By Solomon N. Klein, Litigation Partner
The EDNY Blog rarely expresses sentiment – though every blog post is in fact an expression of respect for the Judges of the EDNY and our notion that the EDNY occupies a rightful place among the leading legal institutions in the country.
This upcoming 13th of January will be the tenth anniversary (yartzeit) of the passing of District Judge David Gershon Trager, for whom my professional respect and personal feelings cannot be separated. I feel compelled to write about his judgeship and his importance to the EDNY – especially given that the Judge’s integrity and sense of duty prevented him from self-promotion during his lifetime.
A proper remembrance of the Judge would go beyond his intellectual and judicial accomplishments, to encompass his overall righteousness as a person – his public service, courage, truthfulness, dedication to his family and friends, patriotism, and faith. Yet even in this limited reflection on his judgeship, these broader traits shine through.
A graduate of Harvard Law School, the Judge was appointed as District Judge in 1993 after a long and accomplished career serving the public, including positions as the United States Attorney for the Eastern District of New York and Dean of Brooklyn Law School. I was privileged to serve as the Judge’s law clerk in 2002-2003, together with my law firm partner, Bradley Nash, and Janine (Guido) Waldman. The EDNY at the time was a smaller universe in a smaller courthouse, and the Judge was appointed when federal sentencing jurisprudence was firmly in the grasp of the then-mandatory sentencing guidelines.
The Judge’s sense of mercy and decency was a central part of his judgeship, and was fundamentally at odds with the unyielding application of the mandatory sentencing guidelines. The Judge’s mercy was not the result of an aversion to imposing punishment – the Judge was not an outwardly soft man and he looked defendants directly in the eye at sentencing. When he was a prosecutor, the Judge had relentlessly pursued untouchable politicians and mobsters – even those with the capacity to exact revenge. Rather, the Judge’s mercy was sourced in a sense of justice and decency: that the government must justify each day of a defendant’s sentence and that mercy is a moral imperative for those in positions of power.
Not surprisingly, Judge Trager’s criminal sentencing yielded quite a few downward departures (though he also issued an upward departure when concerned for the public safety). Some downward departures required creativity, but at least once he recognized that he really did not have much to go on but nonetheless refused to impose an unjust sentence for a relatively minor drug offender. Acknowledging to the government that “I have no doubt if you appeal I will be reversed,” he decried the “absolutely irrational and Draconian” aspects of the guidelines and invited a reversal just to spare the defendant three months from a two-year sentence. See United States v. Young, 143 F.3d 740 (2d Cir. 1998).
Indeed, if Supreme Court justices are recognized by how their dissents fare with the passage of time, I consider the Second Circuit case in Young, where the Judge’s downward departure was reversed, as illuminating the Judge’s most noble qualities. Over twenty years later, the Judge’s colloquy on the record in that case stands as an enduring ode to the Judge and his principles.
The Judge was not unique in the EDNY in this regard, and I suspect it pleased the Judge greatly when the GAO’s report on federal drug sentencing stated that “downward departures were especially common in New York Eastern . . .”
The Judge’s humility and sense of duty also made the Courtroom respectful and his rulings timely and fair. He rarely adorned himself with a robe, except during jury trials in appreciation of their service (“jurors expect a judge with a robe and a gavel”). He granted lawyers their professional due and was especially sympathetic to the burdens of solo practitioners. Pro se litigants received a remarkable amount of patience.
Each case mattered – no matter the size of the dispute. I remember the Judge spending an hour at a court conference and laboring to understand the issues even though the amount in dispute was miniscule.
He once gave the law clerks a pep talk where he said about himself: “I was not the best or the smartest, but I always did my work on time as best I could . . .” We rolled our eyes, but it reflected a significant truth in how the Judge viewed himself. He considered his judgeship an opportunity to serve and that his greatest contribution to the Court would be his work ethic rather than his intellectual brilliance.
But it was not all about hard work: No judicial task gave the Judge more joy than presiding over naturalization ceremonies. There was a certain bounce to his step on those days that he shared the gift of American citizenship – I vaguely remember the ceremonies to be on certain Fridays but it has been so long ago.
No reflection on the Judge would be complete without mentioning the heart and soul of the Judge’s personal life: his wife Roberta, and their children, the beloved Mara (tragically passed), Josiah and Naomi.
The Judge passed at the age of 73 – an accomplished and consequential life, but without the blessings of old age. The Judge, however, would never be heard to complain. In the face of a terminal diagnosis, he continued the task of judging, saying with some sadness but no self-pity: “I will continue living for as long as I live.”
David Gershon son of Solomon Trager, may his memory be a blessing.
Posted by Solomon N. Klein, Litigation Partner