The ‘Mother Court’ Has a New Matriarch

     MANHATTAN (CN) — Self-assured like the Broadway actress she once aspired to be, New York’s new chief federal judge, Colleen McMahon, said she has questioned only one of her rulings in two decades on the bench.
     It is a remarkable expression of confidence for any veteran jurist, let alone one with McMahon’s record of leadership. The Buckeye State-born redhead was formally inducted on June 1 as chief judge of New York’s Southern District.
     Sitting for a 90-minute interview in chambers to discuss her ascension, McMahon exhibited flashes of former theatrical ambitions from her high school days.
     McMahon was still in private practice in the early 1990s when she received an unexpected lunch invite from the ceiling-cracking judge in whose steps she would follow.
     By that time, New York Court of Appeals Justice Judith Kaye already had risen higher than any other woman in the state judiciary. She would later become New York’s first female chief judge.
     McMahon had been a partner at Paul, Weiss, Rifkind, Wharton & Garrison at the time. She counts the commission Kaye tapped her to lead as ushering in her “signature accomplishment” — the overhaul of jury service in the state of New York.
     During her account of the project’s beginnings, McMahon broke into several impressions of Kaye — one of the most renowned justices in New York history.
     Once the state’s highest court named Kaye its chief, she held on to that position for 14 years, longer than any of her male predecessors.
     Apparently Kaye had been approached by a frequent would-be juror. “Why do I keep getting called for jury duty and my next-door neighbor never does,” she asked. “Would you figure that out?”
           The Jury Project, a 30-member commission that McMahon chaired, ultimately produced 82 recommendations, including streamlining summonses, increasing juror compensation, limiting peremptory challenges by lawyers, banning mandatory sequestrations and ending professional exemptions.
     New York’s Legislature approved nearly all of them, and signs of their success are still evident. McMahon herself got called for jury service last year because of her exclusion-eliminating work in 1995.
     McMahon credited Betsy Plevan with steering the commission away from making an exemption just for judges. “If you do that, the camel’s nose is under the tent,” said Plevan, who would later become the New York City Bar Association’s second female president.
     “There actually has been a cultural change,” McMahon said of the state’s jury system.
     “The jurors are treated nicely. The room is clean. There is an effort made to make the process move as quickly as it can move.”
     The View From the Judgment Seat
     McMahon spent her next three years at New York Court of Claims, a far different environment from her 25th floor chambers at the immaculate Daniel Patrick Moynihan Courthouse.
     “There’s a nitty-gritty realness to [state courts],” she said. “Everything is beautiful here. And majestic. A little — sterile is probably a bad word — but it’s down and dirty over there. There’s a realness to it that many people find off-putting.”
     The remark holds more than a little nostalgia.
     “Maybe it’s the way that I imagine courts used to be, when bailiffs set up in the shadows of cathedrals, and clerks came around the pillars to notarize things, and justice was dispensed under a tree,” McMahon said.
     McMahon got her nomination to the federal bench three years later from President Bill Clinton.
     “On Sen. D’Amato’s recommendation,” she hastened to add, referring to the former Republican from New York.
     “I’m very proud of the fact that you could tell nothing about my politics by the way that I got onto the bench,” she said.
           A federal appointment marked the beginning, in McMahon’s words, of her “monastic life.”
     In fact, she explicitly compared district judges to monks in a Missouri Law Review article a decade ago.
     “Monks live solitary lives in community,” she wrote. “So do district judges. All the judges in a single district constitute ‘a court,’ but that is something of a misnomer. Unlike our colleagues on courts of appeals, district court judges operate entirely independently.”
     McMahon’s habitual use of religious imagery betrays her Christian faith, the inspiration for her book, “The View from Gabbatha.”
     Calling the book more of an “intellectual exercise” than a “legal tome,” McMahon said its title comes from a play on words.
     “Gabbatha is the Hebrew word for the ‘judgment seat,'” she notes. “It was a very notorious judgment seat, as I point out.”
     The Gospel of John describes Gabbatha as the site where Pontius Pilate could not charge Jesus Christ with an offense, but ultimately yielded to the demands of the angry crowd for his condemnation.
     Taking out a copy of the book, McMahon turned to a page where a page is crudely redacted with the word “CENSORED.” She said that page had to be taken out because the passage described a case that had been ongoing, involving a young man indicted after struggling with officers who tried to usher him out of the courtroom for protesting his mother’s treatment.
     McMahon compared the case to Akira Kurosawa’s “Rashomon,” a film famous for retelling the same incident from the subjective points-of-view of several different characters.
     “The point of it was that the exercise of trying to find the truth in the courtroom is a very fraught exercise,” she said.
     The Haunting Case of Mr. Cromitie
     And for McMahon, no exercise has been more fraught than presiding over a case that came to be known as the Newburgh Four.
     “It’s the only case where I second-guess myself,” she said.
     In upstate New York’s poverty-stricken city of Newburgh, a grifter named James Cromitie crossed paths with a man offering him $250,000, a BMW and other rewards. In return, Cromitie would have to blow up a Bronx synagogue and shoot down military planes at Stewart Air National Guard Base.
     Cromitie did not realize at the time that the man, a Pakistani ex-con named Shahed Hussain, was an undercover FBI informant.
     For eight months, Cromitie resisted the lure of his would-be FBI benefactor until his finances took a turn for the worse. The informant then goaded Cromitie to bring three other men into the plot, and the FBI provided them with inert weapons of mass destruction.
     The men claimed entrapment after the bust, but a federal jury rejected that defense.
     Grappling over whether to overturn the verdict, McMahon sparked headlines when she let the prosecutors know about her outrage over the FBI’s tactics.
     “I am not proud of my government for what it did in this case,” she said in a September 2011 hearing.
           The law of entrapment, however, requires a lack of predisposition to commit the crime, and McMahon found that Cromitie and his co-defendants seemed all too eager to maim, kill and destroy their targets.
     Roughly 100 hours of videotaped conversation captured Cromitie’s murderous hatred toward Jews, to whom he attributed “every evil in the world.”
     “I’d like to get one of those,” he boasted. “I’d like to get a synagogue. Me, yeah, personally.”
     In Cromitie’s anti-Semitic rhetoric, McMahon heard an echo from the Book of Job.
     “His own words condemneth him,” she wrote of Cromitie in an amended ruling.
     The weapons-of-mass-destruction charges against the men, stemming from the fake arms that the FBI provided, carried a 25-year minimum penalty.
     McMahon upheld the charges, but she refused to go any higher. She said she still wonders whether she made the wrong call as to Cromitie, who she noted was the only one of the four subjected to a long campaign of inducements.
     “I felt, as I think trial judges do, the need to defer to the collective wisdom of the jury,” she said.
     A Second Circuit majority agreed with McMahon’s decision, but the federal appeals court’s chief called to overturn Cromitie’s sentence in a stinging dissent.
     “It is clear that Cromitie in his unmolested state of grievance would (for all the evidence shows, and as the district court found) have continued to stew in his rage and ignorance indefinitely, and had no formed design about what to do,” Chief U.S. Circuit Judge Dennis Jacobs wrote in 2013.
     That dissent continues to gnaw at McMahon, three years later.
     “I was outraged by the government’s conduct in that case,” she said. “I was very public about it, and yet I didn’t overturn the verdict. And somebody who I respect and admire greatly thought I was wrong not to overturn the verdict. And I thought about that a lot, even though two other people who I respect and admire greatly did not have the same reaction.”
     Cromitie, who is locked up in a federal prison in Pennsylvania, reached the end of his appeals when U.S. Supreme Court refused to hear his case in 2014.
     Appellate courts tend to be deferential toward the courts they review, and McMahon said she wonders if overturning the verdict would have provoked a different outcome.
     “It’s the only case that I feel that way about, including cases where I’ve been reversed,” she said. “It’s the only case where I genuinely wonder what would have happened if I had come out the other way.”
     Glass Ceilings Underneath the Bench
     Older than the Supreme Court, the Southern District of New York is sometimes called the “Mother Court” and the “sovereign district” because of its reputation for self-rule from Washington.
     In that sense, McMahon is an appropriate public face for the court’s new chief.
     Both of her most recent predecessors in the position have been women: U.S. District Judges Loretta Preska and Kimba Wood.
     Still, McMahon said, federal judges know better than most that the struggle for equality in the legal profession is far from over.
     “I have not had a single major case — commercial case, civil case — in which a woman was first chair, that I can remember,” she said.
           Around the time of the Jury Project, McMahon also wrote the introduction to a Fordham Law Review article titled “Glass Ceilings and Open Doors: Women’s Advancement in the Legal Profession.”
     McMahon said much has changed since that time, but the most “visible remnants” of that ceiling remain.
     “I can think of two or three women trial lawyers who are known at the highest levels,” she said. “But everyone else is a bag-carrier, and I don’t understand that. Because frankly, it’s not like some of the men are such brilliant trial lawyers. I’d like to see more of the women at the big firm level — in that stratum of the profession.”
     Four floors down from where McMahon leads the court is the office of the man who used to be her guru: U.S. District Judge Lewis Kaplan, her former colleague at Paul Weiss.
     “He unquestionably is my mentor,” McMahon said of Kaplan. “Without question.”
     Getting used to being called “chief,” she said, is even more of an adjustment from “when your first name becomes judge.”
     “Somebody said that you never make another friend after you become a judge, and that I have not found to be true,” she said. “But it certainly becomes more difficult.”
     Both McMahon and Kaplan are known for using their cutting wits against the defendants and lawyers who appear in their courtroom.
     McMahon described Cromitie, for example, as a man “whose buffoonery is positively Shakespearean in its scope.”
     In a Freedom of Information Act case, after the Newburgh Four, McMahon famously criticized federal secrecy laws as a landscape straight out of “Alice in Wonderland” and “Catch-22.”
     Before throwing the book at a serial art thief five years ago, she made a point to tell the defendant that he had stolen a work by her favorite artist.
     “My favorite painting in the world is by Corot,” U.S. District Judge Colleen McMahon told 11-time-convicted felon Thomas Doyle. “It hangs at The Frick.”     
     Although McMahon did not tell the man so at the time, that painting was called “The Lake,” and she could not find the painting on display during her last visit.
     “I’d like to see it again before I die,” she said, believing that The Frick took the work out of display.
     A spokeswoman for the Upper East Side museum assured Courthouse News that the judge has plenty of time: “The Lake” has not gone anywhere.
     Finding time for the pleasures in life is more difficult for McMahon these days. One month into the position has filled the chief judge’s datebook already with bar functions, court events and memorial services to attend. That has put a crimp on her social calendar, and particularly, her obligations to multiple chamber choirs where she signs.
     “Now, from where I sit, it’s the perfect time to think ahead 10 years,” she said. “I’m a long-range planner by nature. I think every working mother is a long-range planner by nature.”
     McMahon started taking voice lessons in her 50s, and she is now learning how to balance work with her other passion at age 64.
     “Whether I have to cut it out altogether or just cut back, I don’t know, and I haven’t seen voice teacher in six months, which is a problem,” she said.
     The judge’s last two words trail off into a sing-songy voice that reveals that, while McMahon has left the theater, the stage has not fully left her.

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