Brooklyn Surrogate's Court 2005

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Monday, February 21, 2005

Excavation Time at Brooklyn's Surrogate Court

Footnotes (

by Maurice Gumbs
February 21, 2005

And now it looks very much like the end of a judicial career, or any career for Brooklyn Surrogate’s Court Judge Michael Feinberg.

There is a lesson in this story which we place here at the very beginning. Several persons have already proposed themselves as replacements for Judge Feinberg. Some of them have resumes which guarantee that the sleaziness, the patronage, and predatory nature of the Surrogate’s Court will continue. Footnotes believes that no sitting judge, and no attorney who is identified as part of, or a supporter of, the current County Leadership should be considered as either a temporary or permanent replacement as Judge of the Surrogate’s Court. The opportunity for cheating and self-enrichment is too great to be put into the hands of individuals of this caliber. There is a likelihood of temporary appointment from Governor Pataki. This scandal should prompt the Governor to appoint someone who has a demonstrated history of fearless independence, integrity, and willingness to be an advocate for those who are not empowered by politics and wealth. The Governor’s record of past appointments does not encourage optimism, and voters may have to wait until there is an election to have the right thing done.

Meanwhile, Judge Feinberg has appealed for mercy to the Court of Appeals. The judge’s attorney, Harvey Greenberg, has tearfully admitted to the State Court of Appeals that his client was guilty of serious errors in his conduct. But Harvey pleads that Feinberg should not be removed from the bench because none of his actions were out of greed or the desire to enrich himself.

We know some very righteous people who agree with Harvey that Michael Feinberg is a basically fair, decent and honest guy. But this does not alter the fact that people who depended on the Surrogate’s Court to protect their rights were cheated and harmed under his watch, and that wrong cannot be set aside.

Before the Judicial Panel, Feinberg admitted that the $2,000,000 overpayment to his close friend, the Surrogate’s counsel, had occurred because he (Judge Feinberg) had merely “skimmed through” the rules governing the fees to be paid. In other words, Feinberg had been given the duty of protecting the rights of the heirs of deceased individuals, but really didn’t give a damn about how much was taken out of their estates illegally.

In proposing the “no venial wrong” alibi for his client, Mr. Greenberg ignores the fact that the primary basis for firing most employees, including police officers, teachers, transit workers, nurses, plumbers, and even lawyers, is not venial conduct, but always because of failure to perform their jobs adequately. It is absurd to propose that Judges, who have in their hands the power to destroy the lives of citizens by their incompetence should be held to a lesser standard. Moreover, had Mr. Feinberg’s actions been clearly identified as “venial” by the Judicial Commission, he would already be facing not merely dismissal but criminal charges leading to imprisonment. And the truth is that the judge who served as referee found that Mike Feinberg’s testimony was evasive, and not credible. And so did the 9 panel members who reviewed the referee’s report and listened to Feinberg’s responses. Put bluntly…everybody concluded that Feinberg was lying, and was trying to cover up what he had done. And contrary to Mr. Greenberg’s theory, that finding carries the serious implication of venial behavior.

Judge Feinberg, like many other Brooklyn judges, surely underestimated the fearful responsibility and consequences of violating the posted assurance in Courtrooms which indicates that judges stand in the place of God. Too many of Brooklyn’s shabby so-called “judges” on a daily basis make a mockery of their role as they dispense “bribe-justice,” and ignorant, sloppy decisions to citizens who come before them in good faith, trusting their carefulness, righteousness, and wisdom. In the days of the Old Testament these rogues would be thrown out the windows of their courtrooms and their carcasses left on the sidewalk for dogs and vultures to feed upon or to rot in their stinking black robes. Upon review it is not surprising that this attitude informs the thinking and behavior of Brooklyn’s judges when we see them running for office with sponsors who exhibit the qualities of God’s counterpart.

The immutable rule in this life for all human beings is that when we rob or cheat or harm or hurt children, widows, orphans, the poor, the sick, the disabled, the unempowered, and the innocent, we will not escape ultimate and severe punishment.

There is sometimes the perception among judges, elected officials, and other powerful men that they may commit these deeds with impunity. That is no more than an illusion. The infinite symmetry and justice of the Universe will not allow it. And in the end it may be better off for those who perpetrate or condone injustice to receive the prompt, harsh strokes on their own backs rather than have the fierce punishment fall heavily on the bodies of their innocent children or grandchildren who are guilty only by virtue of their kinship. So, for Mike Feinberg, being dumped from the bench may be a blessing to his family and loved ones which he should accept with humility and without protest.

A Footnotes article reflected on all of this several years ago when the seamy side of the Surrogate’s Court first appeared. We knew that State Senator Carl Andrews had spent most of his political career as nothing more than a puppet of Clarence Norman. In fact, Carl cannot deny that this writer warned him on many occasions of the consequence of this relationship. And in 1997, when we saw that Carl had been appointed auctioneer of the Surrogate’s Court we knew exactly what was about to happen. We also reminded Brooklynites of the importance of making a will if they did not want their estates to fall into the hands of ambitious and predatory politicians

Later on, we believe that it was Jack Newfield (or was it Jimmy Breslin) who told one story of how shabbily the Brooklyn Surrogate’s Court Administration had dealt with money due to the poor family of a deceased Mexican immigrant. The anecdote described how, in spite of a federal judge’s order, funds belonging to the dead man’s family had been callously tied up in the Brooklyn Surrogate’s Court possibly with the intent of churning more fees and adding more charges. Newfield recounted his frustrating and fruitless attempts to get the Public Administrator and her counsel to move on the matter. It appeared to be the norm rather than the exception in Surrogat’se Court. And we understood that such stories were legion.

It took a painfully long 3 years for the referee and the Judicial Panel to determine that Michael Feinberg was guilty of serious dereliction of duty. The Judicial Panel of the Universe also proceeds at its own leisurely pace. But the outcome is far more certain, and infinitely more severe in its punishment. And besides, there will be no connected appointees from Governor Pataki or Speaker Sheldon Silver on that panel to intervene on behalf of the guilty or make excuses for their misconduct.

We believe that the New York Court of Appeals will have no choice but to sustain the decision to bounce Feinberg. The stench of corruption in Brooklyn’s Courts is too nauseating to be tolerated any longer. The filth has risen to mouth-level. For several years Chief Justice Kaye’s face has gagged impotently on this diet of dishonor. Moreover, the Court of Appeals cannot in good conscience give Judge Feinberg a reprieve and keep him on the bench when the fact-finders who reviewed the records over 3 years and listened to his testimony determined that he was not only incompetent, and irresponsible, but evasive, not credible, unreliable, and unconvincing. They pretty much called him a “damn liar.” For its own sake, and as a small step towards restoring the integrity and credibility of the New York State Judiciary system, the Court of Appeals will feel obliged to sustain the recommendation to dismiss Mr. Feinberg.

The removal of Marietta Smalls, the Surrogate Court Public Administrator, and of course Louis Rosenthal, her counsel, will automatically follow. In fact, these two are likely to be dismissed long before the final ruling on Judge Feinberg…if they have not been fired already. Moreover, Rosenthal is likely to be required to refund to the estates of heirs over 2 million dollars improperly paid to him from Surrogate’s accounts. Shed no tears for Lou Rosenthal. He gets to keep 8 million dollars and probably much more. Not bad for 5 years of work. We should all be that lucky.

But Footnotes suspects that the decision of the Judicial Commission has exposed only the bare tip of a massive larcenous iceberg. It takes little more than a quick look at the Lou Rosenthal get-rich-quick story to smell something fishy going on, and to realize that the money trail needs to be followed.
A quick summary. In 5 years Lou Rosenthal made an easy $10,000,000 as counsel to the Public Administrator of the Brooklyn Surrogate’s Court. That’s United States dollars. Not Confederate money or Guyanese dollars or Mexican pesos.
Most of Lou’s fortune came from money that belonged to orphans, widows, and people who were desperately in need of every penny of the money Lou was handling. The Surrogate’s Counsel made his money by getting a cut of all the estates and money of people who had died without a will. 6% of the money left to these poor people was enough to make him a multi-millionaire in a few years. But in addition Lou finessed Justice Feinberg into adding on an extra 2% for friendship and for old-time’s sake. The Judicial Panel found no other just reason for this generosity from Mike Feinberg. So no matter how little time Lou spent on a case he got 8% on them all. It was estimated that this gave Lou a bonus of at least $2,000,000 over 5 years. That’s what buddies do for each other.
On top of this, Lou routinely collected extra fees for handling real estate closings on Surrogate’s property and was known to get as much as $33,000 just for referring a wrongful death matter to another attorney. This means that the final income of the Surrogate’s counsel in those 5 years was probably a lot more than the $10,000,000 estimate mentioned above. Keep in mind that the position of counsel to the Public Administrator was just a part-time job for Mr. Rosenthal. Oh Yes. Lou Rosenthal had his own private practice, thank you.

The fact that attorney Lou Rosenthal could make about $10,000,000 on a part time job in five years is very, very strange. In fact it’s awesome. In a New York minute you could have 10,000 topnotch, qualified lawyers willing to wait in line for days to apply for such a job. In freezing rain. But Lou Rosenthal was on Feinberg’s short list of One.

So even stranger and more awesome is the fact that a certain logical question hasn’t been raised as yet by the District Attorney and the State Attorney General.

Is it really possible that an attorney in a position of political patronage could earn 10 million bucks from a part-time job without sharing some of this bonanza with the bosses who made it possible for him to get it? Especially when these political bosses were quite aware that part of this income was being enhanced with at least 2 million bucks more than he was entitled to.

Frankly, we believe that there is not even a question about whether or not Lou Rosenthal shared his bankroll. We take that for granted. Here, the only question is how much of his wealth he shared, what the mechanism was for sharing, and who the individuals were with whom he shared?

Even if the Brooklyn Democratic Party leadership had a reputation for impeccable honesty, it would still be difficult to believe that lucky Lou would get to keep all that cash for himself. No way! No how! But here we’re looking at a situation where both County leader Clarence Norman and his executive director Jeff Feldman have been indicted and are being tried on several charges including Grand Larceny, Bribery, Extortion and Fraud. Let’s face it. We’re not dealing with Mother Teresa. We’re dealing with people who are currently on trial because of greed.

What are we supposed to think? That Clarence and Jeff would put the arm on former Judges Karen Yellen and Marcia Sikowitz for a few thousand dollars and let Lou Rosenthal walk away with 10 million? Never in a million years could we be convinced that these characters would let this goose with 10 million golden eggs escape from their hands untouched.

Let’s back up and put this entire story into some perspective. Mike Feinberg had been a Civil Court judge from 1981 to 1990. He became a State Supreme Court judge in 1991. Generally, only loyal, obedient soldiers of the Democratic Party get to be the Party’s nominees for State Supreme Court. Ask Margarita Lopez Torres. So it’s fair to assume that Mike was a company man who knew the rules of engagement.

In 1996, Mike went to the County bosses Clarence Norman, Jeff Feldman and others for endorsement, just like candidates Karen Yellen and Marcia Sikowitz did when they were running for Civil Court judgeships in 2002. All of them were willing to pay a certain price with the expectation of getting an edge over their opponents.
In the past, County candidates could expect substantial benefits from this endorsement. There was the promise of support in collecting and submitting signatures. They looked forward to the County’s legal hacks knocking off other candidates from the ballot. (Desmond Green and Fern Goldstein were knocked off in 1996. County knocked off 2 candidates in 2002, putting a third Garson (Robin) on the bench with a free ride.) County candidates anticipated sympathetic treatment by “contract” judges in Election Court. They trusted that County employees at the Brooklyn Board of Elections would pass information on to the County’s legal hacks. They felt confident that loyal County employees at the polling sites and machines would be aware that they were “part of the team” and would do what was needed to assist them.

Why else would judges like Karen Yellen and Marcia Sikowitz have gone to Clarence Norman and Jeff Feldman when they were aware of the sleaze factor, and saw the red sign flashing: CAVEAT EMPTOR.
Feinberg’s problems today can probably be traced back to his compliance with what County bosses Norman and Feldman refer to as Party Discipline.

To begin with, we were hearing during that 1996 campaign that candidate Feinberg was being squeezed like a squeegee. We have no idea how much money he put out, but we are assured that it was an all-time record for a Surrogate Court race. The candidate’s supporters complained at the time that the County bosses were using Feinberg like an ATM machine, and that much of the cash was going to Clarence’s inner circle and the Thurgood Marshall Democratic Club.

(As a side note, Judge Martin Marcus was in error when he dated this club’s existence at 2001. That may be the official date of registration with the State Board of Elections, but Thurgood Marshall operated as an “occasional club” receiving money from candidates and other contributors maybe as early as 1988).

One friend of Feinberg described to us recently how the candidate was told 3 days before election day that he had to come up with $80,000 for a Thurgood Marshall club “bring-out-the-vote” operation. When Feinberg protested that he was “tapped out,” he was pushed to borrow the money with a promise that it would be refunded to him immediately after the election. Feinberg reportedly borrowed the money from relatives and friends, and the word is that he is still waiting for that refund check to come to him in the mail.

Once elected, Judge Feinberg, again the loyal soldier, evidently complied with what we think of as paragraph #2 of the unwritten, but time-honored County contract (referred to as the MLT clause). Paragraph # 2 apparently gives the County leader and/or a District leader the option of putting one or two key appointees on a judge’s staff. In this case, Clarence’s best friend, Carl Andrews was selected as the auctioneer for property in the Feinberg Surrogate Court. Marietta Smalls, one of Carl’s dearest friends and a member of Clarence’s inner circle since 1984 was selected as Feinberg’s Public Administrator of the Surrogate’s Court.

For sure, Marietta’s promotion from some humble job was shocking, and we imagine she got a 25 or 35 thousand increase in salary. But $25,000 a year was hardly the reason why County leader Clarence wanted his friend Marietta in what was potentially the most powerful position in the Brooklyn Surrogate Court. There were bigger fish to fry.
In testimony given to the Judicial Panel, Judge Feinberg claimed that attorney Rosenthal was entitled to a 2% increase over the regular Surrogate counsel fee because he was doing the work which the government-funded Public Administrator’s office should have been doing but was not. We interpret this statement to mean that Judge Feinberg considered the office of the Public Administrator under Marietta Smalls to be a sham and that Marietta and maybe others in that office were being paid a salary out of government funds while not doing the job for which they were paid. In giving this testimony, Judge Feinberg has surely invited District Attorney Hynes and State Attorney General Elliot Spitzer to begin an investigation.
But while her counsel, Lou Rosenthal, may have picked up the actual work tab of her office, Marietta Smalls as the official public administrator of record was privy to all business matters and records in the Surrogate’s Court. She was positioned to report back to the County leadership every transaction that were took place. Marietta would know exactly how much money was passing through the hands of her counsel, Lou Rosenthal. She would know what receiverships were available, when lawyers were needed to handle lucrative cases, which estates required administrators, and what real estate properties were to be auctioned or sold. She also knew that Michael Feinberg was giving his pal Lou the extra 2% (2 million bucks) without even requiring paper work. Finally Marietta was in a position to project for the County leadership that by the end of Mike Feinberg’s first term in office, Lou Rosenthal would have make over 30 million dollars in his part time job as her counsel.

We recall at that time that people from the Ed Towns and Genovese camps complained that Clarence had first hijacked Feinberg, and had then hogged all the patronage in the Surrogate’s Court for themselves. But it was a done deed, and their grumbling was of no consequence. Clarence had got his fingers deep into the sweetest pie in New York City and had a broad smile on his face.

Marietta Smalls and Lou Rosenthal have some questions to answer, and it would be truly shocking if they have not had friendly conversations with the District Attorney’s office already. State Senator Carl Andrews should also be able to share some information about how he developed the skills, and where he found the time to become the Surrogate’s Court auctioneer in addition to handling his job working with State Senator Marty Connor in Albany. The list of receivers, administrators and lawyers who worked for the Surrogate’s Court in the years that Lou Rosenthal made his 10 million bucks should also be of interest.

If Brooklyn District Attorney Hynes truly wanted to provide an example of the manipulation of Brooklyn’s courts, the Feinberg situation could be the quintessential example. State Attorney General Elliot Spitzer also has a vested interest in this case, sine the State could have been robbed of substantial amounts accruing from unclaimed estates. But considering the presence of Carl Andrews among the Surrogate’s Court players, and his strange relationship with Spitzer, this is unlikely to be on Elliot’s front-burner.

We may be looking at another job for the guys who were digging up the Mafia graves on Ruby Street. It looks like they have shut down the operation where they were recently keeping an eye on the entire class of Brooklyn State Supreme Court judges having meals at the Torah Club for Judges and Lawyers under the patronage of a lawyer being investigated for bribery. They could be ready to start excavation in Brooklyn’s Surrogate Court.

We did predict several months ago that the Feds would soon move from digging up the mafia corpses in East New York to digging up the mobsters on Court Street. It already looks like we’ve called it correctly, and we have a hunch that the downtown excavation has only just begun.


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