Judge David Novak – Nominee to the U.S. District Court for the Eastern District of Virginia

Twelve years ago, a young prosecutor named David Novak was nominated to serve on the U.S. District Court for the Eastern District of Virginia, only to see his nomination stalled.  Today, Novak, now a federal magistrate judge, is getting a second shot at that court.

Background

David John Novak was born in Greensburg PA in 1961.  He received a B.S. magna cum laude from St. Vincent College in Latrobe PA in 1983 and then got a J.D. from Villanova University Law School in 1986.[1]

After graduation, Novak worked as an Assistant District Attorney at the Philadelphia District Attorney’s Office and then worked as a federal prosecutor in the U.S. Attorney’s Office for the Southern District of Texas.[2]  In 1994, Novak moved to the U.S. Attorney’s Office for the Eastern District of Virginia.[3]

In 2007, Novak was nominated by President George W. Bush for a seat on the U.S. District Court for the Eastern District of Virginia vacated by Judge Robert Payne.[4]  While Novak received a hearing before the Senate Judiciary Committee in 2008, his nomination was never approved by Committee and he was not confirmed before the end of the 110th Congress.  President Obama chose not to renominate Novak, instead choosing John Gibney, who was confirmed and serves today.

In 2012, Novak was appointed as a U.S. Magistrate Judge in the Richmond Division of the U.S. District Court for the Eastern District of Virginia.  He continues to serve there today.

History of the Seat

Novak has been nominated for a seat on the U.S. District Court for the Eastern District of Virginia.  This seat opened on June 1, 2018, when Judge Henry Hudson moved to senior status.  While Novak originally applied for an Alexandria based vacancy that opened with Judge Gerald Lee’s retirement, he was not recommended for that seat and was instead supported by Virginia Senators Mark Warner and Tim Kaine, both Democrats, for the Richmond-based seat opened by Judge Hudson.  Novak was nominated on March 15, 2019.

Legal Experience

Novak spent virtually all of his career prior to taking the bench as a prosecutor, working first in Philadelphia, then in Houston, and finally in Richmond.  In Richmond, Novak became Chief of the Criminal Division in 2010, overseeing the criminal prosecutors under U.S. Attorney Neil McBride.

Most notably, Novak was the lead prosecutor against Zacarias Moussaoui, a French national who pleaded guilty of conspiring with Al Qaeda to kill American citizens in the September 11 attacks.[5]  On behalf of the Department of Justice, Novak presented evidence to the jury seeking the death penalty against Moussaoui.[6]  The case hit a hurdle when it was revealed that TSA Attorney Carla J. Martin had coached witnesses in violation of Judge Leonie Brinkema’s orders.[7]  Novak himself acknowledged the egrigiousness of Martin’s actions in court, which led Brinkema to impose a sanction against the government.  Ultimately, the jury decided not to impose the death penalty on Moussaoui, prompting the defendant to proclaim: “America, you lost; you lost, Novak. I won.”[8]

Jurisprudence

Novak has served as a U.S. Magistrate Judge since 2012.  In this capacity, Novak oversees discovery, adjudicates cases where jurisdiction is consented to, and presides over settlement.  In his time as a magistrate, Novak has presided over 7 bench and 3 jury trials.  Among his most significant trials, Novak presided over a negligence trial arising from a motorcyclist injured after being struck by an eighteen-wheeler.[9]

Over his seven years on the bench, Novak’s rulings have been partially reversed by higher courts six times.[10]  None of these reversals involve controversial issues or detail significant criticism of Novak’s reasoning.

Writings

In 1999, Novak authored an article[11] to provide guidance for federal prosecutors on handling death penalty cases.[12]  In the article, Novak outlines the various unique processes and issues that are raised in a capital case, including the notices issued by the Department of Justice, discovery, victim impact evidence, and voir dire.  Overall, Novak concludes that death penalty cases require “an enormous amount of preparation” and that prosecutors must “be dedicated to learning all aspects of the defendant’s life.”[13]

Political Activity

As a federal prosecutor, Novak occasionally donated to Republican candidates, including donations to U.S. Senator George Allen, N.Y.C.Mayor Rudolph Giuliani, and Rep. Eric Cantor.[16]

Overall Assessment

While Novak’s initial nomination to the federal bench stalled, his path to the federal bench looks much smoother this time around.  As Novak has already gotten the sign-off of Virginia’s Democratic senators, and given his impressive resume, it is more a question of when, rather than if, Novak will be confirmed.


[1] Sen. Comm. on the Judiciary, 115th Cong., David J. Novak Jr.: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. 

[4] Press Release, Warner and Webb Applaud Selection of Davis, Novak for Federal Judgeships (Office of Sens. Warner and Webb) (Nov. 15, 2007).

[5] Philip Sh and Benjamin Weiser, 2 Rival Legal Teams For ‘20th Hijacker’ Case, N.Y. Times, Dec. 18, 2001.

[6] Brooke A. Masters, U.S. Defends Its Moussaoui Stance, Wash. Post, May 11, 2002.

[7] Jerry Markon and Timothy Dwyer, Judge Halts Terror Trial, Wash. Post, Mar. 14, 2006.

[8] Neil A. Lewis, 911 Plotter Gets Life in Jail; Jury Swayed By Moussaoui’s Tough Childhood, Pittsburgh Post Gazette, May 4, 2006.

[9] Scott v. Watsontown Trucking Co., 920 F. Supp. 2d 644 (E.D. Va. 2013), aff’d, 553 F. App’x 259 (4th Cir. 2013).

[10] See Taylor v. Timepayment Corp., 2019 WL 1375594 (E.D. Va. Feb. 5, 2019); Testemark v. Berryhill, 736 F. App’x 395 (4th Cir. 2018); Parham v. Comm’r of Soc. Sec., 627 F. App’x 233 (4th Cir. 2015); Loving v. Astrue, 2012 WL 4329277 (E.D. Va. June 22, 2012); Fed. Nat’l Mortg. Assoc. v. CG Bellkor, LLC, 980 F. Supp. 2d 703 (E.D. Va. 2013); L. Foster Consulting, LLC v. XL Group, Inc., 2012 WL 2785904 (E.D. Va. June 1, 2012).

[11] The article was reviewed and incorporated feedback by then AUSA James Comey (who has since become famous for his tenure at the Department of Justice).

[12] David J. Novak, Trial Advocacy: Anatomy of a Federal Death Penalty Prosecution: A Primer for Prosecution, 50 S.C. L. Rev. 645 (Spring 1999).

[13] Id. at 677.

[14] Id. (quoting Judge Rossie Novak).

[15] Brad Kutner, Senator Don McEachin Talks LGBTQ Issues Ahead of the 2016 General Assembly Session, GayRVA, Aug. 26, 2015, http://www.gayrva.com/news-views/senator-don-mceachin-talks-lgbtq-issues-ahead-of-the-2016-general-assembly-session/.  

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