Jurist Before the Bar

He looks like a casting director's choice for the job--plump, bald, ruddy, even a little belligerent. At 70, age has not withered his stern skills nor staled his colorful style. But now, after 23 years on the bench, New York State Supreme Court Justice Samuel Simon Leibowitz finds himself before the bar as a defendant, his very qualifications to serve the law subject to review by a panel of his peers.

Having reached the mandatory retirement age, Judge Leibowitz applied for an extension of his term. By tradition, approval should have been almost automatic. So much about high-court New York judgeships is automatic that it is a tradition around the courthouse that they all but offer a lifetime job. Election to one 14-year term carries a virtual promise of endorsement by both political parties should the judge decide to run again.

So it went with Sam, who was re-elected to the bench in 1954 after a brief fling as a splinter party mayoralty candidate. And so it might have gone with his request to stay on; over the years the Administrative Board of the Judicial Conference has demonstrated a remarkable reluctance to say no. But then, in a strongly worded letter to the conference, the judiciary committee of the New York City Bar Association recalled Sam's "demonstrated lack of judicial temperament, his habitual arrogance and discourtesy to lawyers and litigants, and his frequent embroilment in distasteful and grossly unjudicial incidents."

Unforgivable Error. The harsh charge called up memories of a life of outspoken advocacy and fierce controversy. A Brooklynite, whose parents brought him to the U.S. from Rumania in 1897, Sam Leibowitz went to Cornell Law School and became a dramatically successful criminal lawyer. In the 1920s and '30s, his roster of clients included some of the country's most notorious hoods--Al Capone, Kid Twist Reles, Pittsburgh Phil Strauss. He fought for the Mad Dog Killer and the Bread Knife Murderess, and of more than 100 defendants charged with first-degree murder, Sam saved all but one from the electric chair. The loser made the unforgivable error of leaving his fingerprints behind.

Sam's most celebrated triumph as a lawyer was his defense of the "Scottsboro boys"--nine Negro youths accused of raping two hoboing white women in a railroad freight car near Scottsboro, Ala. An Alabama court sentenced eight of the boys to death and the ninth to life imprisonment. In proceedings that lasted from 1933 to 1937, Leibowitz, serving without fee, won a reversal from the U.S. Supreme Court, succeeded in establishing the legal principle that a Negro cannot be assured a fair trial in a community where Negroes are systematically excluded from jury service.

But Leibowitz made victory the harder and slower by a newspaper interview in which he described the jury members as "bigots whose mouths are slits in their faces, whose eyes pop out at you like frogs, whose chins drip tobacco juice, bewhiskered and filthy." The Alabama judge used the published statement as an excuse to postpone the trials. Sam Leibowitz was already sounding off in the free-wheeling manner which would later get him into continuing trouble on the bench.

Eliminating the Snake. When Lawyer Leibowitz ran as the Democratic candidate for a Brooklyn county-court judgeship in 1940, his opponents warned that a defender of criminals would surely be soft on criminals before the bar. As if in answer, the new judge acquired the nickname "Sentencing Sam." "Once a criminal has the handcuffs on him, he knows it's not going to be a picnic in Kings County Court today," said Leibowitz. He was especially tough on criminals with previous arrests on their records. "I eliminate a poisonous snake from the community."

Over the years complaints piled up about Leibowitz's court, and in one way or another, most of the grumblings reflected the same trait that got Sam into needless trouble in Alabama: he simply could not help putting his opinions and emotions loudly on the line. In the courtroom he referred to an accused criminal as a "rat" or an "animal." Occasionally he broke into a purple tirade. When a big-time gambler who had talked freely to a grand jury later clammed up in court, Leibowitz roared: "I'll give you a thousand years, if necessary! You'll be buried in jail so you'll never see daylight again!"

He could be as rough on lawyers as on defendants, often barked his caustic impatience when counsel seemed to him to be sluggish or ill-prepared. "His facial expressions and gestures," said one critic, "his intonations, his pauses at the proper moment, all clearly indicate his belief or disbelief in a witness' testimony." He got into rows with his colleagues too, once said in open court that he hoped another judge would "keep his filthy mouth shut." The remark brought official rebuke for "using a courtroom as a forum for vilification of a fellow jurist."

A Mighty Arm. The record that bothers the Bar Association committee so much has been a long time in the making. But despite all the contention, and all the criticisms, when the judicial board hands down its decision, it will probably rule for Sentencing Sam. The New York State Association of Trial Lawyers, familiar enough with the lash of the Leibowitz tongue, declares that his "wisdom, courage and ability to maintain decorum in his courtroom have not diminished with the years." Judge Leibowitz, says a lawyer who has been one of his severest critics, "guards against unjust acquittal as well as unjust conviction. He's the toughest judge in the city of New York, but nobody gets sent away who is innocent."

Even colleagues who have found fault with Leibowitz's performance now seem agreed that he ought to be permitted to remain on the bench. Either he, they or all have mellowed. One judge, who calls Leibowitz "egocentric and blustering," nonetheless adds with fraternal loyalty: "This is an able judge, with an understanding of the criminal elements beyond compare. He's a mighty arm, and his aim is in the public weal and interest."

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