For more than two decades, the appellate court that oversees Manhattan and the Bronx has repeatedly advised trial judges not to use a certain phrase when explaining to jurors the tricky concept of reasonable doubt.

In a 2004 decision, People v. Johnson, the Appellate Division’s First Department quoted from eight different rulings that warned that the wording in question could undermine the presumption of innocence, leading jurors to believe that they could convict if the scales were even slightly tipped against the defendant.

“The lesson apparently has gone unheeded in at least one courtroom,” the court said.

The trial judge that the Appellate Division was referring to, with an unmistakable note of irritation, was New York County Supreme Court Justice Edward J. McLaughlin. At the close of the trial of Abdul Johnson, McLaughlin used the disfavored phrasing in his instructions to the jury, forcing the appellate court to reverse Johnson’s conviction on two counts of robbery and vacate his nine-and-a-half-year prison sentence.

It was a unanimous ruling, though two judges weighed in with concurring opinions that pointed out other “equally disturbing” portions of McLaughlin’s ad-libbed charge to the jury that “cannot be permitted to stand,” and emphasized that when trial judges repeatedly defy instructions, “there comes a time when . . . admonitions are not enough.”

The main opinion observed, “Cautious trial judges, will continue to try to avoid using language that has met with disapproval by appellate courts.” For that matter, trial judges should be wary of any “elaboration and semantic variations” on standard jury instructions.

Telling that to Judge McLaughlin is a bit like instructing a duck to stay away from water.

In nearly a quarter of a century on the bench in Manhattan, McLaughlin has won respect as a diligent and passionate judge. Prosecutors and criminal defense attorneys say he is stern but fair-minded and won’t hesitate to discipline either side for stepping out of line.

But he has also gained a reputation as a judge who isn’t shy about acting on idiosyncratic interpretations of laws, as he has done most recently with the Drug Law Reform Act. And McLaughlin is famous for delivering florid speeches to jurors, a habit that has regularly gotten him into trouble with appellate courts.

Most notably in People v. Aponte, a case that culminated in a state Court of Appeals ruling in 2004, McLaughlin was reversed for the instruction he gave to deliberating jurors who reported that they were deadlocked. Dispensing with the meticulously worded standard instruction that courts of appeal have approved for such circumstances, McLaughlin launched into a rambling soliloquy about how “something happened in this case,” and that “only you folks can tell us was there a gong, a ding, a ping or nothing.”

Without reminding the jurors, as he should have, that they should not abandon conscientiously held beliefs simply to reach a verdict, McLaughlin went on to insist that the “point of the process is to get a result,” and that they had been put on the jury “to do what you said you would do when we started, which is to decide this case.”

That certainly succeeded in shattering the deadlock. The jury returned five minutes later with a verdict finding Ramon Aponte guilty of dealing crack cocaine.

In the Appellate Division’s review of the case, two of the five judges on the panel issued a dissenting opinion insisting that there was nothing wrong with McLaughlin’s instruction. But the majority concluded that the judge “improperly sought to shame the jury into reaching a verdict,” and tossed out Aponte’s conviction. All seven judges on the state’s highest court agreed that McLaughlin’s ad-libbed instruction to the deadlocked jurors was “unbalanced and coercive.”

The Appellate Division expressed “dismay” that McLaughlin used similar language to shame a deadlocked jury in another case, People v. Fong, which preceded the appellate rulings in Aponte. But in that case, McLaughlin’s error was deemed harmless because his “impromptu” instruction was “generally less prejudicial overall than that in Aponte,” and the jurors continued to deliberate for several more hours, suggesting that the holdouts had not been bullied into submission.

McLaughlin narrowly avoided picking up a reversal for his instructions to a jury in another case, People v. Lewis. Two of the five judges on the appellate panel issued a 5,000-word dissent asserting that he misled jurors about the prosecution’s burden of proof in burglary cases.

McLaughlin is not exactly apologetic about his tendency to craft jury instructions sometimes on the fly.

“As a judge looking at 12 people, I can tell when there’s lack of paying attention, when there’s uncertainty while I’m giving the charge. There’s no script telling me what I should do when I detect confusion,” McLaughlin said in an interview. “I assume some pundits would say you simply have to continue saying what you were going to say, and if there is in fact confusion, the jury will write you a note and you can deal with it at that point. That’s not the way I do things.

“I’m not suggesting that everything on which I’ve been reversed and criticized was off the cuff and in response to something I detected going on in front of me. But none of this is a simple as some folks want to make it.”

McLaughlin is quick to add that he would never defy an explicit admonition from the appeals court. “I’m a law-abiding judge. If they give me specific guidance that this phraseology is wrong, I don’t do it again,” he said. “I’ve got a family to feed. I’m not going to run around purposely putting my head in a guillotine.”

In the case of his charge to deadlocked jurors, for instance, he now knows that a judge is not supposed to tell a jury that the “purpose of a trial is to get a verdict.” It was news to him that there was anything wrong with that. Now that he’s been set straight, he doesn’t say it any more. “But I’m not going to tell you that I varied completely what I say,” McLaughlin added.

A lawyer who knows McLaughlin well concurs with the judge that he is not oblivious to appellate reversals.

“He’s a smart guy. He reads the appellate opinions,” said Mark R. Dwyer, the chief of appeals in the Manhattan district attorney’s office, referring to one of the reversals that McLaughlin has picked up for improperly instructing jurors. “I’ll bet he stopped doing what they criticized as soon as he read the opinion. He is a smart judge. He is not going to keep giving a reversible charge.”

Dwyer declined to criticize the judge for the way he instructs jurors. “He is a smart guy who cares about conveying the correct principles to the jury and giving them a complete understanding of what they are facing. In doing that, he sometimes puts [jury instructions] into his own words in creative ways that are not always appreciated by the appellate courts,” Dwyer said.

Indeed, he is reversed more often than the average judge. From 2000 through 2005 — according to data compiled by the Institute of Judicial Studies, which publishes Judicial Reports — McLaughlin was appealed 121 times in criminal cases. His reversal rate was 9.9 percent. During that period, the First Department reversed criminal appeals 7.0 percent of the time. Of the 52 judges who had more than ten appeals, McLaughlin was ranked 40th.

McLaughlin’s penchant for delivering impassioned lectures to jurors put him briefly into the headlines this spring. In the trial of a group of lesbians accused of beating up and knifing a man who allegedly heckled them on a Greenwich Village sidewalk, McLaughlin slapped an arguably illegal sanction on a prospective juror whom the judge seemed to think was concocting an excuse to avoid jury duty.

One of McLaughlin’s most fervent speeches to jurors is the one he delivers at the start of jury selection, in which he explains that jury service is a sacred duty, much easier, but no less important, than being drafted to defend the nation against attack. The jury system has been a bulwark of American democracy since 1776, and those who are called for service should be honored to play a part in it, he says.

In the judge’s view, that lesson was lost on one of the panelists in the trial stemming from the Greenwich Village assault. Informed that the case would involve a “gang,” Bruce Nussbaum, a managing editor at BusinessWeek, asked whether he should send his wife out of town to protect her from retaliation. That prompted McLaughlin to dismiss Nussbaum from the panel.

But, convinced that it was yet another one of the “garbage excuses” that he has gotten so tired of hearing from citizens trying to get themselves kicked off a panel, McLaughlin ordered Nussbaum to come to court every day anyway and twiddle his thumbs in the jury room from 9:45 a.m. to 4:45 p.m. for the duration of the trial. Nussbaum retained a lawyer to challenge the punishment, and the Appellate Division swiftly put an end to it.

It wasn’t the first time that McLaughlin had lashed out at a seemingly recalcitrant juror.

Nussbaum’s lawyer, Michael Bachner, said the judge gave him a copy of a ruling in which he imposed the same sanction for much the same reason on a prospective juror named Harriet B. In 2005, McLaughlin held a panelist named James Pringle in criminal contempt, and sentenced him to four days in jail, for failing to show up for a third day of jury duty, after getting passed over for juries on his first two days.

Bachner was happy to go on the record with his thoughts about McLaughlin, a judge he has encountered often over the years, first when Bachner was a deputy bureau chief in the Manhattan district attorney’s office in the 1980s and in recent years as a criminal defense attorney.

“My experience with him is that he treats both sides equally. If he thinks, the prosecution case is problematic or the prosecutors are not doing their job, he’ll let them know it, and the same thing on the defense end of it,” said Bachner, who noted that in contrast with some judges in the courthouse “who are far right of the prosecutors,” McLaughlin is “down the middle.”

Bachner added, “I find him to be a very intelligent guy. I also find him to be a very diligent and hardworking judge. In connection with this juror issue, we disagreed. I think the decision by the Appellate Division is an indication to him that it’s not something they are going to look kindly on in the future.”

Robert L. Sims, Jr., an attorney who represented the prospective juror Pringle in his run-in with the judge, also had nothing but praise for McLaughlin.

“He is very thorough on the law,” “definitely runs a tight ship,” and is “highly respected,” Sims said. “As a defense counsel, I have never had a problem with him.”

Though Pringle was officially sentenced to four days in jail for contempt, “the order was crafted in such a way that he didn’t even serve a full day,” Sims said. McLaughlin “seems to have taken on the task of trying to indicate to jurors that this is an important civic activity, and he considers it very important. The judge wanted to send a message, not only to my client but to other jurors, and the media assisted him in doing that.”

McLaughlin’s “crusade” on that issue is one that criminal defense attorneys generally applaud, Sims added. “A lot of people try to get out of jury service whenever they can and as a result, we don’t have a diversified jury pool,” he explained.

 
Despite the minor furor generated by his treatment of Nussbaum, McLaughlin isn’t backing down. In an interview, he disputed the suggestion that he was motivated primarily by a suspicion that Nussbaum was trying to get out of jury duty. Instead, by belatedly disclosing late in the selection process that he was worried about gang retaliation, the prospective juror was “withholding information to the detriment of the parties,” McLaughlin explained.

He is not making any promises that he’ll refrain from imposing the same sanction if a similar situation arises in the future. “We’ll have to see, but there’s nothing in [the Appellate Division’s summary order] that says that I can’t, shouldn’t or won’t,” he said.

Burnishing his credentials as a judge who won’t hesitate to take prosecutors to task, McLaughlin issued an opinion in 2004 lambasting the district attorney’s office for sending grand jury subpoenas to witnesses by mail and, worse yet, for enclosing a letter with the subpoena asking the witnesses to come talk to prosecutors first.

“The District Attorney's Office has little comprehension of the legal rules that govern the proper use of a subpoena,” McLaughlin declared. The letters constituted an illegal use of the subpoena process as an investigative tool, he explained, declaring that the veteran prosecutor who had used the tactic in the particular case would henceforth be barred from his court.

Dwyer, the chief of appeals in the prosecutor’s office, said McLaughlin’s concerns seem to have been allayed.

The prosecutor’s office continues to send grand jury subpoenas by mail, mindful that witnesses have the right to ignore the letters, in which case a process server will deliver a copy of the subpoena in person. As for the enclosed note from the district attorney, “We thought our letter was pretty clear,” Dwyer said. “We modified it a bit to make it even clearer that we hope you will come talk to us first but the subpoena only obliges you to go to the grand jury. We have not heard any objections along those lines since that time.”

When McLaughlin took on prosecutors on the subpoena issue, criminal defense attorneys praised the judge for having the guts to put a stop to what they described as a devious prosecution tactic. But defense attorneys are not talking, either on or off the record, about one of the most recent controversial stances that Justice McLaughlin has taken. His latest batch of reversals from the Appellate Division have stemmed from his interpretation of the Drug Law Reform Acts of 2004 and 2005.

The laws allow inmates who were convicted of A-I or A-II felony drug offenses, under prior laws that are now widely regarded as unnecessarily harsh, to apply for a reduction in their prison term. Inmates who make the request are entitled to a hearing, according to the statutes.

McLaughlin has been reversed four times since last summer for insisting that the ameliorative effect of the reform laws certainly wasn’t intended to extend to offenders who were too heavily involved with drugs. Only one other judge in the Appellate Division’s First Department, Bronx County Justice Alexander Hunter, has picked up a single reversal for taking a similar stance.

McLaughlin first staked out his position on the issue in the summer of 2005. In refusing to even consider resentencing Luis Arana, he pointed to the inmate's criminal record as well as the very large quantity of cocaine that he been convicted of helping to distribute, and declared, “There is no way the legislature had any intention whatsoever to include [Arana and his codefendants] or anybody else in this category in their revision of the laws, and I will not do it.”

In fact, Arana and the three other inmates whose requests for resentencing McLaughlin summarily declined clearly are offenders who the legislature had in mind, the Appellate Department said.

McLaughlin’s interpretation of the law “cannot be reconciled with the text of the statute,” the appellate panel declared in People v. Arana. The 2004 statute flatly states that “any person” in prison who was convicted of a class A-I felony drug offense, which previously drew a mandatory indeterminate term of at least 15 years in prison, may apply to be resentenced under the more lenient law. The only distinction among different types of drug offenders that the legislature made, the appellate judges added, concerned drug offenders who had previously been convicted of a violent felony offense, and they would be entitled to less substantial sentencing relief if the applications were granted.

A lower sentence is not a foregone conclusion. Though the judge must give the inmate a hearing, and also must take into consideration his or her record in prison, the judge may ultimately conclude that a lower sentence for that particular inmate is not warranted.

Given that McLaughlin has gone on record about his low regard for the four inmates who, in his view, didn’t even deserve a shot at a lower sentence, the lawyers for the men, not surprisingly, asked the Appellate Division to remand the cases to a different judge. In each case, the Appellate Division denied the request, so the four cases are now back before McLaughlin.

The defense attorneys handling the cases either declined to comment or did not return calls seeking their comments about the judge. To be sure, he may not get the last word. If the attorneys aren’t persuaded that he made an honest effort to consider their clients’ cases for a reduced sentence, the Appellate Division will likely be getting more chances to review McLaughlin’s work.