Cogitations concerning the Special Prosecutor Paradigm: Is the Cure Worse Than the Disease?

My tribute to the Honorable Hugh R. Jones starts with a borrowed first word. The title of my exertion begins with "Cogitations." It is the same word Judge Jones so carefully chose as the first word in the title of his masterful Cardozo Lecture in 1979, Cogitations on Appellate Decision-Making. (1) However, after my imitative highest form of compliment, everything else that follows is my much more modest contribution to our jurisprudence on the subject of special and independent prosecutors. (2) At the outset, please let me say that I am deeply grateful especially to Chief Judge Judith S. Kaye, and also to all my former and present Colleagues on the New York State Court of Appeals, for the privilege of serving with them here, and for allowing me to appear in this sacred space--our secular sanctum sanctorum--this most beautiful courtroom of the Court of Appeals to deliver this lecture in Judge Jones' esteemed name and cherished memory. I am thrilled and honored to do so. By the way, isn't "Cogitations" a splendid word, not surprisingly, from a fastidious wordsmith and mind like Judge Jones'? It is derived from the Latin verb, cogitare, to think, to ponder, or as a favorite Synonym Finder of mine suggests, to meditate and even to brood over. (3) These seem apt images for what I am about to do right before your very eyes--and ears, too. Judge Jones' exquisite word, therefore, starts me on this somewhat brooding, but I hope constructive, journey concerning this theme. I trust you will find it of some interest. I also thank the Fund for Modern Courts, the principal sponsor for the last five years, for extending the privilege of this invitation to me. I thank Albany Law School as the co-sponsor, and the institution affording CLE credit. They instructed me, by the way, to speak long enough (fifty minutes) to qualify for the credit. The lecture version was an abridged version, therefore, of what I have prepared for the article to be published, with its necessary and attendant footnotes. And I particularly thank Kimberly Troisi-Paton, who picked up where she left off as my law clerk in 1998-2000 to assist me in a myriad of excellent ways throughout this project, as my research assistant extraordinaire. (4) This renewed collaboration came about, in part, thanks to a generous grant I sought from my former judicial colleague, retired Supreme Court Justice Joan Marie Durante, whom I acknowledge on behalf of Kim and myself for being so immediately supportive and instinctively collegial. Now, since this is not an Oscars' event, I must end the litany of thank yous--though my family and dear parents, of beloved memory, do spring to mind and heart in deep gratitude. I will instead now turn to Judge Hugh R. Jones and the subject at hand, my lecture theme: the purpose and dangers of special prosecutors in our criminal justice and jurisprudential universe. As may be surmised from the rhetorical query I pose as my subtitle, it is my personal opinion that, generally and usually, the cure is definitely worse than the disease. Readers may recall or imagine Judge Jones' portrait up on the side wall of the courtroom he graced at the Court of Appeals for twelve years; it is worthy of a moment of silent tribute. You will see an accurate representation of this fine man and outstanding jurist right there. His portrait reflects many of his fine qualities: intelligence, intellectual discipline, and ramrod rectitude in his erect posture and in his refined habits of mind and conduct. Those of us privileged to work alongside Judge Jones in various capacities over many years came to know how he loved charts and color-coded pens and pencils, denoting the stages of his and the Court's deliberative regimen and decision-making steps. These personal protocols reflected a disciplined analytical progression, thoroughness to a fault--that his colleague and "Chief" for the 1970s era described as the work of a micro-logician. …