Panel Recounts 50 Years of Practice in NDNY

On Saturday, October 21, 2017, in front of a roaring fireplace in Dineen Hall’s Levy Atrium at Syracuse University College of Law, 30 lawyers and law students eagerly watched a panel of practitioners and judges discuss the history of the U.S. District Court for the Northern District of New York over the past 50 years.

Left to right: James H. McGowan, III, retired shareholder at Menter Rudin & Trivelpiece, P.C.; Senior United States District Judge Frederick J. Scullin, Jr.; and retired United States Magistrate Judge George H. Lowe discuss practicing in the NDNY at an event on October 21, 2017 at the Syracuse University College of Law

Sophie Dagenais, Assistant Dean for Advancement and External Affairs, introduced the panel. The panel’s moderator was Mitchell J. Katz, shareholder of Menter Rudin & Trivelpiece, P.C., and current President of the FCBA. The panelists were retired litigator James H. McGowan, III, United States Magistrate Judge George H. Lowe, and Senior United States District Judge Frederick J. Scullin, Jr.

McGowan is a retired shareholder of Menter Rudin & Trivelpiece, P.C. and past President of the FCBA (2006). Before practicing at Menter Rudin, he practiced at the firms of Cherundolo, Bottar & McGowan and Hiscock & Barclay. He graduated from the University of Virginia School of Law in 1966 and started practicing in the NDNY in 1968.

Judge Lowe is of counsel at Bond, Schoeneck & King, PLLC, having served as a Magistrate Judge in the NDNY from 2004 to 2012, and as the United States Attorney for the NDNY from 1978 to 1982. He graduated from Columbia Law School in 1964; and, after being discharged from the Army, he practiced law in New York City from 1965 until 1971, the year he started practicing in the NDNY.

Judge Scullin has been a Senior District Judge for the NDNY since 2006, having served as a District Judge from 1992 to 2006. He served as a member of the United States Foreign Intelligence Surveillance Court from 2004 to 2011, and as the United States Attorney for the NDNY from 1982 to 1992. He graduated from Syracuse University College of Law in 1964; and, after serving in the Army, he started practicing in the NDNY in 1967.

History from Mid-1960s to Mid-1970s

Jim McGowan began the discussion by recalling his first jury trial, which was in state court and against Judge Scullin. “It was a fall-down case,” said Jim. After the two battled for an entire day picking a jury, they settled the case for “a whopping $300.”

Jim explained that, back then in Syracuse, the NDNY was not a popular court in which to practice because of inconvenience: District Judge Edmund Port sat in Auburn, Senior District Judge Stephen W. Brennan sat in Utica, and District Judge James T. Foley sat in Albany. Instead, practicing in state court was preferred.

However, things changed in 1976 when Howard G. Munson took the federal bench in Syracuse, and even more so in 1979 when Neal P. McCurn joined him. Judges Munson and McCurn had been among the best trial attorneys in the area, having gained experience representing parties in civil cases, sometimes as co-defendants and other times as opponents (Munson of Hiscock, Cowie, Bruce, Lee & Mawhinney, and McCurn, of Mackenzie, Smith & Mitchell). They were smart and aggressive but always professional and cordial. As a result the U.S. District Court became the preferred court in Syracuse.

Jim described the time Judge Munson stepped in, with his famous booming voice, to help him get a recalcitrant witness to respond directly and truthfully. He could still remember the advice Judge Munson imparted to him afterward: “When you stand up to conduct cross-exam, have a point. And when you’ve achieved it, sit down!”

History from Mid-1970s to Early 1980s

Judge Lowe said that, in the 1970s, the federal courthouse in Syracuse was located in the former U.S. Post Office Building at the Clinton Exchange. In 1985 the building was converted into office space, now owned by Pyramid Management Group; the former Courtroom is the current conference room of Pyramid’s founder Robert J. Congel.

Judge Lowe, who served as an Assistant U.S. Attorney from 1971 to 1976, said that, in the 1970s in U.S. District Court, there were hardly any drug prosecutions. Rather, there were a lot of bank robbery cases. (He speculated that the large number of cases could have been because FBI Director J. Edgar Hoover, who served until 1972, had earned his reputation investigating them.) There were also a lot of prosecutions for failing to comply with the Military Selective Service Act. Judge Lowe said, “They were tough cases . . . for everybody.” As the prosecutor he would “let [the defendants] tell their stories,” even though the story was largely irrelevant to whether there was a criminal violation. The cases would go to trial because federal judges had more discretion back then, before the U.S. Sentencing Guidelines had been adopted. As a result, a lawyer would often roll the dice on an acquittal, gambling that his client would get a lenient sentence if convicted.

Judge Lowe recalled that there were no female or African-American Assistant U.S. Attorneys until he appointed them, as the U.S. Attorney, in 1978. The first female Assistant U.S. Attorneys were Paula Ryan Conan and Nancy S. Jones. The first African-American Assistant U.S. Attorney was George A. Yanthis, who later became a U.S. Magistrate Judge for the Southern District of New York.

Judge Lowe explained that, although he was appointed by President Jimmy Carter, he served two years into the first term of President Ronald Reagan. Currently, when a new President is elected, the then-serving U.S. Attorneys will often resign or expect to be terminated. However, back in the 1970s, it was the practice for the U.S. Attorneys to serve four years, no matter the result of an intervening presidential election, which made the position more apolitical. This practice was encouraged by U.S. Senator Daniel P. Moynihan of New York.

After he left the U.S. Attorney’s Office in 1982, Judge Lowe established a white-collar criminal defense group at Bond Schoeneck & King PLLC. While Judge Lowe was at Bond, the U.S. Attorney’s Office started to prosecute more environmental crimes and drug cases.

History from Early 1980s to 2000

Judge Scullin explained that, after he replaced Judge Lowe as the U.S. Attorney in 1982, he doubled the size of the staff in the office over the next few years because of the ever-expanding criminal jurisdiction of federal courts. (Currently there are approximately 43 Assistant U.S. Attorneys in the office.) During Judge Scullin’s tenure, the U.S. Attorney’s Office was involved primarily in prosecuting drug cases (the FBI had been directed to expand its investigative jurisdiction into drug cases), as well as public corruption and racketeering cases. Of particular note during the 1980s was the prosecution and conviction of former Syracuse Mayor Lee Alexander and a number of his associates: lawyers, accountants, architects and engineers, who were instrumental in a kickback scheme involving millions of dollars during Alexander’s 16-year tenure as Mayor. This investigation consumed a great deal of the office’s time and resources between 1984 and 1987.

Judge Scullin also recalled a time when Les Amann, the senior resident agent at the FBI’s Syracuse office, persuaded him to enter into a cooperation agreement with the Ontario Provincial Police Commissioner allowing the Canadian authorities to be cross-designated as federal agents to work in the NDNY, and allowing State Police and FBI Agents to be designated as Canadian agents to work in Ontario. Judge Scullin’s satisfaction from the benefits of the agreement was shattered one day when he heard the ringing of his desk’s “red phone,” which was reserved for calls directly from the desk of the U.S. Attorney General. “Dammit Scullin,” cried the voice on the other end, “who do you think you are? Under the United States Constitution only the President and the Secretary of State have the authority to sign a treaty with a foreign nation . . . and the last time I checked you are neither.”

Luckily the investigations that were underway due to the joint designations resulted in highly successful international drug prosecutions, “probably the only reason I wasn’t fired,” said Judge Scullin. He was appointed U.S. District Judge by George H. W. Bush in 1992.

Echoing Judge Lowe’s comments about the Sentencing Guidelines, Judge Scullin agreed that the Guidelines as adopted in 1987 were a misnomer: Judges were required by the Guidelines to issue certain sentences based upon the criteria that was to be applied; and defense attorneys were forced to negotiate pleas to lesser offenses to avoid facing mandatory sentences in the event of conviction. This was changed by the Supreme Court when it issued U.S. v. Booker, 543 U.S. 220 (2005), which gave judges the discretion they have today with respect to sentencing.

History from 2000 to Present

Judge Scullin became Chief Judge of the NDNY in 2000. Among the many initiatives that began during his tenure as Chief Judge were the unification of Court rules and Pretrial Orders, the initiation of naturalization ceremonies (which previously had been done only by state courts) and the formation of the FCBA. When his term of Chief Judge ended in 2006, Judge Scullin took senior status.

As an additional duty, from 2004 to 2011, Judge Scullin served on the U.S. Foreign Intelligence Surveillance Court (“FISC”). The FISC was established by the Foreign Intelligence Surveillance Act of 1978 (“FISA”). The FISC’s function is to oversee requests by federal intelligence agencies for eavesdropping and/or search warrants against foreign agents. Appointed by the Chief Justice of the United States, FISC’s 11 judges are from across the federal circuits; they serve terms of seven years and sit in Washington, D.C., in individual rotation, one week at a time, with periodic meetings en banc.

Judge Scullin went on to discuss generally how the FISC operates. Afterward, amazed, Judge Lowe said, “That’s the most I’ve ever heard Fred talk about it,” to which Judge Scullin replied, “You never listen to me anyway.”

Currently, in the NDNY, there are five district judges on senior status: Thomas J. McAvoy (2003), Judge Scullin (2006), Lawrence E. Kahn (2007), Normal A. Mordue (2013) and Gary L. Sharpe (2016).

Jim McGowan recounted that, when they first took the bench, Judges Munson and McCurn kept civil cases moving; but then they started to get bogged down by the increasing number of both civil and criminal cases. He said that, when they took senior status in 1990 and 1993 respectively, they continued to keep full caseloads, helping to control the active district judges’ caseloads. This has because the model for other judges as they become eligible for senior status.

Judge Scullin explained the so-called “Rule of 80,” pursuant to which, when a district judge reaches the age of 65, any combination of years of age and years of service on the federal bench that equal 80 (or more) entitle the judge to retire with full pay or assume senior status, under which he or she continues to keep a full staff and receive a full salary but may take a reduced caseload. (They may also decline to take certain categories of cases such as child pornography cases.) When a district judge retires or takes senior status, the President may appoint a new, full-time district judge to fill his or her seat.

When asked by Mitch Katz how District Judges satisfy their obligation to be knowledgeable in all areas of the U.S. Code, which has grown considerably in the past 50 years, Judge Scullin said that judges do so partly through the hiring of the smartest law clerks they can find. (In the audience were two of Judge Scullin’s former law clerks: FCBA President Adam R. Shaw of Boies Schiller & Flexner LLP and FCBA Trustee Brian J. Butler of Bond, Schoeneck & King PLLC.) Judge Scullin agreed that the expansion of the U.S. Code over the years has significantly contributed to an increase in the caseloads of federal judges.

When the event ended, FCBA President Shaw thanked the panel and said, “I hope this was just Part One of your discussion.” Judge Scullin quipped, “We’re getting so old that, if we did a Part Two, we’d probably just say the same thing.”