Judicial Reports: Justice Plays Detective

By Leah Nelson
lnelson@judicialstudies.com
Posted 04-30-08

When Governor David Paterson chose Justice Joseph Fisch to serve as the State's Inspector General, he was reaching back across more than a quarter century of personal history. 

In 1982, Joseph Fisch hired David Paterson for his first job out of law school. The freshly minted JD was still untested, but Fisch, who as Chief Assistant District Attorney in Queens was on the hunt for new blood, recalls that he was sure about his choice.

“I saw this very talented young man who had this very rare combination of the ebullient enthusiasm of youth with a wisdom beyond his chronological age,” says Fisch.

Fisch left Queens in 1984, but he always remembered Paterson, extending both job offers and friendship to the up-and-coming politician whenever the opportunity presented itself.

Paterson has come a long way since his days at the Queens DA’s office. And as New York’s new Governor assembles a team of top aides to replace those tainted by the scandals of the Spitzer administration, it’s clear that he hasn’t forgotten his long-time ally.

On April 22, Paterson announced that Fisch, now a Bronx Supreme Court Justice in the Criminal Term, would replace Kristine Hamann as State Inspector General. Hamann resigned earlier this month amid accusations that her office had been less than vigorous in its probe of then-Senate Majority Leader Joe Bruno’s allegation that Spitzer had used state troopers to collect information for a smear campaign against him.

As Inspector General, Fisch will oversee a budget of some $7 million and a staff of 70 that includes lawyers, investigators, auditors, and analysts. The office is charged with investigating complaints about people and entities that work for the state and do business with the state. If it finds evidence of criminal activity, the office makes a referral to the appropriate prosecutorial body.

The Inspector General reports to the Governor's office and makes a salary of $155,200.


Though he reportedly danced the hora at Fisch’s daughter’s wedding, Paterson can point to plenty of objective reasons to support his choice.

Fisch’s career in public service has stretched from a posting with the Judge Advocate General in Germany, where he worked for three years immediately after graduating Harvard Law School in 1956, to the New York State Commission of Investigation to prosecutors’ offices in both Queens and Brooklyn. As the Justice himself puts it, “I’ve been around the block.”
 
In 1971, serving as Chief Counsel to the State Commission of Investigation — which is statutorily mandated to probe “any matter concerning the public peace, public safety and public justice” — he put now-legendary whistleblower Frank Serpico on the stand to testify about corruption in the NYPD’s war on the narcotics traffic.

In the mid-1980s, he served as Special Counsel to the Metropolitan Transportation Authority, where he helped clear MTA President David Gunn of allegations that he had intentionally put off inspection of certain Japanese-made subway cars. Then it was on to a stint as Executive Director of the New York State Office of Professional Discipline’s Education Department, where he investigated “diploma brokers” who sold fake professional degrees.

In 1990, shortly after he took the position of Deputy to Brooklyn District Attorney Charles Hynes, Governor Mario Cuomo appointed Fisch to the Court of Claims. He was immediately made an Acting Supreme Court Justice and moved to the Bronx Criminal Term, where he has sat ever since.

Today, Justice Fisch is 75 years old and on his third certification. If he remained on the bench, he would be forced to retire at the end of 2009.

But setting aside that his new post will prolong his career, Fisch’s new position is right in character for a judge who, even after years on the bench, has never fully suppressed his urge to investigate matters for himself.


Fisch’s inner investigator emerged in full force while he was overseeing the 1998 trial of Juan Ortiz, who was convicted of second-degree attempted assault after repeatedly stabbing a medical technician in the chest. Though Ortiz had a lengthy New York criminal record, too much time had passed since his previous two violent felony convictions for the assault to count as the third act that would allow Fisch to sentence him under New York’s severe “persistent felon” law.

Or so lawyers thought. But Fisch conducted his own multi-state investigation into Ortiz’s past and found that the man had a record dating back to 1964. Between New York and California, he had been convicted more than 30 times, for robbery, wife-beating, and assault, among other things — and the most recent attack had come just a week after another Bronx judge put him on probation after he pleaded guilty to third-degree assault.

Fisch, citing his right to exercise discretion, gave him the 15-years-to-life sentence reserved for persistent felons.

Along with a chorus of others, the New York Post, which had already nicknamed Fisch “Judge Bulldog,” applauded his ruling. Legal Aid opposed it, but experts generally agreed that the severity was a permissible use of judicial discretion.

But Fisch wasn’t finished. From the bench, he proposed legislation that would have automatically made the likes of Ortiz a persistent felon for whom the stiff penalty would have been mandatory.

His proposal, the gist of which eventually passed, was taken up by politicians from both sides of the aisle. Among its most vocal supporters was State Senator David Paterson.

The Ortiz case wasn’t the first time that Fisch had come down hard on a defendant: As a jurist, he has a reputation for being rather prosecution-friendly.

The judge disagrees. “My decisions are straight down the middle,” says Fisch, whose reversal rate on criminal cases between 2000 and 2007 was 10.1 percent (compared to a First Department average of 7 percent between 2000 and 2005.) “My two proudest professional achievements were on behalf of two convicted felons.”

He was at the DA’s office in Queens when the first case came his way. Legal Aid was appealing the conviction of a man who, on the testimony of his estranged wife, had been found guilty of murdering his mother-in-law.

Though a judge had said the appeal had no legal basis, Fisch said, “There was something in the presentation that disturbed me, so of my own authority I directed my squad to do an investigation. . . . To make a long story short, we established that [the man] was innocent and his wife had murdered her own mother.”

The second act of empathy Fisch cites occurred while he was at the State Commission of Investigation, where he confronted the case of a former IRS agent who, “after an unfortunate mixture of asprin and ale, walked into a bookstore with his hand in his pocket asking for money.” Because of the concealed hand, the man’s court-appointed lawyer advised him to plead guilty to armed robbery.

Sixteen years later, after the man’s release, the man still couldn’t get a job. His wife was expecting a child, and Fisch said he was moved to act.

During his vacation time, he researched the case and won the man a pardon. “The only thing I would allow was that the man pay for my transportation,” Fisch says of the good deed, “and to this day I wish I hadn’t, because I think it detracted from the mitzvah.”

Prominent defense lawyer Marvin Schechter, who has frequently appeared before Fisch, seconded the Justice’s claim of even-handedness. “There are many lawyers who feel that Judge Fisch is pro-prosecution,” he said, “Fisch is a tough, tough judge. But my sense of him is, if you’re well prepared and you’re a fighter on the law, he’ll listen and he’ll back off.”

In one case Schechter argued, Fisch reversed himself twice in response to Schechter pushing his point. The defendant, a young man, was acquitted, and the judge invited him — and his mother — to talk in chambers. Fisch “really dressed him down, said ‘You’ve got to get your life together,’ ” Schechter said. “It was really compassionate and unusual for a judge.”

Similarly, Fisch claims that nonpartisanship has been, and will be, a continuing hallmark.
“I am a nonpolitical animal and somewhat of a freak in that I am not politically involved,” he says.

His first appointment to the Court of Claims, he points out, was by Governor Mario Cuomo, a Democrat; his second was by Governor George Pataki, a Republican. “I pick my staff on the basis of having observed them in action,” says the Justice. “I do not know [when I hire them], and I do not know now, whether they are Democrats, Republicans, or Bolsheviks.”

Governor Paterson, he expects, operates the same way. “This opportunity came up, and I’m very excited about it. David Paterson will come to be one of the greatest governors of New York State,” Fisch says. “He’s really a remarkable young man.”

Judgment is relative, of course. Paterson will turn 54 in May.

Posted by Jason on April 30, 2008 01:03 AM to Judicial Reports