Rulings by Mukasey Are Called Conservative, Fair

Michael B. Mukasey, who is President Bush's nominee to be attorney general, spent 18 years as a district judge in New York.
Michael B. Mukasey, who is President Bush's nominee to be attorney general, spent 18 years as a district judge in New York. (By Melina Mara -- The Washington Post)

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By Robert Barnes and Michael A. Fletcher
Washington Post Staff Writers
Friday, September 21, 2007

Judge Michael B. Mukasey clearly believed that the defendant did not have a case. He dismissed her assertion that the New York City Police Department fired her because she had accused a more senior officer of rape, without allowing a jury to hear the case. But a higher court disagreed and told the judge to hold a trial.

There, the jury found for Karen Sorlucco, and ordered the police department to pay her nearly $265,000. But again Mukasey disagreed, making a rare decision to overturn the jury's verdict, partly because he believed that the victim had committed perjury. "It would be grossly unjust for the jury verdict to stand," the judge said.

And, again, a higher court disagreed: "The trial court overstepped its bounds, and usurped the jury's function of judging credibility." It ordered Mukasey to enter judgment in Sorlucco's favor.

The case, finally settled in 1992, fairly early in Mukasey's career on the bench, showed a judge insistent on doing what he felt the law compelled, even when a jury and a higher court disagreed. "It's difficult whenever a judge takes away a jury verdict, but he was doing his job as he saw it," said Minna J. Kotkin, a professor at Brooklyn Law School, whose legal clinic handled Sorlucco's appeal. She added, "I don't think civil rights has been his first love."

Many lawyers who have practiced before Mukasey, 66, describe him as conservative but not doctrinaire, and fair. The long judicial record created by Mukasey's 18 years as judge on the U. S. District Court for the Southern District of New York included thousands of cases that ranged from high-profile terrorism trials to lengthy insurance battles over liability in the Sept. 11, 2001, attacks on the twin towers, and a case in which a jury awarded $100 to a woman who said boxer Mike Tyson grabbed her buttocks.

His generally conservative demeanor on the bench and his self-confidence seem particularly pronounced in his handling of the complex trial of Omar Abdel Rahman, the "blind sheik," after the 1993 bombing of the World Trade Center. After a long Rahman complaint at sentencing, he said: "You should be assured that there is no shortage of will in this country to deal with the threat of violence from any source. If you look at the record of even the relatively recent past -- the last 50 years of this country -- you will find that this country has faced militant fascism, and prevailed; it faced militant communism, and prevailed."

Mukasey also told Rahman: "The one thing that the sentence in this case will certainly assure to the citizens of this city and of this country, who deserve it, is that you and the others who are being sentenced here will never be in a position to do again what the evidence showed overwhelmingly that you did in this case."

While many commentators saw that trial, and Mukasey's handling of another case involving terrorist Jose Padilla, as models of jurisprudence in handling terrorism suspects, Mukasey came away from his experience deeply skeptical that the current criminal justice system is up to that relatively new task. He has since suggested that a separate national court might be needed for such cases.

"Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, is said to have told his American captors that he wanted a lawyer and would see them in court," Mukasey wrote last month. "If the Supreme Court rules . . . that foreigners in U.S. custody enjoy the protection of our Constitution regardless of the place or circumstances of their apprehension, this bold joke could become a reality." His statement matched the Bush administration's view.

In another op-ed column, Mukasey said he agrees with the proposition that government "is entitled, at least in the first instance, to receive from its citizens the benefit of the doubt." But while Mukasey ruled that he supported the administration's detention of Padilla as an "enemy combatant," he showed independence by ruling over the administration's objections that Padilla had the right to an attorney.

In a later case, Mukasey also ruled against a government bid to administer drugs to Susan Lindauer, a mentally unstable woman who had been charged as an agent of Iraq, to be able to try her in court.

Roland Thau, a federal public defender in Manhattan who has appeared before Mukasey, said: "He gave you a very good trial. He is very sharp, very focused. It was interesting to argue before him because he was interested in ideas and language."

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