Over Progressive Opposition, Conservative Prosecutor Confirmed to 14-Year Term on NY’s Highest Court
Last week I wrote about New York Governor Andrew Cuomo’s efforts to install a traditional, tough-on-crime prosecutor to the Court of Appeals, New York’s analog to the United States Supreme Court. Earlier this week, former Hon. Madeline Singas, formerly Nassau County District Attorney, was confirmed to a 14-year term in what appears to be the first seriously contested Court of Appeals appointment since the state adopted its judicial appointment process in the 1970’s. As I described in my previous piece, Hon. Singas’s confirmation to a seat on the Court of Appeals will likely move the already-conservative court further to the right. Nevertheless, the opposition to her confirmation was fierce and came surprisingly close to derailing her nomination, which suggests that Governor Cuomo should think twice if he wants to appoint another conservative when the next scheduled vacancy arises later this year.
Opposition Coalesces
Since I last wrote, a considerable grassroots organizing effort arose to ask lawmakers to oppose Hon. Singas’s nomination. Activists prepared an open letter to Senate Democrats opposing the nomination, which ultimately garnered the signatures of over 1,000 New Yorkers. A group of law professors, including many luminaries in the state’s criminal law legal community, delivered a similar letter. The opposition was notable enough to garner attention in local and national news outlets, which created something of a feedback loop. These appointments typically slide underneath the radar, but as more people became familiar with the nomination and its likely ramifications, more and more people became (understandably) outraged, which in turn led to even more pressure on lawmakers. In the days and hours leading to the confirmation hearing, six Democratic State Senators announced their opposition to the nomination, including five who issued a blistering joint statement opposing the nomination.
Allegations of Misconduct
The morning of the confirmation hearing, allegations emerged that as an assistant district attorney in Queens, Hon. Singas had played a role in wrongfully concealing evidence in a high profile case. George Bell, Rohan Bolt, and Gary Johnson were convicted of murder in 1999 and 2000 and spent decades in prison. They were exonerated and released earlier this year after attorneys discovered that prosecutors had failed to turn over exonerating evidence specifically requested by the defense, and lied about its existence, in an outrageous exercise of prosecutorial misconduct.
To explain in a bit more detail, Messrs. Bell, Bolt, and Johnson were accused of murdering a check-cashing clerk and off-duty police officer in a 1996 incident. One of the lead prosecutors in that case was A.D.A. Charles Testagrossa, the head of the Career Criminal / Major Case Bureau in Queens. The court opinion ordering the trio released this year describes in great detail Mr. Testagrossa’s egregious misconduct. To summarize, in 1997, there were newspaper reports suggesting that the murders may have actually been committed by members of the “Speedstick Gang.” Following these reports, attorneys for the trio specifically requested that the prosecutors turn over any evidence in their possession implicating the Speedstick Gang. Multiple police reports implicated the Speedstick Gang of murdering the clerk and off-duty officer, and several pages of notes, handwritten by Mr. Testagrossa himself, indicated that prosecutors believed the murders to have been committed by the Speedstick Gang, not the trio of defendants facing murder charges. These notes and reports were in a folder related to cases brought against members of the Speedstick Gang. Rather than produce this vital evidence, the prosecutors lied to the court: telling it that no evidence connecting the murders to the Speedstick Gang existed. It was not until decades later that these notes and reports were unearthed, and ultimately led to the trio’s exoneration.
How does Hon. Singas fit into this? Well, she was in the Career Criminal / Major Case Bureau around this time (which meant that Mr. Testagrossa was her boss), and, in 1999, she was involved in the prosecution of one of the members of the Speedstick Gang. In that case, Hon. Singas had access to the police reports that ultimately exonerated Messrs. Bell, Bolt, and Johnson. Indeed, in discovery in her case, Hon. Singas herself turned over to the defense attorney these very police reports. But, when she turned over this evidence, Hon. Singas redacted the paragraph linking the Speedstick Gang to the high-profile murders. Hon. Singas was clearly aware of the contents of these reports (after all, she was the one who redacted them). Moreover, given the murder case was extraordinarily high profile and were being handled by her boss, she was surely aware of the implications of the information she was redacting. By redacting this information, she ensured that evidence of the trio’s innocence remained wholly within her bureau’s control. And she did not speak out in the decades since, as the trio remained wrongfully behind bars.
Nobody involved in these wrongful prosecutions faced consequences until this year. Instead, in a culture where justice meant winning a conviction, regardless of a defendant’s actual culpability, those involved in this travesty continued their upward trajectory. One prosecutor heavily involved, Brad Leventhal, was eventually promoted to lead the office’s Homicide Bureau. He resigned in the wake of this scandal. Hon. Singas eventually rose to become District Attorney of Nassau County. There, she hired Mr. Testagrossa into a leadership position. When Messrs. Bell, Bolt and Johnson were exonerated earlier this year in a truly astounding court decision that excoriated Mr. Testagrossa for misconduct, Hon. Singas did not fire Mr. Testagrossa. Instead, he was allowed to resign, which as best as I can tell, just means that he gets to keep his pension. And on the day Hon. Singas’s (admittedly lesser) role was brought to light, she won the promotion of a lifetime, a 14-year term on the state’s highest court.
The Confirmation
Hon. Singas was confirmed on June 8, only 14 days after her nomination had been announced, and only hours after public allegations of her involvement in severe prosecutorial misconduct had arisen.
The first hurdle Hon. Singas needed to clear on that day was a hearing in front of the Senate Judiciary Committee. Activists had hoped that the committee would present a significant obstacle to her confirmation because the committee was chaired by a self-styled progressive, Despite public pressure in the week leading to the hearing. Sen. Hoylman, who had remained silent in the days leading to the hearing, did not do anything to slow or impede the nomination. The only serious obstacle during the hearing came not from him, but from Sen. Alessandra Biaggi, an outspoken Cuomo critic. Sen. Biaggi pressed Hon. Singas on her connection to Mr. Testagrossa’s prosecutorial misconduct and Hon. Singas admitted that she had, as part of the prosecution of the member of the Speedstick Gang, redacted the police reports that eventually were used to exonerate Messrs. Bell, Bolt, and Johnson. Hon. Singas further claimed that, if she redacted reports, she was aware of their contents. Taken together, this confirmed the reporting earlier that day that she had played a role in concealing evidence of the innocence of three New Yorkers who spent decades wrongfully imprisoned.
When the committee voted, only Sen. Biaggi opposed the nomination. Sen. Hoylman, along with one other Democrat, voted “no recommendation,” which was functionally no different from voting “yes.” The member of the committee most known for speaking out on racial justice and criminal law, Sen. Zellnor Myrie, did not ask pointed questions of Hon. Singas at the hearing, then left it once he was done asking questions and skipped the vote altogether.
The vote of the full Senate took place only hours later. Several Democratic Senators gave impassioned floor speeches imploring their colleagues to reject the appointment. Several Republicans noted their opposition to all of Governor Cuomo’s judicial selections (including a number of appointments to lower court positions) on the grounds that the nomination process had been rushed to the point that the nominees had not been properly vetted (hey, a stopped clock is right twice a day). These Republicans also parroted talking points distributed by activists, arguing that the Senate should not confirm Court of Appeals judges while there was an active impeachment investigation, because judges on the Court sit as jurors in impeachment trials. Perhaps recognizing that the vote to confirm her was in some doubt, and that she would likely be an ally of conservatives once on the Court, at least one Republican voted no on all of Governor Cuomo’s judicial picks except Hon. Singas.
The final Senate vote was 38–25, with 10 Democrats voting against her confirmation. One of those 10 was Sen. Hoylman, who as chair of the Judiciary Committee had real power earlier in the appointment process to stop or slow the nomination, but waited to record his opposition until a fairly certain vote in the full Senate.
Moving Forward
The confirmation of a third former prosecutor to the Court of Appeals represents a significant setback for those trying to address systemic inequality and injustices in the criminal penal system in New York. Infuriatingly, many of the exact same politicians who failed to take a stand against Hon. Singas’s appointment have touted their progressive bona fides these past two weeks as the Senate passed a multitude of progressive laws (many of which are excellent!), seemingly unaware that by failing to use their power to shape the judiciary, these lawmakers have created conditions that threaten to undermine their own hard-won legislative accomplishments.
Still, there are reasons to be optimistic. The reaction against Governor Cuomo’s attempt to install a conservative onto the state’s highest court was so intense that Senate Democratic leadership apparently had to furiously whip the vote behind the scenes to retain enough Democrats to avoid having to rely on Republican votes (which were largely uncertain prior to the vote itself). This suggests that quite a few Democrats, in addition to the 10 who voted “no,” had concerns or misgivings about the appointment. Even though Hon. Singas was ultimately confirmed, the mere fact that there was a serious fight over it should prove valuable moving forward. Legislators who might previously have considered the judiciary an afterthought (remember, there had been no serious opposition to a judicial appointment in decades) have now been familiarized with arguments that the ideological balance of the state’s highest court matters significantly, and have been put on notice that many activists and constituents care deeply about it. Moreover, over the coming months and years, these activists will be able to connect any regressive ruling issued by the Court of Appeals to this confirmation fight, and to vacancies to come.
The next vacancy on the Court of Appeals will be later this year. Unfortunately, unless either of Governor Cuomo’s newly-confirmed appointees surprises observers, the ideological balance of the Court will not flip even if he appoints a progressive. But, if the Senate makes clear to Governor Cuomo that it will not accept another conservative, it can ensure that the conservative majority does not expand beyond 4–3, which means that when the next vacancy arises (upon the mandatory retirement of the conservative chief judge in 2025), there will be another opportunity to shift the ideological balance of the Court away from conservatives.
