in each case. The town stopped enforcing the ordinance by criminal prosecution, although most mobile homeowners complied and paid the fee anyway. The Schodack Republicans were also very upset with me for representing two party members who challenged the party regulars in the 1967 primary election, even though my clients failed to win the primary.

The practice was that the County Republican Chairman would ask for the approval of a proposed appointee by the appointee’s local Republican chairman. In my case, the approval was not forthcoming because of my defense of mobile homeowners and for representing the primary challengers.

I was angered and frustrated, as I had considered the appointment to be a sure thing since Harry agreed to run, and there were to have been no other strings attached. I knew that I had no legal recourse, although I probably could have salvaged the position had I gone hat in hand to Dr. Drumm and said that I would no longer defend trailer owners charged with violation of the town ordinance, and generally fall into line with the town Republicans.

All New York appellate court decisions and lower court decisions of interest were published by the official court reporter. To subscribers of the hardcover books, the official reporter would mail the “Advance Sheets”, the softcover advance copies of the decisions. These came out two or three times a month, and it had been my habit to bring these home to read as a method of keeping current on New York law. I would usually skim all of the cases, even in areas of the law in which I had little interest. I recalled having read a decision from one of the Long Island counties in which the subject matter involved the equal representation of voters in local legislative bodies. I believe that it was called Greenberg v. Board of Supervisors. That New York case was based upon a United States Supreme Court decision, Reynolds v Sims, which mandated “one man, one vote” for legislative representation. From my brief reading of that decision, I knew that Rensselaer County Board of Supervisors, like most county legislative bodies in New York, did not measure up to the one man, one vote standard, as it was created under Section 150 of the County Law which prescribed that the board consisted of the Town Supervisor of each town in the county, plus the Supervisors elected in each ward of the cities.

I realized that I could have my revenge! There were no form books to guide me in the preparation of documents for the litigation, so I started going to the New York State Law Library, which maintained a copy of every appellate court record on appeal. A record on appeal consists of all of the legal documents and lower court decisions in each case. I photocopied the record on appeal of the Greenberg case and a couple of other cases that had followed it and made my own manual. I needed a plaintiff; someone with standing to bring the lawsuit against the Board of Supervisors. The ideal plaintiff was my wife, Nedda. The town of Schodack had a large population compared to the very rural towns in the county, such as Stephentown, Grafton, and Petersburg, but each of the towns had one elected representative on the Board of Supervisors. I told no one of my planned litigation, hoping that the politicians would yet honor the commitment that I had been given. There was a little movement; although Tom O’Connor continued in his efforts to get the additional appropriation to hire me.

For a couple of weeks, I spent every evening typing pleadings. Finally, just before the March meeting of the Board of Supervisors, I completed the summons, notice of petition, complaint, and petition, entitled:

STATE OF NEW YORK
SUPREME COURT COUNTY OF RENSSELAER
----------------------------------------------------------------------------------
NEDDA R. HONIG, on behalf of herself and all other persons
similarly situated,

                                                          Plaintiff - Petitioner

                              -against-

THE BOARD OF SUPERVISORS OF RENSSELAER COUNTY
and THE STATE OF NEW YORK,

                                                Defendants - Respondents.
------------------------------------------------------------------------------------

Nedda signed the complaint/petition, and I notarized her signature and made multiple copies of the pleadings. In those days, it was not necessary to file any papers with the court or the clerk before starting an action. The litigation sought a declaration by the New York Supreme Court that the Board of Supervisors was improperly apportioned; that under County Law Section 150, insofar as it mandated the structure of the Board of Supervisors, was unconstitutional, and directing a reapportionment of the Board of Supervisors consistent with the “one man, one vote” precedents.

On my 30th birthday, March 12, 1968, I went to see Jack Manning, the full-time Clerk to the Board of Supervisors. I asked him if there was a resolution on the agenda for that evening’s monthly meeting to appropriate funds to enable the Public Defender to hire an additional part-time assistant. Jack was a former Troy police officer who had been appointed Clerk after his retirement from the police force. He was a decent guy and seemed genuinely embarrassed to tell me that the resolution was not on. I handed Jack the pleadings and told him that it was a present from me to the Board.

The next morning the clock radio woke us up, as usual, to the 6 a.m. news on WGY. The news broadcast started with Dick Beech announcing that “a Schodack housewife has sued the Rensselaer County Board of Supervisors complaining that she is not properly represented...”

The result was interesting to observe. At first, the politicians considered the lawsuit to be just an irritant, as local governments frequently are sued by residents whose claims are dismissed as meritless. It did not take long, however, before all realized that my lawsuit created a new dynamic in Rensselaer County politics. The Republicans, who for many years maintained control of the Board of Supervisors, realized their vulnerability; the Democrats, who had gained some vitality by electing some candidates to county offices in the Goldwater year, sensed an opportunity.

The initial court appearance was before T. Paul Kane, a Supreme Court justice from Schoharie County, who had been assigned to preside in Rensselaer County for the month. Judge Kane, a former district attorney, was a Republican. He was a tall man with silver hair and an even demeanor. The Board of Supervisors was represented by the County Attorney, James T. Ronan. Jim, like all Rensselaer County Attorneys until 1984, held the office on a part-time basis. He was a member of Wager, Taylor, Howd, and Brearton, a prominent Troy law firm, one of whose members, Dean Taylor, was the local representative to Congress, and a former Republican County Chairman. Although the State of New York was officially represented by its Attorney General, Louis Lefkowitz, a Republican, the Assistant Attorney General assigned to the matter was Robert W. Imrie, an older attorney who represented that office in all prior reapportionment cases, and who was generally considered to be the most knowledgeable reapportionment attorney in the state. Mr. Imrie’s legal position was consistent with mine, which he made clear to Judge Kane during the oral argument. The Democrats intervened in the lawsuit. The minority Democratic leader, Joseph Manupella, was represented by Thomas Kenny, and while their position favored reapportionment because they could not get control under the existing law, they always proposed reapportionment plans that would be most helpful to their candidates.

Once it was clear to the Republicans that there would be reapportionment, they sought to comply by offering a plan of weighted voting. Under their plan, the Board of Supervisors would continue, but each Supervisor would have the number of votes corresponding to the number of voters in their district. They hired an expert from Columbia University to prepare an analysis of the weighted voting plan for the Court, but Judge Kane rejected the plan and directed the Board of Supervisors to devise a plan for the creation of a County Legislature to be elected in the 1969 election.

Several plans were drawn up and submitted to the Court, which finally selected a 15 single-member district plan that I had submitted. Judge Kane’s selection of the plan was upheld by the Appellate Division as an interim plan only. The Republicans were furious since the town Supervisors wanted to continue as members of the County legislative body as well as being the head of their town governments. They had the County Attorney prepare a local law that would permit the Supervisors to also be members of the County Legislature, the so-called “two hats” law. I told Jim Ronan that if they passed the law, I would immediately bring another lawsuit to declare it illegal as being in violation of the Public Officer’s Law. I believe that Jim got an oral opinion from Robert Imrie that if any Supervisor were also elected to the County Legislature, he might forfeit the first office when he took the oath of office for the second one, and Jim convinced the Board of Supervisors to give up on that plan.

The Democrats were elated. County Court Judge Timothy Fogarty called me to his chambers and asked if I would run for the County Legislature from the new district that included Schodack as the candidate of the Democratic party. I told him that I would not, as I was a Republican, albeit a disenchanted one. A few days later, he brought me back to convey that the Democratic County Chairman, Edward McDonough, said that if I wanted to run as an independent candidate, the party would fund my campaign. Again, I declined.

The Democrats won control of the first County Legislature. Before the election, Joseph Casey, the Republican County Chairman, was indicted following a lengthy investigation into corruption by the State Commission of Investigation. The Republican party was in disarray and turned to Raymond Siek in 1970 to take over the county committee and cleanse its image. Ray was the manager of Ford Motor Company’s Green Island factory. He had no background in politics, but he had an unblemished personal reputation. He accepted the job with the understanding that he was going to be the absolute boss. He enlisted his top aide at the Ford plant, Nicholas Pinchuk, to work with him, and for several months Nick spent much more time working for the Rensselaer County Republican Committee than he did for Ford.

A few weeks after Ray took over the party, his secretary telephoned me and asked if I would meet him and Nick for lunch at the Troy Holiday Inn. (The Holiday Inn was also the location of the Republican Party Headquarters). I agreed, and he told me his plan to clean up the party. He asked me to help by writing new by-laws for the organization, and when I agreed he installed me as vice chairman for legal affairs. As a token of appreciation, he provided me what was then a party chairman’s “perk”, namely my MIH vanity license plate, which I kept until I moved to Florida in 2003. (It was not until several years later that vanity plates became available for purchase by the public in New York).

With control of the new County Legislature, the Democrats drafted a new legislative reapportionment plan based on the 1970 census and required by the Court.  At the request of Ray, I drew up a couple of different plans which favored the Republicans.  The matter came on before Judge Kane again, and he disallowed the plan submitted by the Democratic County Legislature and ordered one of my plans to be used for the 1971 election.  The Democratic County Attorney, Bill Jubic, appealed to the Appellate Division of the Supreme Court, which affirmed Judge Kane's decision.  Mr. Jubic then appealed to the Court of Appeals, the highest court in New York.  This was my first oral argument in the Court of Appeals.  The evening before the oral argument, Nedda and I took down 2 roll-up window shades from our home and pasted "exploded" views of the different plans on the shades, which rolled up like scrolls.  I unveiled them before the Court, whose members seemed both amused but impressed.  The Court of Appeals affirmed the lower court's decision. The Republicans, reinvigorated by Ray Siek and the new legislative districts, took back the County Legislature in the November 1971 election by a slim 1-member plurality, and I was appointed County Attorney, a part-time office I held until the mid-1980s when I resigned because of the press of my private practice.  

Although the election was over and the Republicans took over the County Legislature, the Court still retained jurisdiction because the law required that the plan be adopted by a formal local law. The Democrats, out of office, but still being an intervening party in my reapportionment lawsuit, brought it back before the Court with the intention of having a new districting plan ordered for the 1973 election.  We all then realized that I was still the attorney for the plaintiff (Nedda), and as County Attorney had become the attorney for the defendant County Legislature, the successor to the Board of Supervisors. The conundrum was resolved when I advised the Court that “I discussed the situation while in bed with the plaintiff last night, and she gave me permission to withdraw.” Papers were signed in which I ceased representing Nedda, who continued in the lawsuit “pro se’”,  technically representing herself. 

Prior to the 1971 election, the County Legislature adopted a local law providing for a county executive to be appointed by the County Legislature, similar to the form of government in effect in the City of Troy, which was dominated by the Democrats.  The local law was subject to a mandatory referendum, which was defeated, probably because of the history of failed appointed city managers in Troy.  With a bi-partisan commission, I drafted a new county charter proposal that differed from the failed law.  The new plan provided that the chief executive officer would be elected at large in the County, and this plan was approved by the voters.  The Democrats nominated a prominent Troy politician for the office, but the Republican candidate, William J. Murphy won handily.  (It did not hurt his candidacy that he lived in a Republican town, and was half Irish and half Italian, the two largest ethnic groups in Troy)  The Republicans have never since lost control of the office of County Executive or the County Legislature.  

Notes:  Now that so many years have passed, there is no harm in telling that Mr. Murphy was not Ray Siek's first choice to be the first County Executive candidate.  At Ray's request, I approached the late Edward "Ned" Pattison, a lawyer from a prominent family, and asked if he would run for the office as a Republican.  Ned, a Democrat, had been elected to Congress during the Goldwater Year, and after losing his bid for re-election to Congress was elected County Treasurer.  Ned declined and asked me to thank Ray for the offer.   

When the control of the county legislative body changes, the successful party generally installs its own party members in non-civil service positions.  When the Republicans regained control of the County Legislature and I was appointed County Attorney, among the Democrats they intended to replace, was Whitey Courier, who was in charge of the Tax Mapping Department.  Soon after I was admitted to the bar in 1963, Whitey, then the mayor of the Village of Nassau, appointed me as the Village Attorney.  To return the favor, and perhaps because I was partly responsible for his election defeat by my uncle, I insisted that he not be replaced by a Republican, and he continued in that position until his retirement.