Stephen Fisher is intellectually curious —
and one of Pataki's favorite Democrats.
By Jesse Sunenblick

Attorneys of many stripes praise the acumen of Steven W. Fisher.

“His courtroom is a bit like a moot court in law school,” said Lynn Fahey of Appellate Advocates, which represents indigent defendants in appeals. “His questions are more theoretical than others. He’ll say, ‘Well, logically, if this were true and that were true, would you say that this is also true?’ and several steps down the road he’ll ask how it applies to your case, which is unusual for the nitty gritty Appellate Division, where they like to get right to the point.”

While Fahey thinks this stems from Fisher’s years running the Criminal Jury Instructions committee, where it behooved him to consider how crimes relate to one another, other attorneys chalk it up to Fisher’s genuine love of legal ideas.

“I think what the attorneys enjoyed was that he was very stimulating,” said Seymour James, head of the Legal Aid Society’s criminal defense division in Manhattan. “He’d encourage legal discussions. There’d be a lot of back and forth on the issues. And that was true even before he was the administrative judge in the Queens Supreme Court” — a position Fisher held from 1998 until 2004. “I remember attending meetings with judges, and they’d say, ‘Well, what does Steve think?’ ”

“He’s a pretty dominant force on any panel he’s on,” said a member of the defense bar. “He’s not a shrinking violet. He can dominate the show. So you spend a fair amount of time during 10-minute oral argument addressing his concerns — if he has any interest in the case, that is.”

Added a Brooklyn prosecutor, who also requested anonymity: “He listens to your point of view, and he’s respectful, not arrogant. He’s a fair judge — and that’s the most you can ask.”

Another litigator noted that Fisher can be extraordinarily deliberative. “When he writes on a case it takes a long, long time — once it took close to a year to get decision. You tend to get a thoughtful decision though.”

A Brooklyn Law School graduate and a former assistant district attorney in Kings County, Fisher was appointed by Mayor Edward I. Koch to the New York City Criminal Court in 1983, and elected to the Queens Supreme Court in 1992. Governor George Pataki elevated him to the Appellate Division, Second Department in 2004.

His current nomination marks Fisher’s fifth for a vacancy on the Court of Appeals. All have come by way of Pataki, an indication that the judge maintains a conservative streak despite his membership in the Democratic party.

In 2004 while still a Supreme Court Justice, Fisher presided over the notorious Wendy’s Massacre trial, in which convicted killer John Taylor faced the death penalty. The law is in limbo in New York — a June 2004 ruling by the Court of Appeals said it unconstitutionally coerced jurors to vote for execution by requiring judges to tell them that if they deadlocked in a trial's penalty phase, the judge would impose a sentence that would leave the convicted killer eligible for parole after 20-to-25 years. In the Wendy’s case Judge Fisher addressed this provision, telling jurors that if they deadlocked he would “almost certainly” sentence Taylor to consecutive life sentences for each of his five victims, thereby making parole impossible.

In the eyes of some litigators, this bit of editorializing was an attempt to ensure that a death penalty verdict would stick on appeal, despite the complicated statute; to others, the judge was simply ameliorating an obvious problem as best he could.

In 2005, Fisher wrote a unanimous decision for the Appellate Division that sought to clarify the legal status of the so-called “depraved indifference” murder charge. It sharply divided the state’s defense bar.

A notch below murder in the second degree, “depraved indifference” is used to try defendants who recklessly cause someone’s death, such as in a DUI case. In People v. Atkinson, the Appellate Division held that a Queens Supreme Court jury had correctly determined that the intentional, point blank shooting of a man qualified as “depraved indifference,” even though a Court of Appeals decision a year earlier had said that such a premeditated crime “ordinarily” does not qualify.

Although the Court of Appeals reversed the Atkinson decision a year later, to some litigators the appellate verdict seemed an attempt to justify the recent habit of Queens prosecutors of doubling up the depraved indifference charge with the charge of intentional murder in order to get a murder conviction one way or the other.

In a letter to the New York Law Journal, Steven J. Singer, Co-Chair of the Criminal Courts Committee of the Queens County Bar Association, wrote that by submitting two distinct murder charges to juries in Queens, prosecutors were being coercive, and that by not stopping the practice, judges there — and in the Appellate Division — were playing along.