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Matthew J. Jasen: American Judge in Europe

February 15, 2017October 24, 2018Historical Society of the New York CourtsUncategorized, Blog, Court of Appeals Judges, New York Legal History

This post was written by John J. Halloran, Jr., a Trustee Emeritus of the Historical Society of the New York Courts and a Law Clerk to Judge Jasen in 1984 and 1985. Mr. Halloran extends his appreciation to Prof. Vincent Bonventre (Senior Law Clerk to Judge Jasen from 1983-1985), and Prof. John Q. Barrett (Historical Society Trustee and Board member at the Robert H. Jackson Center in Jamestown, New York) for their insightful comments upon this post.

Michael B. Powers, Law Clerk to Judge Jasen (1982-1984) and Trustee Emeritus of the Society, interviewed Judge Jasen in 2005. He, and the law firm of Phillips Lytle LLP, have graciously given the Society permission to feature this video on the Oral History section of our website. This interview includes vivid photographs of Judge Jasen’s experience in Germany. View this oral history here.

Introduction

In 2015, our Historical Society celebrated the centennial of the birth of Matthew J. Jasen, who served as a Judge of the Court of Appeals from 1968 through 1985. At that time, we noted Judge Jasen’s service as a United States Judge in post-war Germany. At the invitation of the Historical Society, it is my privilege to expand upon the historical record of Judge Jasen’s experience in Europe in the 1940s, which exposed him to the atrocities of what came to be understood as the Holocaust — the systematic, bureaucratic, state-sponsored persecution and murder of six million Jews by the Nazi regime and its collaborators. For Judge Jasen, this was a searing experience that was the foundation of his jurisprudence and steadfast commitment to the rule of law.

War-Time Service in Europe

Matthew J. Jasen was admitted to the New York Bar in 1940 and, after engaging in private practice in Buffalo, NY, enlisted in the U.S. Army in January 1943. Subsequent to basic training and officer candidate school (OCS), he received his commission as a Second Lieutenant (Artillery) on September 30, 1943. He was selected for the military government civil affairs training program (G-5), which was part of the U.S. government’s planning for the allied occupation of Germany, should that event occur. During full day sessions, he intensively studied German language, culture, history, and financial institutions for six months at Harvard University’s School of Civil Affairs. It was the equivalent of two years of college. He continued his studies in German culture in Manchester and Shrivenham in the United Kingdom.

Upon the completion of his training, Judge Jasen served for three years with the Seventh Army in Europe and participated in three major campaigns with a Spearhead Detachment as a Military Government Officer. After the town of Saint-Lô in France was liberated by allied troops in 1944, and it was believed to be relatively safe for military government officers to embark upon their duties, Judge Jasen began his service as a civil affairs officer in towns in France, Belgium, and Luxembourg. In that capacity, he worked in cooperation with local officials to ensure the delivery of basic municipal services, including water, telephone, and electricity.

Thereafter, Judge Jasen and his detachment entered Germany, which was subject to military control. While on a reconnaissance mission to set up a government in Augsburg, Germany, his detachment helped liberate an abandoned prisoner of war camp, and grateful ex-prisoners celebrated their freedom by tossing Judge Jasen in the air — an image that was captured by a British photographer and later published. Judge Jasen, in characteristically modest style, later told Judge Eugene Pigott: “That was about as close to getting injured during the war as I ever was — I thought they were going to drop me.”

Judge Jasen on the shoulders of liberated prisoners of war near Augsburg, Germany.

Kaye on Kaye: Luisa Kaye Talks About her Mother, Judith S. Kaye, in Latest Amici Podcast

December 7, 2016October 24, 2018Historical Society of the New York CourtsUncategorized, Blog, Amici Podcast, Court of Appeals Judges, New York Legal History, Public Events

This blog entry was written by John Caher, the Unified Court System’s senior advisor for strategic and technical communications. It discusses his recent interview with Luisa Kaye, the daughter of our late Chief Judge Judith S. Kaye. Like both of her parents, Luisa is a commercial litigator in Manhattan and partner at Wrobel Markham Schatz Kaye & Fox. On Dec. 12, Ms. Kaye will introduce the inaugural event of a new series by The Historical Society of the New York Courts, Judith S. Kaye Program: Conversations on Women and the Law. This series, sponsored by Skadden, Arps, Slate, Meagher & Flom — where Chief Judge Kaye finished her career — will examine her legacy from the perspective of her clerks. The interview was converted into an “Amici” Podcast, one of a series produced by the court system and maintained at http://www.nycourts.gov/admin/amici/index.shtml.

Photo: © Annie Leibovitz / Contact Press Images

I remember quite clearly many years ago when famed portrait photographer Annie Leibovitz photographed Chief Judge Kaye for Vanity Fair magazine. Judge Kaye told me that Annie basically drove her nuts, asking her to do this and that, and incessantly taking pictures, changing settings, and monopolizing more time than the Chief Judge had to spare. By the end of the session, Judge Kaye told me, she was willing to do just about anything if Annie would just go away and let her get back to work. It was then that Leibovitz got the picture — an uncharacteristically provocative photo — that would appear in Vanity Fair. In my recent interview with Luisa Kaye, I reminded her of that photo, which is on the invitation for the Dec. 12 event:

John Caher:
I got a kick out of the invitation because on the invitation is a briefly infamous and later famous photo of your mother by Annie Leibovitz, one of the greatest portrait photographers ever, in my opinion. In this photo, your mom is sitting at the bench wearing her trademark red shoes and her robe, and showing a bit of leg…

Luisa Kaye:
Yes. Actually, it’s a lot of leg (laughs)!

John Caher:
If I recall correctly, she was at first mortified when the picture appeared in Vanity Fair and then, if I remember what she told me correctly, she came to love it because of something you said. Can you tell us that story?

Unearthing Chancellor Kent

November 16, 2016October 24, 2018Historical Society of the New York CourtsHistorical Research, New York Legal History, Uncategorized, Blog, Early Legal History

This article was written by Robert Murphy, president of the Beacon Historical Society.

Photo: Descendants of Chancellor James Kent standing before his restored gravestone at a ceremony, presented by The Historical Society of the New York Courts and the Beacon Historical Society, which took place on October 30th, 2016 at St. Luke’s Episcopal Church, Beacon, NY.

(L-R): Mary V. Turner Cattan (4th Generation); Harry Boers; Anne Turner (5th Generation); Kent Turner (4th Generation); Katharine Turner Berger (5th Generation); Elizabeth Berger (6th Generation); Deborah Smith (5th Generation); Ellen Turner; Jean Shea (5th Generation); Amy Turner (6th Generation); Ryan Miller

Attending the unveiling of the Kent Gravestone, along with the Kent family and representatives of the Beacon Historical Society, were the staff of The Historical Society of the New York Courts, Marilyn Marcus, Executive Director, Daniel O. Sierra, Marketing Director, and Allison Morey, Administrative Director; the President of the Society, Hon. Albert M. Rosenblatt; and Society Trustees Hon. Helen Freedman and Frances Murray.

“Here Lies Beacon’s Most Illustrious Son” reads the headline over the photo of a gravestone in a 1939 edition of Beacon’s (New York) local newspaper. The headline was referring to James Kent, the eminent jurist and the former Chancellor of New York, and most famously, “the American Blackstone” — author of the seminal nineteenth-century law literary work, Commentaries on American Law. The newspaper lamented back in 1939 (about ninety years after his death) that Kent and his legacy had all but been forgotten by local townspeople, as evidenced by the toppling of his large, marble table top stone that even then was sinking into the sod.

Speed forward to 2013, and the headline might read: “James Kent — Buried, Forgotten and Missing”… for by that date his stone had disappeared, covered over by the grasses of St. Luke’s Church Cemetery. The year 2013 also happened to be the city of Beacon’s centennial, and the Beacon Historical Society’s cemetery committee, spurred on by the 1939 news photo of Kent’s stone, was determined this was the opportune time to find the missing grave of our city’s most Illustrious Son.

How did James Kent happen to be buried in Beacon, New York? Contemporary accounts tell us that Chancellor Kent’s funeral took place on the 15th of December in 1847, with his internment in New York City’s Marble Cemetery following an “immense procession, consisting of Judges of our local courts, and leading members of the Bar,” according to the New York Herald. At Marble Cemetery, Kent’s body and, four years later, the remains of his wife Elizabeth Bailey, were placed in the family vault to rest there for eternity, it would seem. But the Kent connection, and the Chancellor’s eventual removal to Beacon, began in 1853, the year Judge William Kent, the Chancellor’s only son, bought “Beaconside,” his summer estate in Matteawan (now Beacon). And from the windows of Beaconside an easy view of St. Luke’s Church was to be had.

Chancellor Kent gravestone, grass-covered, soon after it was rediscovered in 2013

St. Luke’s Episcopal Church was designed by noted architect Frederick Clarke Withers just after the Civil War, and its grounds were laid out by its most wealthy and famous summer parishioner, Henry Winthrop Sargent, a pioneer horticulturalist and landscape gardener from Boston. Here in the village of Matteawan, in the newly adopted home of son, Chancellor Kent and his wife were to be reinterred about 25 years after his death in the beautifully landscaped setting of St. Luke’s Cemetery. In a letter written in 1873 by the church’s rector, the Rev. Henry E. Duncan, we learn of the Kent family plot:

It is a quiet burying-ground, near the village, though, removed from the bustle and noise of the community, and removed only the fourth of a mile from the foot of the somber mountains. Our beautiful stone church is only a few rods from his grave, the villagers pass on a Sunday morning along the path which conducts by grave to the north door of the edifice. The spot is retired, planted with evergreens—all that one could wish for a last home when the business of life was ended.

Thank you, Judge Kaye

November 2, 2016October 24, 2018Historical Society of the New York CourtsBlog, Education, Judith S. Kaye Fellow, New York Legal History, Uncategorized3 Comments

This article was written by Julia Rose Kraut, J.D., Ph.D. Julia is the inaugural Judith S. Kaye Fellow and will continue teaching “Civil Rights, Civil Liberties, and the Empire State” at the Bard High School Early College (BHSEC) Queens campus this spring. She is a legal historian living in New York City and earned her J.D. from American University Washington College of Law and her Ph.D. in History from New York University. Julia is currently writing a book on the history of ideological exclusion and deportation in the United States, which is under contract to Harvard University Press.

Fifteen years ago, I met New York State Chief Judge Judith S. Kaye, and she changed my life. At the time, I was an undergraduate at Columbia University, and I had decided to attend a panel discussion on the freedom of the press in New York. When I arrived, everyone was invited to sit around a large table, and one by one they began to introduce themselves. I soon discovered that I was not only sitting with prominent judges and lawyers, including the counsel for the New York Times, but that I was also the only student in attendance.

When it was my turn to introduce myself, I nervously explained that I was a sophomore in college who had heard about this panel in one of my classes, and I had decided to attend because I wanted to learn more about First Amendment law. I glanced around the table and saw blank faces staring back at me, except for one that was smiling. That face belonged to Judge Kaye. She was presiding over the panel, and when she stood up and announced that the discussion would begin, Judge Kaye turned to me and said, “I just want to let the college sophomore know that after we all finish talking, I want to know what she thinks about our discussion and what she has to say.” Stunned, I looked up at Judge Kaye, and she smiled again and winked.

After a stimulating discussion, Judge Kaye motioned to me, and I provided a few thoughts and comments, which I do not remember and only hope were somewhat intelligible. What I do remember was Judge Kaye. I remember her warm smile and wink. I remember how she included me in the discussion and reached out to a student who was interested in learning about the law. I remember how I hoped that one day I would have the opportunity to inspire and encourage a student, just as Judge Kaye had inspired and encouraged me.

Fifteen years later, I jumped at the chance to apply for a new fellowship from the Historical Society of the New York Courts to teach a law course to public high school students at Bard High School Early College in Manhattan. Since meeting Judge Kaye, I had pursued my interest in history and law and become a legal historian. While obtaining my J.D. and Ph.D., I made sure to spend as much time in front of a classroom as I did in the library. In law school, I taught high school students about constitutional law, and in graduate school, I taught undergraduates how to conduct legal research, as well as how to brief cases and place them in historical context. I loved teaching, and I was excited to have the opportunity to bring my skills and enthusiasm to Bard and to work with the Historical Society founded by Judge Kaye.

Restoring the Gravestone of the Father of American Law

October 26, 2016October 24, 2018Historical Society of the New York CourtsPublic Events, Uncategorized, Blog, Early Legal History, New York Legal History

Chancellor James Kent, widely regarded as the father of American Law, was laid to rest in Beacon, New York in 1847. However, over the subsequent century and a half, his grave marker had fallen into great disrepair. The marble marker had fallen off the posts it originally rested on in the 1930s. Cracked into four pieces, grass began growing between the fragments. More recently, the Beacon Historical Society decided to begin the restoration of Kent’s gravestone. The disrepair was brought to the attention of the Historical Society by President, Judge Albert M. Rosenblatt, who secured the Society’s help for the restoration project with the Beacon Historical Society. The Society contributed a portion of the restoration funding as well as helped Beacon Historical Society with locating James Kent’s descendants, who also donated the majority of the funding necessary to complete this restoration. The project was completed last month by restoration experts Ricardo and Ta Mara Conde of Historic Gravestone Services in Massachusetts.

Born in Doanesburg, New York in 1763, James Kent came of age during the Revolutionary War. In fact, his childhood home was burned by the British in 1779, causing many distractions during his education. He graduated from Yale in 1781 and was admitted to the bar four years later. In 1791, he was elected to the New York Assembly, where he served two consecutive terms and was elected again in 1796. However, in 1796, Governor John Jay had a different plan; he appointed Kent as Master in Chancery. The following year, Jay appointed Kent as Recorder of New York City.

James Kent continued moving up into New York’s legal hierarchy. In 1798, he became a Justice of the New York Supreme Court of Judicature. In 1804, he became Chief Justice of the same court. As Chief Judge, Kent authored important opinions, including Hitchcock & Fitch v. Aicken (1803), People v. Croswell (1804), Yates v. Lansing (1810), and People v. Ruggles (1811). In 1814, he became Chancellor of New York. Because the mandatory age of retirement at that time was 60 years old, Kent retired in 1823. However, retirement did not slow him down; he taught at Columbia College, and his lectures became the basis of his treatise on the American common law, Commentaries on American Law. At the time of his death in 1847, he had completed the sixth edition of the treatise. This work shaped the way the judges of the New York courts and the United States courts view their roles in jurisprudence and is still referred to today.

Judicial Notice 11: 2016

October 24, 2016March 1, 2019NYCHS_AdminJudicial Notice, Publications

Issue 11

- Kaye on Jay: Revisited
  by Judith S. Kaye

- Asian-Americans and the Law
  by Denny Chin & Kathy Hirata Chin

- People v. Gillette and Theodore Dreiser’s An American Tragedy: Law v. Literature
  by Susan N. Herman

- “Jacobin Winds”: Chief Justice James Kent and the Origins for the Citizenship Prerequisite for Admission to the New York Bar
  by Craig A. Landy

The Formation of New York’s Commercial Division – A History & Memoir
by Mark H. Alcott

Download Judicial Notice Issue 11

The 10th Anniversary of the David A. Garfinkel Essay Scholarship — A Project of The Historical Society of the New York Courts

October 18, 2016October 24, 2018Historical Society of the New York CourtsUncategorized, Blog, Education, Garfinkel Essay Scholarship2 Comments

Anniversaries are special occasions, and the tenth anniversary of the David A. Garfinkel Essay Scholarship is especially precious because it was so dear to the heart of our beloved Founder, former Chief Judge Judith S. Kaye. At the end of a Board of Trustees meeting, she and trustee Barry Garfinkel fell into conversation about possible educational initiatives. They concluded that an essay scholarship for students beginning their college careers would be the ideal first project. Barry, on behalf of himself and his wife Gloria, offered to fund the prize in memory of their son. That was January 2008, and the scholarship has gone from strength to strength in the intervening years.

As we talked about the details, Chief Judge Kaye decided that Law Day would be the perfect time to present the prize — this meant that we had less than three months to launch the competition and select the winner. Educating young people about government and democracy was always very important to Judge Kaye, and because she believed that SUNY and CUNY Community Colleges filled a vital role in providing access to higher education to all, she designated the state’s community college students as the group to which the new scholarship should be awarded. Barry and Gloria Garfinkel were in total agreement about the value to society of the community college system and happily endorsed her suggestion.

As required by law, The Historical Society of the New York Courts had been formed by a charter from the New York State Board of Regents and so, from its inception, the Society was incorporated as an educational institution. When the Society launched the essay scholarship, we realized the true value of this designation — the education establishment warmly embraced our project and Cornell University, which ran an annual meeting for Community College Social Studies teachers, offered to promote the contest at an upcoming conference.

Judith S. Kaye and Elijah Fagan-Solis — Judith S. Kaye with Inaugural Grand Prize Winner Elijah Fagan-Solis

Selecting the topic for the first essay scholarship proved easy — one of our fellow trustees, John Gordan III, had recently published an account of an historically important case, the Lemmon Slave Case, in the Society’s magazine. This detailed account of how the New York court system was pivotal in freeing twelve enslaved people who had arrived in New York harbor in transit from Virginia to Texas provided a wonderful resource for the students. Our first winner was a young man from Hudson Valley Community College, Elijah Fagan-Solis. The 2008 Law Day ceremony was held outdoors on the steps of Court of Appeals Hall, and all of the Fagan-Solis family were in attendance to see their son and brother receive the prize and the congratulations of Chief Judge Kaye, Governor Eliot Spitzer, Attorney General Andrew Cuomo, New York State Bar Association President Kathryn Grant Madigan, and Gloria and Barry Garfinkel, sponsors of the competition. His mentor, Professor Kathryn Sullivan, also celebrated his success. The text of Elijah’s essay can be found here.

Why a Historical Society for the Courts of New York?

October 5, 2016October 24, 2018Historical Society of the New York CourtsUncategorized, Blog, Court of Appeals Judges, New York Legal History

Imagine you go to your job every day in a beautiful office surrounded by stunning portraits of people you know nothing about. Imagine these watching eyes as spectators of your and your colleagues’ work. Imagine wondering about who these people were and what they must have done to get their portraits painted.

Now imagine your office is the Court of Appeals Hall in Albany, New York.

For Chief Judge Judith S. Kaye and Associate Judge Albert M. Rosenblatt, this wasn’t an exercise in imagination; they actually were surrounded by portraits of judges they didn’t know and books with annotations written in past judges’ hands. However, there was little information at the Court of Appeals about who the judges had been or what they had done. This caused the two to think critically about the history of the Judiciary in the State of New York and how that history could be preserved and shared.

“Al Rosenblatt, wonderfully curious, endlessly, boundlessly curious person that he is, he and I would often talk about these things…” recounts Judge Kaye in her Oral History, recorded for the Historical Society in 2011. “Once Judge Rosenblatt is interested in something, beware, because he will take it to its very depths. Over the years, over the next years, he began…learning more and more and more about the Judges. Eventually of course, there was that wonderful book published [by the Historical Society of the New York Courts], more than a thousand pages on Judges of the Court of Appeals… There we were, digging into the history of the Court of Appeals, and then the interest broadened and broadened, as justifiably it should have, to the court system in the State of New York. We have a great history and a great heritage, so with our extraordinary – I don’t know what to call her, librarian, another person boundlessly curious and very scholarly and marvelous at research and everything else, Frances Murray [Chief Legal Reference Attorney of the Court of Appeals]… joined forces with Judge Rosenblatt and me, and we were sort of rolling along until we [found] Marilyn [Marcus, Executive Director]… and got structure and organization and boy, has this ever taken off.” (Judge Kaye’s Oral History 2011, page 32-33.)

Podcast on Event “Bad Apples in the Big Apple: Notorious Criminal Trials in New York”

July 22, 2016October 24, 2018Historical Society of the New York CourtsUncategorized, Blog, New York Legal History, Notable Cases, Public Events

This blog entry was written by John Caher, the court system’s senior advisor for strategic and technical communications. It discusses his recent interview with the Hon. Albert M. Rosenblatt, President of The Historical Society of the New York Courts, and the Hon. Michael Obus, Administrative Judge for Criminal Matters in New York County. Judges Rosenblatt and Obus were interviewed by Caher for an “Amici” podcast (the court system maintains a self-produced podcast library at http://www.nycourts.gov/admin/amici/index.shtml) on the upcoming program, “Bad Apples in the Big Apple: Notorious Criminal Trials in New York.”

New York tends to do everything in a big way (often to excess), including organized crime, and its bad apples are among the rottenest in American history. At an event July 28 at the New York City Bar Association, Judge Rosenblatt will introduce and Judge Obus will moderate a unique program on the history of organized crime cases, featuring a panel discussion among trial lawyers. I was fortunate to get both judges on the line for an Amici podcast interview—and if the July 28 program is as interesting and entertaining as the judges, the audience is in for a real treat.

Here are a couple excerpts:

Judge Rosenblatt: “When you think about ethnicity, we cover the whole spectrum, and when you look at some of the baddies in the 30’s and 40’s, immediately you come to names like Meyer Lansky and Arnold Rothstein and Benny Siegel and Dutch Schultz and Legs Diamond. I think most of those guys are Jewish, and it probably reflects early immigration practices—people coming at the bottom of the barrel, so to speak, most of whom go on to live good, orderly lives, and some of whom seek the opposite direction. So, sure, all the ethnics had their turn in that department.”

Love Triangles, Death, and Doubt: People v. Gillette and An American Tragedy

July 5, 2016October 24, 2018Historical Society of the New York CourtsUncategorized, Blog

This article was written by Susan N. Herman, Centennial Professor of Law at Brooklyn Law School and the President of the American Civil Liberties Union. She has spoken and written extensively on topics including law & literature, constitutional law, and criminal procedure. Her most recent book is Taking Liberties: The War on Terror and the Erosion of American Democracy. Prof. Herman talks more extensively about People v. Gillette in Issue 11 of The Historical Society of the New York Courts’ Judicial Notice, a journal of articles of historical substance and scholarship that uniquely focuses on New York legal history. This latest issue of Judicial Notice is ready to be shipped out and is only available to Society Members. Don’t miss out and become a member by clicking on the following link: Join the Society.

Photo: The Post-Standard, December 5, 1906. Courtesy Old Fulton Postcards, fultonhistory.com

Over a hundred years ago, a New York jury convicted Chester Gillette of a murder he may or may not have committed.

Almost a hundred years ago, a fictional jury in Theodore Dreiser’s masterful novel An American Tragedy convicted the identically initialed Clyde Griffiths of what was essentially the same crime.

For years after the Gillette trial, people debated whether or not the conviction had been just: in the words of a popular song, “only God and Gillette” knew for sure if Chester Gillette was actually a murderer. The readers of An American Tragedy are still pondering not only the justice of the verdict against Gillette’s doppelganger, but the nature of the society that shaped him.

When Chief Judge Judith Kaye invited me in 2006 to give a law and literature talk at the newly renovated Court of Appeals on the hundredth anniversary of the Gillette case, I agreed without yet knowing just how rich and rewarding it would be to compare the actual trial with Dreiser’s adaptation. The Historical Society of the New York Courts invited me to give an encore talk at the New York City Bar Association a few years later, and I was very pleased to accept the Historical Society’s recent invitation to publish a written version of my account, “People v. Gillette and Theodore Dreiser’s An American Tragedy: Law v. Literature,” in 11 JUDICIAL NOTICE (2016).