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a sense of balance

Serving justice with
a sense of balance

The witness recalled it clearly: The priest–that white-bearded man over there waving from the defense table–talked to him about paying $150,000 in cash to buy a Florida home.
Father Pat Moloney was on trial charged with conspiring to dispose of stolen property–$7.4 million heisted from Brinks Inc. armored car service in Rochester.
Defending him at the fall 1994 trial was Federal Public Defender Jonathan Feldman.
Evidence of Moloney throwing cash around was critical to the prosecution’s case. So critical that prosecutors had flown this witness from Florida to tell a federal jury in Rochester his story about the New York City priest, the Florida home and the $150,000 cash.
Then the federal prosecutor turned the witness over to Feldman.
And Feldman turned the witness over.
Actually, the witness was running a yard sale when the priest pulled up in his battered old car to look over the used household items.
And actually, it was the witness, not the priest, who talked about selling his house for cash. In fact, the witness always had insisted on selling his house for cold, hard cash, and still was trying to do so.
In truth, the prosecution witness said, Moloney drove away from the yard sale without spending a dime. The witness never heard from the priest again.
During the nine weeks of Moloney’s trial, Feldman and co-defender William Clauss hijacked a number of witnesses, in similar fashion.
That every set of facts has at least two sides is a legal axiom, the basis of the adversary system. Feldman has worked with that axiom as both a prosecutor and a defender.
In one sense, he says, he now is back where he started. Recently named U.S. magistrate for the Western District of New York, he will operate out of the offices he used to occupy as an assistant U.S. attorney.
In another sense, Feldman never moved far from his home base of belief that prosecutors, defenders and judges ultimately serve the same goal: keeping law an active social force.
“I am one of those people who believes there should be a stop between the arrest and the jailhouse,” Feldman says.
As magistrate, he will be the first stop for those accused of federal crimes. He also may be the last stop for many business disputes, if his plans to encourage mediation work out.
Except for felonies, federal magistrates can handle most matters start to finish, as long as the parties agree.
And Feldman will preside over crucial pretrial bouts in many cases, supporting the federal judges who retain ultimate responsibility.
At 39, the new magistrate brings to his position a notable set of credentials: He was the first federal public defender for the Western District, a private practitioner who launched the area’s first alternative dispute resolution enterprise, an associate in a large law firm, an assistant U.S. attorney and one of U.S. District Court Judge Michael Telesca’s first law clerks.
Feldman was second in his class when he graduated from the Syracuse University College of Law in 1981, after earning a bachelor’s degree from Cornell University’s New York State School of Industrial and Labor Relations.
Although Moloney was convicted of conspiring to possess stolen property, the verdict in his trial illustrates another legal axiom: Rarely does anyone walk out of court a total winner or a total loser.
Moloney was not convicted of the two most serious of the three charges he faced. The credit for knocking those charges out in the middle of the trial, Clauss says, belongs to Feldman.
“We came into the case late and had to dig in on a 24-hour-a-day basis to catch up,” Clauss recalls. “Jon is a disciplined, focused researcher. His legal arguments got those charges dismissed.”
In four years as federal public defender, Feldman saw a lot of charges dismissed.
Do innocent people get into the criminal justice system? “Absolutely,” he says.
But roughly 90 percent of criminal charges result in plea bargains. The process of arriving at those bargains, Feldman says, is not all that different from the fact-finding and negotiation that precedes civil settlements.
As magistrate, he can handle misdemeanor charges beginning to end. And he plans to do it creatively.
“When dealing with misdemeanors, you get more first-time offenders and more discretion in terms of sentencing,” Feldman says. “One of the goals I have for this office is to come up with alternatives to straight probation or straight jail.”
He may be knocking on doors in the local business community, asking for assistance in salvaging the still-salvageable with jobs and training.
Product of a privileged background–there are more lawyers in his family than on most episodes of “Law & Order”–Feldman views creative sentencing as a way to spread opportunities around.
“In this community, the gap between the haves and the have-nots is enormous,” Feldman says. “In some segments, there is a real sense of hopelessness that perhaps we can begin to tackle.”
If he sounds slightly idealistic, maybe that is because he is. Feldman also thinks businesses embroiled in litigation will benefit from a sit-down with the magistrate to cool off and talk things over.
“Once people realize the courtroom is not the real world and courts can only offer certain limited types of relief, they become more open to coming up with their own solutions, remedies a court would not even be able to approach,” he says.
Instead of the formalized choreography of a settlement conference, the new magistrate plans to offer his services as a mediator–one who promotes communication.
“Getting to mediation is a learning curve for lawyers, even more than for the parties,” Feldman says. “I think lawyers will be more receptive if the judge suggests mediation and presides at it.”
He trained as a mediator during his five years in private practice as a partner in Geraci and Feldman here, and directed United States Arbitration and Mediation of Upstate New York Inc.
“Jon will be a great magistrate not just because he is an excellent trial lawyer, but because he has the whole range of experience behind him,” said David Rothenberg of Geiger & Rothenberg LLP. “I like seeing someone on the bench who has faced the demands of the private sector.”
In February 1992, the Second Circuit Court of Appeals chose Feldman to shape the embryonic office of the federal public defender.
Until that time, a panel of attorneys and judges had been scrambling to line up defenders for the indigent accused. But the pace of federal criminal law enforcement called for something more.
“We started without even a paper clip,” Feldman recalls. But he took the office from zero to a staff of 15 and established its reputation as a criminal law research and training center.
“I hear about offices where the boss makes people nervous and I don’t really understand what goes on there,” says Clauss, one of Feldman’s earliest hires. “Jon led by example of hard work, compassion for the clients and commitment to the criminal justice system.”
Even on the many nights where an idea for a line of research or questioning jolted him out of a sound sleep, Feldman says, the demands of trial work did not cost him a happy home life.
Wife Jill clerked for former Supreme Court Justice Richard Rosenbloom for 14 years. Only in the past year has she left full-time legal work to stay at home with son Jason, 8, and daughter Jayme, 10.
“Family life is the best antidote to trial stress,” Feldman says.
Life behind the bench, Feldman fears, will be lonelier than practicing as an advocate. But, as always, “I have never had a job yet where I wasn’t excited about coming to work.”
So, which TV drama is closest to the reality of work in the justice system: “L.A. Law,” “Law & Order” or “Murder One”?
“Seinfeld,” Feldman responds.

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