Back in the 1960s, Gene D. Cohen says, he was an unlikely Army police captain — three inches shorter than the rule book limit and “the only Jew in the battalion” — but that’s where he was assigned after Penn State ROTC.
He came home to Philly, where, amid his long law career, he presided over major commercial cases, pulling two stints as an unlikely Common Pleas Court judge: was tapped by Gov. Bob Casey and retained by voters (1988 to 2005) as a replacement for elected judges snared in the Roofers Union campaign-cash scandal; and was returned to the bench as an appointed senior judge (2016-19).
"The pay was bad, the hours weren’t terrific, the computers broke down,” he said, so at 77 he gave it up again, after delivering last year’s Duffield House ruling, ordering the city to repay landlords $50 million to reverse an unconstitutional tax increase. (The city has appealed.)
It wasn’t the first Cohen decision that turned on explosive and expensive issues of city governance. Back in private practice at the Horn Williamson firm — under Jennifer Horn, who worked for him at his previous firm, Cohen Seglias — Cohen sat for an interview to review key cases and issues.
In 2004, Cohen rejected a settlement between Pennsylvania and a venture capital firm that had sent state pension funds to an investor who blew them on a lobster company and other unapproved investments. The state and other clients lost nearly $100 million.
Cohen refused to approve a city malpractice settlement with the city’s own law firms, which, as he saw it, had aided and abetted the unlawful and unsuccessful investment, and settled in the dark — “lacking transparency.”
That got my attention. How often does a judge take the public’s side in stopping a cozy deal among government officials and the contractors who ripped them off?
Public pensions, Cohen notes, invest billions under processes hidden from public review: “I don’t understand the necessity for almost total confidentiality in the selection of the fund managers,” or for hiding fat profits private managers collect from state investments. “I’m surprised there has not been more serious investigations.”
“I like what you’ve written about the public pension funds in Pennsylvania. But I don’t think you hit them nearly hard enough,” Cohen told me.
That suspect settlement was born in the dark, through confidential mediation. The process didn’t even try to pin responsibility for the losses, Cohen said: “It was all about getting to ‘Yes’ from a dollar point of view." He refused to “sign a blank check.”
Cohen’s justice was overturned on appeal in 2005, but you could say he has been vindicated by events: The unauthorized investor, Michael Liberty, went on to raise hundreds of millions more, much of it from Philadelphia-area sources, for Mozido, a telecom start-up that failed to thrive as promised. In 2017 Liberty was jailed for campaign finance fraud. Last year he was indicted on fraud charges related to Mozido, which he is contesting.
If the Mozido investors didn’t know Liberty’s past, it’s no wonder: Not even Judge Cohen was told his name, given the secrecy around the mediation. “I don’t think there should be much secrecy,” Cohen concluded. “If the public has an interest in the outcome of a matter, the idea of using the courts as a cover-up — I hate to use that word — is certainly not something I favor.”
Under Pennsylvania’s Act 111 from 1968, police disputes over firings and disciplinary actions are typically assigned to arbitrators whose word is final and whose selection is partly decided by police representatives. The practice is blamed for Philadelphia’s apparent inability to fire police officers whose actions force the city to pay millions in damages.
“It appears that, because they want to continue to be selected as arbitrators, their decisions are sometimes more favorable to the people who regularly select them," Cohen says. One solution, he suggests, would be random arbitrator selection, so arbitrators can’t be blackballed for ruling in muncipalities’ favor.
Cohen credits his years as an Army police captain, including injuries from a raid on a soldier turned heroin dealer, for helping make him “not a brave person,” but at least “unafraid to stand up and do whatever I had to do.”
That became useful as a judge in Philadelphia, where political ties are sometimes called on by plaintiff’s and defense lawyers, and by judges whose families sometimes want jobs and favors. “There’s a lot of that," Cohen says. “In a nonjury trial, a defendant brought a State Senator to represent them. I found them guilty. It had no impact on me.
"Maybe a legislator, a councilman, can sometimes compromise their values for optimal reasons. A judge cannot. It is a position of trust. I never put my family on the [public] payroll. And I don’t see myself compromising because f what the repercussions might be.”
Before he was a judge: Cohen, who had been the Republican candidate for city sheriff in 1975, found himself a few years later accused of “disloyalty” by a fellow Republican, a senior state official, when he resigned as a state medical licensing hearing officer in protest of the state medical board’s failure to pull the license of a Lankenau Hospital gynecologist “accused by a dozen women of 36 episodes of sexual misconduct.” He left the party, and later applauded the amateur board’s replacement by professional administrative-law judges.
Overseeing one of the secretive citizen juries that reviews and typically approves prosecutors’ recommendations, “sometimes you had to say ‘no’ to the district attorney," says Cohen. "If I thought an attempted prosecution was more political than criminal, I would interfere. That would infuriate them.”
He cited the 1992 case of “Window Washing Charlie” Matthews, a West Philadelphia man who was reported by neighbors for waving a gun on his porch. Responding officers fired more than 90 shots, killing him. His gun turned out to be empty.
District Attorney Lynne Abraham’s office submitted paperwork to charge several of the officers. Cohen quashed it, leaving charges only against a senior officer accused of shooting the man in his head at close range after he had fallen. (The officer was eventually acquitted on appeal.)
Cohen cites his cop experience: “I knew what it was like, to hold a gun on somebody, and a gun pointing at me,” he told me. “I knew what the police had gone through. They may have been negligent," but did not act with criminal intent. He felt blowback from the D.A.'s office, some of which circulated in writing. He didn’t regret what he did.
Unlike with mediation and arbitration, Cohen calls grand jury secrecy a necessity: “These are criminal proceedings. You have to protect the witnesses.”
Citizens are outraged, Cohen notes, when they learn that drug gangs or white-collar thieves have hurt victims for years, with investigators’ knowledge, until prosecutors finally press charges.
Are these delays more common among appointed federal prosecutors? “Their concept, to me, is more of law enforcement than crime prevention," Cohen said. "When they get wind somebody is committing crimes, they may watch and wait for two or three years, until they have a drop-dead case. Meanwhile, people are being injured.”
By contrast, Pennsylvania’s elected district attorneys, who face the voters, are "more about crime prevention. As soon as a crime is committed, they tend to act, and not wait until they get 100% assurance of a conviction.”
Pennsylvania judicial candidates are expected to contribute to political parties to get elected; they raise money from lawyers, who may someday have cases before them. And counties at times elected jurists who “were not all that smart,” Cohen said.
He prefers the “Missouri system,” under which judges are first screened and appointed, then after several years subject to public retention votes. He notes he was one of 12 Casey-appointed post-Roofers judges retained by voters when they ran for second terms, showing the process worked: “Nobody disgraced themselves. Which was saying something in a court that had all kinds of issues in those days.”
Cohen was among the judges picked to hear business cases in a special Common Pleas Court section, one of the first set up by U.S. cities.
“The general principle is that businesses and legal disputants want their matters reached as quickly and intelligently as possible," he said. Without juries or long pretrial conferences, “you get inside the cases real quickly. Litigants want it over as soon as possible; they want a decision on how to proceed with their business.
"You know, lawyers are like molecules, they take up all available space. I used to say, ‘Dispose of the inventory, and don’t embarrass the court.’That’s kind of a low bar. But it’s a high-volume court.”
(This online column contains additional material that was not in the printed story due to space constraints)