Will a prosecutor-turned-governor
pick a champion of the defense bar?

When governor-elect Eliot Spitzer ponders the list of the seven nominees for the Court of Appeals, the name of James Yates might well bring up a bad memory. The Manhattan Supreme Court judge presided over a case that resulted in a rare setback for Attorney General Spitzer’s crusade against Wall Street wrongdoers.

To be sure, it was jurors, not Yates himself, who acquitted the defendant, Theodore C. Sihpol III, a former broker with Bank of America, of 29 of the criminal counts he faced. Since a lone juror was adamantly holding out for a conviction on four other counts, Yates had no choice but to declare a mistrial and dismiss the rest of the case against Sihpol, who was accused of enabling a hedge fund to make improper trades in mutual funds.

The attorney general’s office declined to comment on the judge, except to point out that he has presided over many other cases brought by state prosecutors. Most have ended in convictions, usually through guilty pleas, including fraud and embezzlement cases against the former director of the James Beard Foundation, the officers of an adult home, an insurance company executive and several brokers nabbed in illegal stock and fund trading schemes.

Sihpol’s lead defense attorney, C. Evan Stewart, a partner with Zuckerman Spaeder LLP, wouldn’t comment on whether Yates made any rulings that peeved prosecutors in the case. But Stewart was effusive in his praise for the judge.

“I think Justice Yates is a man of great integrity and a brilliant jurist,” Stewart said. “I think he had a very sound approach [to the Sihpol trial] insofar as he let both the attorney general’s office and the lawyers working with me representing Mr. Siphol try our respective cases. He was very fair to both sides, and it was a great pleasure to try the case in front of him. He’s an eminently nice man. He’s a gentleman and a legal scholar. He would be a wonderful addition to the Court of Appeals.”

Other criminal defense attorneys agree. In fact, the New York State Association of Criminal Defense Lawyers honored him with its William Brennan Jurist Award in 2005, bestowed each year on a single judge in the state who is regarded by the bar group as especially outstanding. Yates obliged in a speech at the awards dinner with a veritable call to arms to the criminal defense bar. “We have to face the fact that the role of defense counsel and the promise of a balanced adversarial system of justice are under serious attack. Increasingly, defense lawyers — lawyers in general — are not portrayed, as in the past, as principled protectors of valued rights. They are seen as obstructionist game players,” Yates declared.

He proceeded to share his deep concern about drug courts and other “problem solving courts,” which have practically attained sacred cow status in most quarters. He doesn’t oppose them in principle, Yates said, but often in practice there is no place in them for zealous attorneys who insist on fight for their clients’ rights. “We are sliding backward, without even realizing it, toward an inquisitorial system of justice,” he warned.

Yates, who earned his undergraduate degree at Princeton in 1967 and his law degree from Rutgers School of Law in 1973, got his own start in law practice as a staff attorney with the Legal Aid Society of New York City. He worked there until 1978, when he took a job in the state Legislature.

He was senior counsel with the Assembly Codes Committee, from 1979 to 1987, and eventually became one of the most powerful staff attorneys in the Legislature as counsel to the Assembly speaker. He resigned from that post in 1992 after he was appointed to the Court of Claims in New York City by Governor Mario Cuomo. Yates was elected to the New York County Supreme Court in 1998 and has handled mostly criminal cases ever since.

“He’s got a background in criminal law that is essentially nonpareil,” said Ray Kelly, president of the New York State Association of Criminal Defense Lawyers.

Joshua Dratel, a former president of the association, added, “He covers a wide range of the types of experience that you would want on the Court of Appeals. He was a practicing lawyer, he was in the Legislature as a counsel, and he’s been on the bench. So he knows the law and what the issues are from all three sides. And he obviously has an appreciation for the role of the judiciary and other branches of government because he has experience.”

In Dratel’s view, which is most likely shared by much of the criminal defense bar, Justice Yates is a “a great candidate” for the open seat. The choice, to be sure, rests with a former prosecutor.