Who's That Prosecutor?

You've heard it before: Don't believe everything you see in the newspapers. That includes the caption beneath photographs.

A bemused client sent me an email yesterday with a link to a story about a case I am trying. Right next to the story was a mug of me, lifted from the shot that accompanies a weekly column I write for the Connecticut Law Tribune. The photograph is me, but the caption is not. I am not a prosecutor.

Check it out: http://www.newstimes.com/news/article/Good-guy-or-calculating-pedophile-276844.php

Say It Ain't So. Edsall Can't Go!

I don't write much about college football. Why would I? I am a University of Michigan fan, and the past three seasons have been akin to a prolonged wake for a proud program. Beginning with an inglorious loss to Appalachian State in a warm up game in 2007, and continuing throughout 2007, 2008 and 2009, the Wolverines show signs of extinction. Fall afternoons are grim at our house these days.

Sustained despair can do things to a man. My need to believe remains constant, however, even as my team whimpers and dies. So somehow, and I count this a miracle, I found myself at the end of the year starting to actually care about the University of Connecticut Huskies. My wife and I watched them beat Notre Dame this year and, pagans that we are, we even started to believe in miracles. And we started to believe in Randy Edsall, the coach of the Huskies.

This morning as I stopped for coffee before heading to the office, I saw the headline of a local paper. Randy Edsall may leave to go to Notre Dame? He might replace the now disgraced Charlie Weiss? Edsall might leave a program he built seemingly from nothing by sheer goodwill, grit and determination? Oh, no! Say it ain't so! Edsall can't go.

But why wouldn't he? I sipped my coffee and glanced at the paper. In a flash, I felt what it must be like to be him. He's transformed UConn's program into a credible Division I team. He is young enough for fresh starts. The college football world is agog over his accomplishment. Like Jesus in the wilderness he is being offered the world.

But Edsall's position is even better than was Jesus'. Satan offered Jesus dominion. And Jesus turned him down. God's university may offer Edsall one of the top perches in college football. There would be fame, fortune, weekly national exposure, better recruiting prospects by atheletes seeking a showcase for NFL scouts. Edsall is being offered a step up on the big three rungs in sociology: class, status and power.

Edsall must be tempted. We all fantasize about making it in the big time. Hell, I'm well on the way to old age and I still harbor the secret hope that I will sometime be given a chance to try the case of the century, whatever that might be.

But I am begging readers to send this column to Edsall. Don't go, Randy. Don't leave a small state with big aspirations. Don't leave the program you built from the ground up. Don't trade us in for Touchdown Jesus and his filthy lucre. The bright lights of weekly media coverage will grow stale. Honest, they will.

The University of Connecticut is not Notre Dame. We have no Knute Rockne in the past. There aren't legendary football traditions treated as ritual. But we are starting something new under the Sun here in the Nutmeg State. Everyman has awakened, flexed his muscles and taken on the ancient gods and goddesses. UConn's program is hopeful, and the people of the state, or, at the very least, my wife and I, have found something new to believe in. Bruce Springstein has found a team.

Don't go, Randy. Please. You're making good money here. You're making history. Your players need you. Your fans need you. And, unless the Wolverines start to kick some serious posterior next year, my wife and I will need you.

Sport is really ritualized combat between good and evil. It is a symbol of all our struggle. We are drawn to it for the relief it yields. Transferring primitive loyalty to the games boys play, we become feral warriors dancing before a war fire the night before we might die. Sport serves the need to believe. It would be unthinkable for Randy Edsall to leave us now, just when we were learning to trust him. Let God take care of Notre Dame; we need Edsall to help us nurture our own secret hopes.

Walking the Lawyer's Walk

I have a dream. One day lawyers will come to court as bitter foes and leave as friends bound together by sweet reason. Discord shall be replaced by harmony, and the gentle tones of civility will flow. Where there was sorrow, there shall be joy; where there was anger, there shall be peace; and we will all, one and all, unite beneath the bowers of justice. I have that dream, and that dream is good.

But until the dream comes true, I will continue to practice law in the State of Connecticut. And that means I will remain mired neck deep in conflict, sorrow and muck. It also means that the courthouse will remain what it is for so many: a place of dread, terror and fear.

I was reminded of this the other day in Middletown. You see, I have wandered into a high-conflict custody battle, and I was attending my first mediation in the Regional Trial Docket.

The day started with a film narrated by Judge Elaine Gordon. The film is a brilliant appeal to the best within us. It is a reminder to parents that their obligations to their children run far deeper than meals and a bed. Children are tender plants and parents are gardeners. Shower a child with love and it blossoms into a complete human being. Stand in the way of Sun and light and nutrients, and growth is stunted. Too often anger, pride, self-righteousness possess a parent in the midst of divorce. When that happens we hurt our kids. All lawyers should watch Judge Gordon's film.

She is right of course. I sat and listened to her with a heavy heart. Many years ago, I divorced and I am ashamed to admit I did not always make the right choices about my children. I still do not forgive my failings. I could have been a better man. It takes a certain amount of courage to fail and keep on hoping.

When I see my clients collapse in fear, anxiety and grief, I see myself on lesser days. And I am reminded that I am merely an ambassador for the sorrows of others.

Those sorrows come in many forms and are caused by many things. Some folks can't get the business of living right no matter how hard they try. Some folks love anger, others sloth, some lust. Some folks are on the cusp of mental illness. I fantasize about a course in the law organized around the seven deadly sins.

"Why are you representing your client?" I have been asked from time to time. The question usually comes from an adversary exasperated with my client. The question leaves me speechless. Why does a doctor treat the sick?

I represent people in need of a lawyer. Sometimes they have been accused of horrible crimes. Stand next to a man accused of murder, and the victim's family will feel about you more or less the way they feel of the accused. I accept that. But I also accept that my client needs me. A friend to the friendless is an honorable role to play. And, of course, I do it for money. That makes me a hired gun, I suppose.

Sometimes my clients do things I disagree with, and they press me to seek goals I would not seek for myself. That causes sleepless nights. But there is a difference between being asked to help another's dream come true and being asked to do something one finds repugnant. I can't fight for what I cannot stomach, and so, in some cases I have asked to be relieved of the responsibility to represent a client.

But here's the rub: I am a lawyer, not a priest, not a judge, not a philosopher. Clients come with visions of the good and ask my help to use the law to achieve their ends. My obligation is to break my back against justice's wheel to make other's dreams come true. I am not a member of a professional guild entitled to tell others how to live.

So I was offended the other day when two lawyers reproached me for representing a man they contemn. The case is exceedingly difficult for all involved. But I am my client's ambassador. Must I remind my adversaries that lawyerly dreams are often not our clients' dreams? It takes imagination to walk in another's shoes. Why are they practicing law?

Pride is the lawyer's sin. The proud lack empathy. Such pride mistakes a dream, however noble, for reality. The sad reality of our courthouses is not sweet reason made plain. Our courts are waking nightmares, and, as lawyers, we walk dark, dark corridors. It takes courage and stamina to walk that walk day by day.

Reprinted courtesy of the Connecticut Law Tribune.

Oedipus Rex: Drama or Docudrama?

This week's trial is a nightmare, and I've had trouble sleeping for days.

A couple of years ago, two parents confronted their teenage daughter with the contents of text messages on her cell phone. A peer was writing to the girl in tones too salacious to be repeated even here. He wanted her, in the most carnal of ways.

The fifteen year old girl was outraged. How could the parents so violate her privacy, she demanded, tearfully.

"We just want you to be safe," the mother replied.

"If you want me to be safe, then you should know what Uncle X did to me," the teenager responded. Her mother and father sat dumbfounded as she relayed an account of touching her "privates." In a flash, the salacious messages were forgotten. Law enforcement was contacted, an investigation begun, and my client, Uncle X, was charged with serious felonies. Since that initial claim, the state calls it a "disclosure," the child has now come forward with a new claim. My clients is now also alleged to have engaged in cunnilingus. This late disclosure the state described as consistent with traumatic "incremental disclosure."

There are no other witnesses, and no physical corroboration to any of the teenager's claims. Even so, the state has some two dozen people on its witness list. My client denies any wrongdoing.

How to defend such a case? Attacking a child is never wise. The most difficult thing a criminal defense lawyers ever does is to cross examine children. The worst moment in my professional career was cross examining a nine year old about what her father's most intimate part looked like. The jury acquitted of that count, but I felt so bad for the child I wanted to adopt her and protect her from more nightmares.

In child sex cases, lawmakers have virtually abandoned any concern with statutes of limitations. The theory goes that the trauma of child sexual abuse is so severe that the events are often not disclosed until later in life. To punish and deter these crimes, we create special rules for these special cases. You can be accused of a crime that allegedly took place decades ago. It seems wrong to me to me create special rules that depend almost entirely on the reliability of childhood memory.

Lawmakers rush to pass new laws protecting victims of sexual assault. But do these same lawmakers ever really pause to consider the harm done to those wrongfully accused?

The alleged victim in my case this week will testify about events that she claims occured ten years ago, when she was seven. Just how capable is a seven year old of recalling fact from fancy? And how much of what we call memory even in adults is really a creation of fancy?

I am reminded of the sensation Freud caused a century ago when he published essays of infantile sexuality. Neuroses, he claimed, were almost all a product of inappropriate sexual contact. It seemed child abuse was rampant in the Nineteenth Century. But as his thinking evolved, Freed realized that many of the reports of sexual contact were mere fantasy. Paradoxically, some were mere wishes that were sublimated and transformed into waking thoughts that looked like memories. Psychoanalysts are well aware of the power of unconscious that the force of hidden drives. How many wicked uncles are really just loving men whom a child wishes were his real parents? How often are memories of touches really fantasies too dangerous to own?

We will never know, unfortunately. Indeed, we cannot know in cases brought long after the fact.

Instead of challenging these memories, an entire industry has been created. So-called experts if "forensic child abuse interviewing" take the field to describe how best to create safe environemnts in which children can "disclose" ancient trauma. In no other type of criminal case is the requirement for corroborating physical evidence so easily forgotten. A child abused is a gem to be burnished by patient listening. Enourage the child to disclose what happened, the theory goes. But what if this merely results in a better articulated and supported fantasy? Are we so tone deaf that we read Oedipus Rex as docudrama?

In these week's case, the state has experts on delayed disclosure, incremental disclosure and how sexual predators groom young children (note to all: treat all children as miserable little savages capable of anything or face the consequences; the love, hug and lap you offer today is tomorrow's alleged snare). Photographs will be offered to show that the home in which the alleged fondling took place actually exists, as though this were in doubt. Days will be spent explaining how all this could really be true.

But we will never really know if any of it is true, or whether the expert's opinions bear real weight. The reason for this is we have no evidence that all these theories can be verified. When a child complains a decade after the event there is no way to confirm what is said. And so the nightmare of this week's case. My client faces decades behind bars if the jury believes his accuser.

Why would a child lie about something like this? That's the state's best evidence. Freud know first-hand: Children often wish for things they cannot have. Sometimes it is to be rescued from a home in which the parents are at war. Sometimes they wish an uncle or aunt would save them. But they cannot admit this wish; it is too terrible. So the uncle becomes a demon, and, in time is cloaked in accusations that can destroy.

The state's experts will deny this, of course. Because admitting it will then lead to the question they cannot answer: How can a jury tell the difference between an accusation based on fact and one based on fancy?

Dunn v. The State: A Picayune Ruling

Derrick Todd Dunn can't catch a break, and the good people of Georgia will make sure he never does.

Dunn was convicted of statutory rape in 1996. In other words, he had sexual contact with a person deemed unable to give consent. This can mean any number of things. Did he make love to the girl next door? Or was the act sinister? The reported decision, Dunn v. The State, Georgia, Supreme Court, S09A1369, doesn't say. It simply reports that he is a sex offender, and, in Georgia, that means he might be guilty of no more than a criminal offense with a minor.

Don't be offended when I say "no more than a criminal offense with a minor." I am not in favor of child molestation. But it does pay to recall a little history. Laws currently on the books reflecting the age at which a person can give consent to sexual contact are comparatively recent. It was not until the late 1880s that the Women Christian Temperance Union began to agitate for laws raising the age of consent from 10, which was current in many states, to 18. By 1920, the age of consent was 16 to 18 years old in nearly every state.

We simply do not know why Derrick Todd Dunn is required to register. I am willing to bet that it was due to consensual contact with a woman near the age of consent, however. I say this because he is out of prison now. A truly shocking crime would have carried a far greater penalty.

Mr. Dunn must register as a sex offender wherever he lives in Georgia. If he moves, he must register anew with local law enforcement within 72 hours.

On January 17, 2009, Mr. Dunn lived a certain address and was registered. That very day, he left that residence and went to a hotel, the Calhoun Lodge, where he stayed for fice or six days. He moved to a new permanent address on January 23, 2009. He duly appeared at law enforcement's door on January 26, 2009 to report the new address.

He was met with handcuffs, apparently. You see, he failed to report his temporary address at the Calhoun Lodge. Georgia prosecutors filed a motion to revoke his probation and return him to prison. Mr. Dunn's counsel responded that the law did not require notification of temporary addresses.

The Georgia Supreme Court ruled that the law requires registration of temporary addresses as well. There is no due process violation because the law is not vague; the law's terms are clear enough for any person to understand them. Never mind that the law is unreasonable; it is clear. That is enough.

The case saddens. Reading between the lines, Mr. Dunn is still struggling 13 years after his conviction to find solid ground. He is itinerant and struggling. Rather than lend a helping hand, Georgia prosecutors have adopted a zero tolerance policy for what appears to be even technical violations of the sex offender registration laws. Is Mr. Dunn really that bad, or is Georgia simply unreasonable?

Salahi, Salahi, Oh, Such A Wannabe

Salahi, Salahi, oh, such a wannabe;
Seeking reality here on our own TV.
Like sheep we all gather,
To watch all the blather,
About glitz and fake fame,
Have we lost all true shame?

We've come along way in the past one hundred years. We've gone from confidence to paranoia, and now as we face the enemy within we refuse to accept a truth too terrifying to acknowledge: We will never be safe. We never really were.

Michaele and Tareq Salahi of Virgina waltzed into an invitation-only White House dinner the other night. They were as glitzy and ditzy as everyone else there, so no one raised questions about their presence. They mugged with Vice President Joseph Biden, and President Barack Obama greeted them as though they were long lost friends. And then the Secret Service put it all together: Two members of the great unwashed had stumbled into this status fest. The couple were escorted out of the dinner; no desert for them.

I chuckled when I first learned of the stunt. Good for them, I thought. Beavis and his gal, Breasthead, pimp-walked into 1600 Pennsylvania Avenue. Damn, I thought. This tastes good. Like a cold beer at half-time. The people tail-gating in the corridors of power.

But the more I read about this escapade, the more my heart sinks. The Salahi affair reveals alot about us, and none of it is reassuring.

At the turn of the twentieth century, the White House was still open to the public. Abraham Lincoln would complain about folks turning up seeking jobs. Twenty thousand people turned up at the White House to party with Andrew Jackson when he was sworn in. The doors were open on inauguration day almost until the twentieth century. Today the place is a social Fort Knox; even the street outside the building is closed to traffic?

What happened?

I doubt we are more violent than Americans of years past. The world seems as prone as ever to war and random acts of violence. Lincoln, after all, had open doors at the White House, and was shot dead at the Ford Theater. Few thought to lock the nation down in the wake of that shooting, or to repeal the right to carry firearms. Today, I suspect security sepcialists respond to every hiccup by booting up their computers to share data on every single on of us identified as a threat at one point or another.

We recognized years ago in ways we struggle to accept now that life is, as Theodore Roosevelt once said, strife. Political passions seethed. Speech was robust. Conflict was recognized as an essential part of life. We didn't deny the drives that define us.

Things seem a little too stylized these days. We work so hard to be nice, to find just the right balance of competing passions and interests, that our idols are now mannequins, folks like Michaele Salehi.

The law speaks of reasonable people, and lawyers are taught to bargain in the law's shadow, but life on the street is still raw. Open your office's doors to the ordinary commerce of human affairs and you will at once be struck dumb by the furies. There is still passion in the streets; only at the top of life's pyramid has all grown insipid and stylized. Our modern courtiers live lives of suppressed desperation, and, somehow, we are transfixed by them. We aspire to reality TV.

Are the Salahi's folk heroes? Oh, say not so. They are wannabes, struggling to be beautiful. Their business is in distress, a Virginia winery trapped in a Dickensian horror worthy of Bleak House. So they seek distinction in something other than real success; they want to become stars in reality television. And here is the rub: We sit transfixed watching commentators discuss whetner aspiring reality television stars should have been permitted into the White House and given access to the once-vaunted leader of the free world and his palls. Jerzey Kozinski's Being There no longer looks like satire. Why, we might even prosecute the Salehis for some crime or other.

The Secret Service is mortified. Never again, it promises. Never again will access to the men and women with the most power be permitted without prior approval. We the people are simply too dangerous to be allowed unvetted access to our leaders. Even our proxies, the great pretenders who inspire us with unscripted bits of "reality" as we partake of the national Soma of network television, are too dangerous. There's danger everywhere, you see. We are all suspects. All of us harbor a terror within.

And so we tumble into a new century craving security and willing to pay almost any price to have it. We are willing to trade liberty for safety, but tell me: Who shall deliver us from the enemy within?

Ancient societies worshipped gods and goddesses who lived lives as untidy as the people who prayed to them. We say we are more sophisticated now. But the same unruly desires run amok, and we need to control them. Gone are the shrines. A culture without belief in anything but power and status now projects its fears onto new gods and goddesses. Begone, Zeus and Athena; welcome Michaele and the new political class. Are we free today? I doubt it. Everywhere there is terror and the threat of terror. But who shall protect us from ourselves?

The reaction of the gate-crashing at the White House by two aspiring reality television personalities reminds us that in the hurly burly of our days we are all potential terrorists to those in power. Who shall protect them from such scum as we?

Sexual Extortion in New Haven

Today's New Haven Register reports the case of a young woman sent to prison for extortion. It turns out the she and several others were shaking down a lawyer for cash. Several years ago, the lawyer asked someone to find him some companionship. Two young women appeared at the lawyer's office, and he was given what prosecutors described as a "full body massage," paying the women $40 a piece.

That was the down payment.

One of the women had a cell phone with a camera and was quick with the click. A naughty picture was sent to the lawyer soon thereafter, and he paid $5,000 to keep things quiet. This followed additional requests for cash. And then threats, visits to his office, even a menacing visit to his home. The lawyer paid more than $200,000 before turning to police.

The paper refused to name the lawyer. Although comments to the on-line version of the paper this morning named one suspect, and gave enough information to make it sound credible. Those comments have since been removed from the paper's Internet edition. No point in attracting a libel suit, I suppose. Or was it really libelous at all?

The Rules of Professional Conduct were recently amended to prohibit what it should have taken no rule to make off limits: sex with clients. Sex and power are related. Taking advantage of one to get the other really is a boundary violation.

Reading the Register's story, it appears that the mark of this extortion plot relied upon a former client to set up assignations with a few working girls. That may be just this side of the line insofar as sexual misconduct with a client goes, but it is still tawdry and shameful.

I cannot understand those who turn to their clients for sexual release. The relationship between lawyer and client is not mutual. Clients place their trust in us. We are sought in hope; taking advantage of all that hope entails is wrong.

The Register's decision to keep the lawyer's name out of print is troubling to me. Newspapers typically elect to keep the names of sexual assault victims out of the paper. This man is no victim of a sex crime. He was the victim of extortion, and, should be treated no differently that the victim of any economic crime.

I wonder why the Register walked away from the truth in this case.

Read it and weep: http://www.nhregister.com/articles/2009/11/27/news/new_haven/a1-extort.txt