"All Rise!" Not For Me

If I were to tell you that I’ve engaged in soul-searching for the past few months, would you scoff? What! A trial lawyer with a soul? And me, of all people, a scrivener with a poison pen? What provoked this?

The prospect of a judgeship was dangled before my eyes. I was in New York when the question was popped: "Have you ever thought of becoming a federal judge?" The questioner’s eyes bored in, searching. My interlocutor was a person of some influence.

"Er, um, no," I said. The circumstances were such that it took me a moment to say what was really on my mind. "Are you are out of your mind? How much do you think you know about me?"

The questioner was well prepared, and recited from memory details about my education, the trajectory of my legal career, my bookstore. "The Obama administration is looking for civil rights and criminal defense lawyers for the bench," I was told. "You are very well regarded."

I called my wife immediately afterward. "You won’t believe what I just heard," I told her. And she didn’t. She was at first put off by the idea, even troubled. Her father, you see, did federal time for refusing to take a loyalty oath in the 1950s. She still recalls visiting him at the Danbury penitentiary. My father was luckier, although an illegal immigrant and sometime armed robber; he never did time. Things got sticky once when he shot a man, so he fled town with the woman he was dating and put down roots elsewhere. The couple soon became my parents.

After the shock wore off, I started to make phone calls. My first was to a wise politico in Washington, D.C., who had himself once managed judicial candidates for a U.S. Senator. "You’d be great," he said, digesting this improbable prospect. But as he described the process of appointment it looked like more than a long shot. Of all the qualified folks out there, a Senator suggests someone who helps satisfy a political debt.

"I’m a lone wolf," I said dejectedly. "I owe nothing to anyone."

"And that’s your best defense," the politico said.

I called friends and colleagues whom I know to have some regard for me, trying to see just how crazy the idea sounded. Kind words flattered my vanity, so I called people whose reaction was uncertain to me. More kind words, and a few barbs. "Well we want a diverse federal bench. You would certainly provide that," one person said. Was that an icicle I heard falling in the summer heat? A few folks looked at me with thinly veiled hostility, struggling hard to find something safe to say.

After a month or so of reality testing, I screwed up my courage and laid out my prospects to a man with clout here in Connecticut. He was gracious; even enthusiastic. Calls were made to the state’s two Senators. One office called immediately and wanted more information. But the other office was silent.

I continued making the rounds, letting folks know about my interest. "Don’t tell too many people," I was counseled. "Don’t let your enemies mobilize." And I began to wonder what life would really be like if I were left alone with the law and was not tethered to the needs and demands of clients in crisis. My wife and I are already near recluses; the prospect of social isolation did not daunt me. My only doubt was the loss of independence. I am now free to do and speak as I please. Would the robe muzzle?

The idea grew on me. Being something other than an outsider appealed. Could I be happy as something other than a resident alien among people of goodwill? I thought I might be.

It all came crashing down on me the other day. I am told that I will not enjoy the support of the Senator who matters in these things. And my congresswoman won’t extend a hand either. I am dead in the water, it seems, despite the good wishes from folks in New York.

I am not surprised, even if rejection hurts. I’ve thrown so many stones in my life it was hard to believe that some would not boomerang and come hurtling back at me. So in the trenches I remain, free to speak my mind and do as I please. Things could be worse.

Reprinted courtesy of the Connecticut Law Tribune.

Gates v. Crowley: Two Losers In Heat

I've taken a good part of the Summer off this year. No blogging. Little news reading. But I'm back in the saddle now, and saddled with the sad, sad spectacle of Gates v. Crowley. How this garden variety dispute became transformed into national news is beyond me.

First, some fundamentals: Professor Gates is a PBMWA, as in professional black male with an attitude. In a public statement released by his lawyer, Charles Ogletree, Gates set the tone for what went wrong in Cambridge last week. Gates had just returned from spending a week in China where he had been filming a new PBS documentary entitled "Faces of America." Translated: "I am so important and impressed with myself that you should be too."

When Gates got home after his global tour the door to his home was jammed. He and his driver worked to force the door open. They were spotted by a passerby who apparently did not know them. She called 911 about a potential break in. A lone officer arrived. The caller was present at the scene and reported that two black men were apparently forcing the door of a private residence.

The officer, whose stilted police report reads like a bad example of someone struggling with English as a second, or perhaps third, language, reflects the demeanor and attitude of a cop who thinks "trust and obey" is written into one of the Constitution's amendments. Officer James Crowley comes off as arrogant. The postscript to his report could easily read: "If he had only followed my orders I would not have had to arrest him."

Pride versus arrogance was on display at the Gates home. This is the sort of quotidian conflict that takes daily in almost every community. And it has nothing to do with race. A little insight on behalf of both parties could have avoided the commotion.

It was broad daylight at the time, so eliminate the uncertainty that comes of the dead of night. Officer James Crowley was still outnumbered. He walked to the home's front door. There is no question that he was well within the scope of his duties to approach cautiously.

Gates saw the officer approach. According to Gates' statement, he refused to step outside when asked to do so by the officer. Gates told the officer he lived there and that, by the way, he taught up the street at Harvard. Lah-dee dah.

Gates turned from the door to go to his kitchen to retrieve his wallet. Crowley followed without objection. Gates provided identification to prove that he resided at the home. Gates then asked the officer for identification, and, according to Ogletree, the officer never told Gates who he was or whether there were charges against Gates. Gates was steaming now. The nerve of this man; investigating a potential crime at my castle.

According to Gates' statement, he followed the officer to the door where he was astonished to see other officers. While at the door, he was placed under arrest. Apparently, the charge was disorderly conduct. Under Massachusetts law, disorderly conduct involves "fighting or threatening, violent or tumultuous behavior, or creating a hazardous or physically offensive condition for no legitimate purpose other than to cause public annoyance or alarm." It is hard to see how Gates' conduct, petulant though it was, rises to that level.

Crowley's police report paints a different picture. Gates accused him of being a racist, did not comply with the officer's request for identification and escalated his rhetoric to the point where onlookers were alarmed. On this version of events, Gates could have been arrested.

Was Gates guilty? We'll never know. Cambridge prosecutors gave him the Harvard kid-gloves treatment and bowed to Gates' wealth and status: Charges against Gates were dropped without so much as a court appearance.

If Gates believes his rights were violated, he ought to bring an action for unreasonable entry and false arrest under Fourth Amendment. But Ogletree is too good a lawyer to believe such a suit would be easy pickings. There is little doubt that Crowley was present at the home in response to a complaint. He had a right and duty to investigate the complaint. Indeed, Gates' decision to ignore the officer's order to leave the home could easily have exposed him to arrest.

Was there justification for the arrest? According to Crowley's report, Gates stood on his porch yelling at onlookers and berating the officers before his arrest. While it is generally true that you cannot breach the peace of a police officer, it is also the case that behaving poorly in public can earn you a set of handcuffs. If Crowley's report is true, Gates' purpose may well haven been to try to create public alarm. The arrest may well have been justified. It is the sort of claim that has qualified immunity written all over it.

My hunch is that Gates will not file suit under 42 U.S.C. Section 1983. He won't because good legal advice will counsel that this case almost certainly would never see a jury: it has summary judgment written all over it. Like it or not, when police officers are called to investigate a potential burglary those present in the home have some minimal duty to comply with police orders. That might not feel good to a globe-trotting Harvard professor grown fat and sassy playing the race card, but it is the law.

Gates was wrong. Crowley wasn't much better. And President Obama ought to refrain from inviting the two men to the White House for drinks. Thousands of Americans face these sort of tense confrontations without a fuss. Why reward what we should consider shameful?

Probation Officers Rule, Or So They Think

Hugh Keefe has a gift for superlatives. As one of the deans of Connecticut’s defense bar, he has earned the right to make pronouncements as he tap dances through his twilight years. He may not yet have made the cover of Super Lawyers magazine, but he grabs as many front pages of the daily press as any lawyer in the state.

So when he announced in the New Haven Register that the case of State v. Dulin was "the signature case dealing with who has the power: judges or probation" my eyes rolled. I wondered what princely fee this client had paid for the privilege of an almost inevitable guilty plea.

The Dulin case is sadly typical. Mr. Dulin plead guilty to second degree sexual assault. The middle age man had apparently been playing Romeo to a teenage Juliet. Consent, as we know, is no defense to fiddling on too young a set of strings.

Mr. Dulin was sentenced to 18 months in prison. He did his time. And then he was released to begin a period of probation. At a hearing just before he was released, a Superior Court judge ordered that Mr. Dulin register as a sex offender for a period of 10 years, have no contact with his former paramour or her family, and attend outpatient sex offender treatment. The judge ruled that these were the only specific conditions he ordered.

I’ve not seen the transcript of the sentencing hearing, so I am relying on press accounts of the case. I suspect, however, that the judge did not rule that these were the only conditions Mr. Dulin faced. The standard conditions require a probationer to avoid breaking the law, to keep probation informed of his residence and a host of other ho hum things.

It is unclear whether the judge also ordered what I refer to as the "Trojan horse" condition: compliance with "such other conditions as adult probation deems necessary."
Keefe is too good a lawyer to let that slip from a judge’s lips unchallenged. The words are the kiss of death for probationer. If the court orders that probation can do what it thinks necessary, it is difficult to then challenge the discretion of probation officers. Since most pleas contain this ridiculous language, most probation officers have grown accustomed to treating probationers as plantation slaves.

In Mr. Dulin’s case, a probation officer ordered that he take a polygraph examination and required that he move out of the home he shared with his wife and children. These are not specific conditions ordered by the judge. But they are conditions that are routinely imposed on folks designated as sex offenders by the Office of Adult Probation. Keefe apparently advised his client not to comply with these requirements.

Every defense lawyer in the state knows that the Office of Adult Probation is out of control when it comes to sex offenders. And too many judges roll over and play dead when asked to reign in a probation officer. Who wants to face reappointment years down the line and be asked questions about the lusty recidivist who was released only to offend again?

I do not know whether Mr. Dulin violated the conditions of his probation. But I do know that the state’s treatment of sex offenders is a farce. I’ve had clients who were faced with the choice of admitting things they did not do or face jail; men whose only crime was lust have been told to desert their families. Blurring the line between fantasy and reality in areas such as Internet solicitation and child pornography has placed probationers in a netherworld of so-called "treatment" where a new class of Puritans demands compliance with standardless norms. Probation is out of control.

Mr. Dulin is right to litigate this issue. But it will take more than occasional litigation to resolve this problem. What’s needed is systemic review. But who has the courage to peer into the nares of the state’s libidinal blue noses and then declare the obvious? There’s an awful lot of garbage clogging the airways of justice.

Sadly, these issues may never be reached in this case. Mr. Dulin’s best defense is advice of counsel. That works here. But how can Keefe wage it is an advocate? Isn’t he a witness?

Reprinted courtesy of the Connecticut Law Tribune.

The Gods Must Be Crazy

I’ve been on Cape Cod for the past few weeks, spending time with my wife, kids and dogs. Life is good. Yet death keeps intervening, both in the form of its stark finality and as a lurking presence. Somehow the gods have got it all wrong. The wrong people have been torn from our grasp; one remains who should have been taken.

We delayed leaving for the Cape by a day or so to attend a memorial service for Eve Perkins. She died of cancer in her early fifties. We did not know her well. She was our neighbor’s daughter, the granddaughter of the couple who built our house some seventy years ago. My wife and I are reclusive sorts, rarely emerging from our weary shells to spend times of joy with neighbors and friends. We worry constantly that the neighbors are offended by our largely silent ways.

We did not want to risk offense by missing Eve’s service. And we wanted in some formal way to be reminded of her wonderful and joyous eyes. She was mirth. A woman always armed with kindness and love. As I watched speaker after sp eaker pay tribute to her, I felt diminished. Knowing Eve was a gift I did not have the sense to enjoy when she lived.

We made it finally to the Cape where death called again. This time it was the partner of my office manager. Bill was all of 50. I met him but once. Donna introduced me to him and I was all thumbs. What to say to a man whose loved one is much loved, needed and depended upon in my own life?

Just weeks ago, Bill was diagnosed with cancer. It spread quickly, attacking one organ system after another. Less than two months after the diagnosis, he died. And now the silence in Donna’s life comes tumbling forth. I want to say something to her, but words fail.

These deaths are cruel. Life’s passion so quickly transformed into cold and eternal absence. We take a day trip from the Cape to attend Bill’s wake, hoping to express love for a woman whom the gods have forsaken.

The morning after Bill died, my office calls. More bad news.

A client, Nancy Tyler, has been abducted by her ex-husband. She is being held hostage in the couple’s former home. He is threatening to kill her. I know he is serious.

I represented Nancy in her divorce, together with John Harvey. I was brought into the case only after the issues multiplied. Her ex-husband had been charged with burning down a vacation home they owned. He was trying to derail the divorce proceedings by any means possible.

All the bluff, bluster and bullying the man could muster did not stop the divorce trial. The judgment was upheld on appeal. When the ex-husband’s bluff-mastering lawyer finally moved to withdraw, I told Nancy it was probably a sign that even her ex-husband recognized the end had come.

I was wrong. Her ex kidnapped her, took her home and threatened to kill her if a series of increasingly bizarre demands weren’t met. He even wanted the divorce court judge to come to the crime scene and remarry the couple. The ex called my office, demanding to talk to me. I sat silently all day, awaiting news of Nancy’s fate.

Nancy escaped and ran to safety. Her ex set the house afire and begged officers to kill him. He wanted to die, or so he said. But even in this, the man failed.

As the house went up in flames, law enforcement officers assumed he was dead. But this would-be Rambo found his way to safety. He is alive and well and in custody. He’ll blame the world to defend the gaping hole created by his narcissism.

The gods got it wrong this time. Give us back Eve and Bill. Why leave us with this malevolent chaff while taking the very wheat that nourishes us? Clarence Darrow was right: “There is no justice, in or out of court.”

Reprinted courtesy of the Connecticut Law Tribune.