If you have ever tried to get the personal address of an FBI agent in an ongoing criminal case, you know what futility means. This sort of information is kept confidential. It is personal, off limits, and even asking for the addresses will yield a storm of consternation. I used to accept that as part of the process.
But then I learned that federal agents are now working through a list of clients represented by a Connecticut lawyer. Most of those interviewed are former clients. But, ominously, some of those interviewed are current clients. This intelligence shocks me, and suggests a bold new aggressiveness on the part of federal agents.
The interviews are taking place as part of a federal investigation of whether a Waterbury defense lawyer, Martin Minnella, has developed too close a relationship with a prosecutor, State's Attorney John Connelly of Waterbury. (Disclosure time: I represent Minnella.) The focus of the investigation seems to be whether Connelly received gifts and/or other things of value in exchange for favorable consideration of Minnella's cases.
So agents have been active in the state's prisons and residential neighborhoods. They are asking clients why they chose Minnella, how much they paid him, how they paid him, and whether he offered them assurances of an outcome. Some of these questions are clearly privileged, so I would like to think that the agents are reminding people that the attorney-client privilege is theirs to waive. But I suspect agents aren't so fastidious. Odds are, they are bulldozing their way into people's lives, trying sugar first, and resorting to spice when sweetness fails.
This is the first time I have become aware of federal agents systematically working their way down a list of a lawyer's clients, and I find the practice shocking. I sat next to the incoming president of the Connecticut Criminal Defense Lawyers Association the other day, Jennifer Zito. I urged her to action. I called the president of a sister organization and urged him on, too. Folks don't seem to be as shocked by this as I am.
Perhaps I am naive. But it seems to me that granting agents easy access to clients and former clients is over the line. I can understand an interview if a client reaches out to the feds, but permitting the feds to fish in our own backyards without so much as a protest is giving up too much without a fight.
Do you know whether the feds have been to your client's cell or home lately? Do you care? Is the defense bar asleep at their desks? Or are we all so busy being buddies with the government these days that these things don't matter?
Question: Do you know the home addresses of the agents working your client's case? How do you suppose those agents would react if your investigator turned up at their home some night to ask questions about their conversations with the prosecutor?
Monday, August 30, 2010
Anatomy of a Murder: Teaching by Exaggeration
A friend recommended several films as classics about trial, so my wife and watched one of them over the weekend, Otto Preminger's, Anatomy of a Murder. The film won seven Academy Awards in 1959, and is based on the book by Robert Traver. (You can get a used copy of the book on Amazon.)
I find it almost impossible to watch a movie involving trial scenes. The real work of trial is slow, methodical and precise. There are evidentiary foundations to be laid, voir dires to conduct, rules of evidence constantly at play in a multi-dimensional game of something like chess. Watching another lawyer try a case, if you do not understand his strategy, is like watching ice melt. Watching a producer's idea of trial on film is like watching a field hand conduct surgery.
But I am old enough, finally, to have tried all the techniques in my bag of tricks many times. I am eager to learn how to become a better tryer. Why had this film been recommended to me? I watched eagerly.
The defendant is represented by James Stewart, a man who could play a sympathetic serial killer. He exudes a homespun sort of decency that makes you predisposed to like him. One of the defense lawyers was played by a very young and oh-so-slick George C. Scott, a man so polished it hurt to watch him. The issue: whether an army lieutenant killed a man in a fit of temporary insanity after the rape of the lieutenant's wife.
I hesitate to recommend this movie to youngish lawyers -- those who have tried fewer that 20 or 25 cases to a verdict. Doing what these lawyers did in a contemporary courtroom could well land you in the poky on a contempt citation. The lawyers give inflammatory speeches during their objections; they shoot sharp and lengthy barbs at one another again and again; the judge's admonishments are ignored. It's a great courtroom drama but it is, for all that, fiction. I'd hate to see some young stud defend himself against a judge's present day wrath by stammering, "But Jimmie Stewart did it."
But for all its exaggerated form, the movie does teach a great lesson: The art of trying a case is in telling a story. And sometimes the telling of a story requires drawing objections. This is the lesson an old lawyer learns watching the film.
Trial preparation is thinking. In the days and weeks leading up to a trial, a good lawyer is engaged in something like a non-stop internal monologue. Each fact, good and bad, material to the case is weighed and assessed from a variety of angles. How to meet the so-called bad facts? How to present the good facts in the most favorable and persuasive light? And always and forever the constant weight of the code of evidence. What is admissible? Why is it admissible? How will you meet your adversary's objections? What traps lay waiting for the unwary? What snares can you lay to entangle the other side?
I don't think lawyers take the evidence code seriously enough these days. The stress on arbitration and mediation is making dull tools of trial lawyers. When it's all kumbaya and sweet reason in the forum, forgive me if I yawn. Cases are won and lost based on evidentiary rulings: That's why there are so many reported appellate decisions.
In Anatomy of a Murder, whether the lieutenant's wife was in fact raped or was a strumpet on the prowl became a centerpiece of the trial. The state constructed a theory of the case that made it irrelevant, and then gave the theory up by opening evidentiary doors through sloppy questioning. Once the doors were opened, the character of the defendant's wife was on display in a manner that would not quiet suit the tender sensibilities of the rape-shield era.
What makes the film worth watching, however, was the manner in which both sides asked patently improper questions designed and intended to anchor themes in the minds of the jurors. Once such a question was asked, the other side predictably objected, and in the course of the objection reframed the issue at hand in the manner intended by the party asking the question. Here's an example: Question: And when you went out on prowl at night did you wear panties? Objection: The use of the word prowl is improper, and this case isn't about what the witness did or did not usually do. Court: Sustained.
This exchange told the jury plenty: The victim went out at night for questionable and furtive purposes. When she did so, she was dressed, or, as the case may be, not dressed, for questionable purposes. She's no longer a demure victim of a sexual assault; she is now a predator herself. The state drew an objection hoping for a response that would tell it's story. It was a brilliant move in a ham-handed Hollywood sort of way.
I once flirted with becoming a judge. I suppose it is a good thing that flirtation ended without success. Were I trying the case, I would have shut the lawyers down. No speeches. Questions patently improper would have drawn admonishments after a warning or two. The trial would not have become a sideshow. In Anatomy of a Murder, the real issue, whether the defendant was legally insane at the time of the shooting, got lost: Was the woman really raped? Of course, the answer to that question hardly mattered given the question presented. The state tried an incompetent case and was tricked into a dead end alley.
Therein lies the lesson for older lawyers. My fear is that as the hairs on my head gray, I have become increasingly conservative. Rather than thinking outside of the box, I reckon where the walls are before trial and then try to stay within them, to demonstrate my legal acumen. But since when is trial about anything other than the narrative at hand? Is time spent in silent struggle with evidence code time that could better have been spent constructing a narrative that persuades, and then finding the means to tell it, including the drawing of objections?
I think I know the answer to that question.
Check out Anatomy of a Murder. Young lawyers should keep an eye out for the technique of anchoring themes and reframing topics through an explosive question, but realize this is Hollywood. Older lawyers should be wary of the dead hand of legal doctrine: don't try your case so well that you leave the gripping story in the hallway. Trial is part passion, part learning: finding just the right mix is what makes the life of a trial lawyer the sort of intellectual combat that keeps you forever young.
I find it almost impossible to watch a movie involving trial scenes. The real work of trial is slow, methodical and precise. There are evidentiary foundations to be laid, voir dires to conduct, rules of evidence constantly at play in a multi-dimensional game of something like chess. Watching another lawyer try a case, if you do not understand his strategy, is like watching ice melt. Watching a producer's idea of trial on film is like watching a field hand conduct surgery.
But I am old enough, finally, to have tried all the techniques in my bag of tricks many times. I am eager to learn how to become a better tryer. Why had this film been recommended to me? I watched eagerly.
The defendant is represented by James Stewart, a man who could play a sympathetic serial killer. He exudes a homespun sort of decency that makes you predisposed to like him. One of the defense lawyers was played by a very young and oh-so-slick George C. Scott, a man so polished it hurt to watch him. The issue: whether an army lieutenant killed a man in a fit of temporary insanity after the rape of the lieutenant's wife.
I hesitate to recommend this movie to youngish lawyers -- those who have tried fewer that 20 or 25 cases to a verdict. Doing what these lawyers did in a contemporary courtroom could well land you in the poky on a contempt citation. The lawyers give inflammatory speeches during their objections; they shoot sharp and lengthy barbs at one another again and again; the judge's admonishments are ignored. It's a great courtroom drama but it is, for all that, fiction. I'd hate to see some young stud defend himself against a judge's present day wrath by stammering, "But Jimmie Stewart did it."
But for all its exaggerated form, the movie does teach a great lesson: The art of trying a case is in telling a story. And sometimes the telling of a story requires drawing objections. This is the lesson an old lawyer learns watching the film.
Trial preparation is thinking. In the days and weeks leading up to a trial, a good lawyer is engaged in something like a non-stop internal monologue. Each fact, good and bad, material to the case is weighed and assessed from a variety of angles. How to meet the so-called bad facts? How to present the good facts in the most favorable and persuasive light? And always and forever the constant weight of the code of evidence. What is admissible? Why is it admissible? How will you meet your adversary's objections? What traps lay waiting for the unwary? What snares can you lay to entangle the other side?
I don't think lawyers take the evidence code seriously enough these days. The stress on arbitration and mediation is making dull tools of trial lawyers. When it's all kumbaya and sweet reason in the forum, forgive me if I yawn. Cases are won and lost based on evidentiary rulings: That's why there are so many reported appellate decisions.
In Anatomy of a Murder, whether the lieutenant's wife was in fact raped or was a strumpet on the prowl became a centerpiece of the trial. The state constructed a theory of the case that made it irrelevant, and then gave the theory up by opening evidentiary doors through sloppy questioning. Once the doors were opened, the character of the defendant's wife was on display in a manner that would not quiet suit the tender sensibilities of the rape-shield era.
What makes the film worth watching, however, was the manner in which both sides asked patently improper questions designed and intended to anchor themes in the minds of the jurors. Once such a question was asked, the other side predictably objected, and in the course of the objection reframed the issue at hand in the manner intended by the party asking the question. Here's an example: Question: And when you went out on prowl at night did you wear panties? Objection: The use of the word prowl is improper, and this case isn't about what the witness did or did not usually do. Court: Sustained.
This exchange told the jury plenty: The victim went out at night for questionable and furtive purposes. When she did so, she was dressed, or, as the case may be, not dressed, for questionable purposes. She's no longer a demure victim of a sexual assault; she is now a predator herself. The state drew an objection hoping for a response that would tell it's story. It was a brilliant move in a ham-handed Hollywood sort of way.
I once flirted with becoming a judge. I suppose it is a good thing that flirtation ended without success. Were I trying the case, I would have shut the lawyers down. No speeches. Questions patently improper would have drawn admonishments after a warning or two. The trial would not have become a sideshow. In Anatomy of a Murder, the real issue, whether the defendant was legally insane at the time of the shooting, got lost: Was the woman really raped? Of course, the answer to that question hardly mattered given the question presented. The state tried an incompetent case and was tricked into a dead end alley.
Therein lies the lesson for older lawyers. My fear is that as the hairs on my head gray, I have become increasingly conservative. Rather than thinking outside of the box, I reckon where the walls are before trial and then try to stay within them, to demonstrate my legal acumen. But since when is trial about anything other than the narrative at hand? Is time spent in silent struggle with evidence code time that could better have been spent constructing a narrative that persuades, and then finding the means to tell it, including the drawing of objections?
I think I know the answer to that question.
Check out Anatomy of a Murder. Young lawyers should keep an eye out for the technique of anchoring themes and reframing topics through an explosive question, but realize this is Hollywood. Older lawyers should be wary of the dead hand of legal doctrine: don't try your case so well that you leave the gripping story in the hallway. Trial is part passion, part learning: finding just the right mix is what makes the life of a trial lawyer the sort of intellectual combat that keeps you forever young.
Saturday, August 28, 2010
The Coming Insurrection: Glenn Beck Deciphered
A geriatric army marched on Washington, D.C. today and tried to appropriate language long since deprived of its historic force: Glenn Beck is no freedom rider. The civil rights of the aggrieved white upper middle class don't carry the blood stain of centuries of slavery. That anyone would think the Tea Party's petite rage can fill the outsize wine skin of Martin Luther King's passionate rhetoric is obscene.
But some good did come of today's political theater. It highlights the extent to which old forms are dead. A restless and disconnected people don't know where to turn. So they turn to yesteryear's theater to adopt a role, a pose. Absent any compelling new narrative to capture their lingering sense of malaise, they turn to an irretrievable past. Can anything better and more poignantly reflect the extent to which American politics has become sound and fury signifying nothing?
There is a legitimation crisis in the United States. Our politics and politicians are morally bankrupt. Consider the lead paragraph in this morning's New York Times regarding New York Governor David Patterson: "A thoroughly honest politician has pretty much always been considered an undiscovered specimen." How easily we assume that to be a politician is to be a liar. And yet we prosecute the liars we elect without irony. Does anyone really believe the rhetoric of the political elite? I suspect few do. We expect them to lie, and so they do. We expect them to lie because we have little or no sense of a shared truth.
I stumbled upon a little book I urge all of you to read. Its author is unknown. It is called The Coming Insurrection. The book was published in the United States in 2009 by Semiotext(e), 2007 Wilshire Blvd., Suite 427, Los Angeles, CA 90057. The author is called, simply enough, The Invisible Committee. (The publisher's web site is www.semiotexte.com.)
First published in France in 2007 as L'insurrection qui vient, the work is steeped in Sartrean and post-Marxian dialectic that makes for sometimes hard reading, especially in translation. Yet its assessment of a world in which politics and power are divorced from the
ordinary lives of people is compelling. "The business of voting and deciding a winner is enough to turn the assembly into a ... a theater where all the various little pretenders to power confront each other." Amen. Glenn Beck, Sarah Palin, Richard Blumenthal, Antonin Scalia, Barack Obama -- all tossing words into a void, hoping that something will stick. "From left to right, it's the same nothingness striking the pose of an emperor or a savior, the same sales assistants adjusting their discourse according to the findings of the latest surveys."
Politics, The Coming Insurrection argues, is passe. History doesn't end, institutions end. Their death sigh is observed in the widening gap between the rhetoric and reality of political life. Do we speak of freedom? "Freedom is no longer a name scrawled on walls, for today it is always followed, as if by its shadow, with the word 'security.'" What remains when rhetoric fails is the lived experience of those without rhetoric, possessing only the means, however limited, to act not in the name of mere survival, but in the joyous, almost Nietzschean spirit of overcoming. (I told you, the book is not easy.)
The dominant spirit of the age is the easy condescension of the raconteur: "[I]t's the eye-rolling or the wounded indignation at anyone who's stupid, primitive, or presumptuous enough to still believe in something, to affirm anything at all. You can see the dogmatism of constant questioning give its complicit wink of the eye everywhere in the universities and among the literary intelligentsia. No critique is too radical among postmodernist thinkers, so long as it maintains this total absence of certitude."
This is dangerous reading. The future, and there will be one, even its shape is not foreseeable, belongs to those who can find life and creative energy in new, as yet scarcely recognized forms. Think how troubling the world looked to the Roman elite in the late fifth century: there was new life in the manor and in the monastery, a life that had yet to emerge and be known.
What new form lingers in the shadow of our decay? Is this form the commune? "The commune is perhaps what gets decided at the very moment we would normally part ways. It's the joy of an encounter that survives its expected ends." Put another way, the commune is connection after the ends of utility have been served. I am reminded of Cicero's definition of a commonwealth: a collection of people bound together not just by common interests but also by a shared sense of right. New communes arise daily all around us. I observed one the other night in an after-dinner gathering of friends in a small-town restaurant: the people there rejoiced in one another's presence. Who rejoices any longer in a public forum?
The American Century has ended abroad, and the rhetoric of American politics no longer matches the lives of most Americans. Glenn Beck's play-acting appeals out of an act hunger that must be served. He is a caricature energized by forces seduced into playing at politics when politics no longer matters. But as the Sun sets tonight on Washington the loud clanging of Beck's mordant cymbals already grows faint.
The Coming Insurrection is a dangerous book. It is a centerpiece of the French prosecution of nine individuals accused of terrorism. Indeed, the French government has called it a manual for terrorism. It is no such thing. The Coming Insurrection is a simple book about dangerous times. Read it, I tell you. Read it and ask yourself whether a little revolution now and again isn't a good thing.
Glenn Beck is a sign of a revolution, but he is no revolutionary. He is yesteryear in effigy. Anyone got a match?
But some good did come of today's political theater. It highlights the extent to which old forms are dead. A restless and disconnected people don't know where to turn. So they turn to yesteryear's theater to adopt a role, a pose. Absent any compelling new narrative to capture their lingering sense of malaise, they turn to an irretrievable past. Can anything better and more poignantly reflect the extent to which American politics has become sound and fury signifying nothing?
There is a legitimation crisis in the United States. Our politics and politicians are morally bankrupt. Consider the lead paragraph in this morning's New York Times regarding New York Governor David Patterson: "A thoroughly honest politician has pretty much always been considered an undiscovered specimen." How easily we assume that to be a politician is to be a liar. And yet we prosecute the liars we elect without irony. Does anyone really believe the rhetoric of the political elite? I suspect few do. We expect them to lie, and so they do. We expect them to lie because we have little or no sense of a shared truth.
I stumbled upon a little book I urge all of you to read. Its author is unknown. It is called The Coming Insurrection. The book was published in the United States in 2009 by Semiotext(e), 2007 Wilshire Blvd., Suite 427, Los Angeles, CA 90057. The author is called, simply enough, The Invisible Committee. (The publisher's web site is www.semiotexte.com.)
First published in France in 2007 as L'insurrection qui vient, the work is steeped in Sartrean and post-Marxian dialectic that makes for sometimes hard reading, especially in translation. Yet its assessment of a world in which politics and power are divorced from the
ordinary lives of people is compelling. "The business of voting and deciding a winner is enough to turn the assembly into a ... a theater where all the various little pretenders to power confront each other." Amen. Glenn Beck, Sarah Palin, Richard Blumenthal, Antonin Scalia, Barack Obama -- all tossing words into a void, hoping that something will stick. "From left to right, it's the same nothingness striking the pose of an emperor or a savior, the same sales assistants adjusting their discourse according to the findings of the latest surveys."
Politics, The Coming Insurrection argues, is passe. History doesn't end, institutions end. Their death sigh is observed in the widening gap between the rhetoric and reality of political life. Do we speak of freedom? "Freedom is no longer a name scrawled on walls, for today it is always followed, as if by its shadow, with the word 'security.'" What remains when rhetoric fails is the lived experience of those without rhetoric, possessing only the means, however limited, to act not in the name of mere survival, but in the joyous, almost Nietzschean spirit of overcoming. (I told you, the book is not easy.)
The dominant spirit of the age is the easy condescension of the raconteur: "[I]t's the eye-rolling or the wounded indignation at anyone who's stupid, primitive, or presumptuous enough to still believe in something, to affirm anything at all. You can see the dogmatism of constant questioning give its complicit wink of the eye everywhere in the universities and among the literary intelligentsia. No critique is too radical among postmodernist thinkers, so long as it maintains this total absence of certitude."
This is dangerous reading. The future, and there will be one, even its shape is not foreseeable, belongs to those who can find life and creative energy in new, as yet scarcely recognized forms. Think how troubling the world looked to the Roman elite in the late fifth century: there was new life in the manor and in the monastery, a life that had yet to emerge and be known.
What new form lingers in the shadow of our decay? Is this form the commune? "The commune is perhaps what gets decided at the very moment we would normally part ways. It's the joy of an encounter that survives its expected ends." Put another way, the commune is connection after the ends of utility have been served. I am reminded of Cicero's definition of a commonwealth: a collection of people bound together not just by common interests but also by a shared sense of right. New communes arise daily all around us. I observed one the other night in an after-dinner gathering of friends in a small-town restaurant: the people there rejoiced in one another's presence. Who rejoices any longer in a public forum?
The American Century has ended abroad, and the rhetoric of American politics no longer matches the lives of most Americans. Glenn Beck's play-acting appeals out of an act hunger that must be served. He is a caricature energized by forces seduced into playing at politics when politics no longer matters. But as the Sun sets tonight on Washington the loud clanging of Beck's mordant cymbals already grows faint.
The Coming Insurrection is a dangerous book. It is a centerpiece of the French prosecution of nine individuals accused of terrorism. Indeed, the French government has called it a manual for terrorism. It is no such thing. The Coming Insurrection is a simple book about dangerous times. Read it, I tell you. Read it and ask yourself whether a little revolution now and again isn't a good thing.
Glenn Beck is a sign of a revolution, but he is no revolutionary. He is yesteryear in effigy. Anyone got a match?
Some Questions About The Prosecution of Omar Khadr
Was anyone really surprised that 15-year-old Omar Khadr was lied to and threatened with what amounts to sadistic torture by U.S. interrogators? Our courts condone police lying. Police departments tolerate it. Officers do it all the time, and then lie about doing it. Only defendants are held accountable for lying.
What surprises about the Khadr prosecution is that the interrogators admit lying. Therein lies the difference, I suspect, between the civilian and military justice system: In the military, officers who lie under oath can be punished severely. Few would dream of punishing a lying cop.
Khadr was captured by U.S. troops in Afghanistan and is accused of throwing a hand grenade at a U.S. solider, killing Army sergeant Christopher Speer. That was eight years ago. Khadr, now 23, is set to face trial in the first case to be tried before the Guantanamo Tribunal.
While the boy solider was being interrogated years ago by a burly he-man of a intelligence operative, he was told that another young man who had not been forthcoming had been sent to an American prison where he died after a gang rape. Presumably, this implied threat loosened the lips of Khadr. His words, no doubt, will now be used in the effort to condemn him.
My clients often tell me of threats being made to them by civilian police officers. When officers are confronted on the witness stand with these allegations, they routinely deny them, often times feigning great insult that anyone would accuse them of such a thing. The police are no doubt afraid that civilian jurors would disapprove of such thuggery. The reason police have a policy against tape-recording interrogations is so that they can lie about what goes on behind closed doors.
In the Khadr case, the trial judge was not offended at all by thuggery. Threatening a boy with gang rape was not so coercive as to render his confession involuntary, no, not at all.
What astonishes about the Khadr prosecution is that the interrogator admitted behaving like a two-bit punk. I suspect that was because in some fundamental respects the military justice system is superior to its civilian counterpart: Military officers found to have lied to superiors can be court-martialed, dishonorably discharged or even imprisoned. There is an honor code in the military that imposes a requirement to be truthful. Our civilian police departments too often give only lip service to the truth. That's why scholars write about the phenomenon known as the blue wall of silence. Ask Frank Serpico about what happens when you violate that code.
The Obama administration is rightly concerned about international reaction to this the first of the Guantanamo trials. Just why we are prosecuting the boy in a military tribunal is not at all clear to me. If the child cloaked himself in the garb of a soldier, and we are truly at war with terror, then why a trial at all? Don't combatants aim to kill one another? A war against terror is a war against a shadowy non-state entity peopled by non-conventional soldiers. Just what is it that we are trying to prove with this trial?
If the claim is that the boy is a civilian then why try him in a military court? We look like a cowardly giant placing a kid on trial in a kangaroo court while simultaneously thumbing our nose at the International Criminal Court. If this boy attacked us because we have declared war on something he cares to defend, then how does a military tribunal gain jurisdiction over this civilian? Shouldn't this really be a matter of international law? Trying Khadr in a military tribunal looks a lot like Mafia chieftans convening to pass judgment on the lone Irishman in their neighborhood.
Someone enlighten me about why this improvident prosecution is taking place. I just don't get it.
What surprises about the Khadr prosecution is that the interrogators admit lying. Therein lies the difference, I suspect, between the civilian and military justice system: In the military, officers who lie under oath can be punished severely. Few would dream of punishing a lying cop.
Khadr was captured by U.S. troops in Afghanistan and is accused of throwing a hand grenade at a U.S. solider, killing Army sergeant Christopher Speer. That was eight years ago. Khadr, now 23, is set to face trial in the first case to be tried before the Guantanamo Tribunal.
While the boy solider was being interrogated years ago by a burly he-man of a intelligence operative, he was told that another young man who had not been forthcoming had been sent to an American prison where he died after a gang rape. Presumably, this implied threat loosened the lips of Khadr. His words, no doubt, will now be used in the effort to condemn him.
My clients often tell me of threats being made to them by civilian police officers. When officers are confronted on the witness stand with these allegations, they routinely deny them, often times feigning great insult that anyone would accuse them of such a thing. The police are no doubt afraid that civilian jurors would disapprove of such thuggery. The reason police have a policy against tape-recording interrogations is so that they can lie about what goes on behind closed doors.
In the Khadr case, the trial judge was not offended at all by thuggery. Threatening a boy with gang rape was not so coercive as to render his confession involuntary, no, not at all.
What astonishes about the Khadr prosecution is that the interrogator admitted behaving like a two-bit punk. I suspect that was because in some fundamental respects the military justice system is superior to its civilian counterpart: Military officers found to have lied to superiors can be court-martialed, dishonorably discharged or even imprisoned. There is an honor code in the military that imposes a requirement to be truthful. Our civilian police departments too often give only lip service to the truth. That's why scholars write about the phenomenon known as the blue wall of silence. Ask Frank Serpico about what happens when you violate that code.
The Obama administration is rightly concerned about international reaction to this the first of the Guantanamo trials. Just why we are prosecuting the boy in a military tribunal is not at all clear to me. If the child cloaked himself in the garb of a soldier, and we are truly at war with terror, then why a trial at all? Don't combatants aim to kill one another? A war against terror is a war against a shadowy non-state entity peopled by non-conventional soldiers. Just what is it that we are trying to prove with this trial?
If the claim is that the boy is a civilian then why try him in a military court? We look like a cowardly giant placing a kid on trial in a kangaroo court while simultaneously thumbing our nose at the International Criminal Court. If this boy attacked us because we have declared war on something he cares to defend, then how does a military tribunal gain jurisdiction over this civilian? Shouldn't this really be a matter of international law? Trying Khadr in a military tribunal looks a lot like Mafia chieftans convening to pass judgment on the lone Irishman in their neighborhood.
Someone enlighten me about why this improvident prosecution is taking place. I just don't get it.
Friday, August 27, 2010
"Injustice Is Where Hopelessness Prevails"
On Monday, I'll start jury selection in a murder case I tried for the first time last September. The jury could not agree unanimously on whether my client was justified in shooting two women who rushed at him in his kitchen. So we'll do it all over again. As is so often the case in Connecticut, I expect jury selection to last longer than the evidence. It will take two weeks to pick the jury; evidence should take six or seven days.
Preparing for this trial has been an exercise in humility. It is painful to read the transcript of your own work. I've winced, thrown transcripts aside in disgust, and tossed and turned at night trying to reconceive the trial from start to finish. A good friend has helped me by reading the transcript; his critique has from time to time stung. But I have done my best to listen. Listening is hard work for me.
What I have yet to do is prepare my client for the retrial. I am not sure how to do that. How does a man watch the worst moment in his life replayed frame by frame before strangers? How do you sit silently and still when you are attacked, scorned and ridiculed by a prosecutor? How to accept the fact that 12 strangers will now make a judgment about a split second or two they have never, and may never, experience for themselves? The answer is simple yet so very difficult: You walk them throw the valley of the shadow of death; that valley exists in each of us, just beyond the threshold of what we see.
Self-defense is a hard defense to the charge of murder. You ask the jury to conclude the killing was justified. And you do that as the family of the dead sit staring daggers into you. It is a difficult journey, taking strangers to the secret place we all harbor where killing is done not out of joy but of sad necessity.
Trial is tense, and I meet tension too often with dark humor. There is nothing funny about the death of another. But the heavy silence of a courtroom in such cases is the moment before a heart stops beating. I've turned at such moments to clients to say something to distract them from the pain. Too often we've smiled together at some inane aside.
Prosecutors have called a client or two of mine on this during their closing arguments. "The defendant smiled here as the evidence was presented. He has shown and shows now no remorse," they will intone. I've heard those comments and fumed. Does the state now claim the right to dictate even the demeanor we must show as it tries to slay us?
I'm a born contrarian and a approach the simplest of tasks in a fighting frame of mind. Hell, I'd argue with my shadow if I could get it to talk back. There has to be a better way to do just about anything, and rarely is reality the sum of that which simply appears. My favorite figure in literature remains Milton's Satan in Paradise Lost; Yes, the battle may be pointless, but the effort is all. Defiant unto death seems about the right attitude. Or, to put it another way, once I see the freight train coming, if there is no time to step aside, I'll lunge to greet it, hoping to dislodge it from the tracks. There's no point in running, and simply waiting for the inevitable. Attack, attack, attack has become a way of life for me.
All this and more flooded into my mind in an instant as I read a short piece written by Jeff Gamso this morning. Gamso is the high-priest of criminal defense lawyers writing on the life the mind as it confronts the brutal realities of the law. He attended a seminar not long ago. "Injustice is where hopelessness prevails," the speaker said. I might recast the line just a bit to make it fit my emerging sensibilities: "Despair is where hopelessness prevails." Despair is, in my view, the deadliest of the Seven Deadly sins. A criminal defense lawyer cannot despair; there is fight in ever gesture a lawyer makes in defense of a client.
But how to retain hope amid the horror of autopsy photos, tears and fear? Perhaps Satan's sin was the open rebellion, the defiant posture? Perhaps dark humor is less anesthetic than concession.
Read Elaine Pagel's The Gnostic Gospels, my friend told me this summer. "I read it years ago," I snapped, ever too eager to demonstrate my learning. What a pointless display of pride in that simple response of mine. So I reread it. The kingdom of heaven might just be at hand but never arriving. Looking outward for signs and portents is looking away from the kingdom emerging within. Looking within to find the source of righteousness is hard and painful work; pride distracts. Looking within, embracing sorrows, becoming acquainted with grief, peering with an unwavering glance into horror: these are almost spiritual exercises I must learn and somehow teach my client in the hard confines of a courtroom.
Tell me, truly, what are we taught of the care of souls in law school? The hardest truths we must learn and teach on our own, speaking with lips unclean from having uttered so many scorning and mocking words. Trial now beckons as a circle of Hell. And Hell is no laughing matter ...
Preparing for this trial has been an exercise in humility. It is painful to read the transcript of your own work. I've winced, thrown transcripts aside in disgust, and tossed and turned at night trying to reconceive the trial from start to finish. A good friend has helped me by reading the transcript; his critique has from time to time stung. But I have done my best to listen. Listening is hard work for me.
What I have yet to do is prepare my client for the retrial. I am not sure how to do that. How does a man watch the worst moment in his life replayed frame by frame before strangers? How do you sit silently and still when you are attacked, scorned and ridiculed by a prosecutor? How to accept the fact that 12 strangers will now make a judgment about a split second or two they have never, and may never, experience for themselves? The answer is simple yet so very difficult: You walk them throw the valley of the shadow of death; that valley exists in each of us, just beyond the threshold of what we see.
Self-defense is a hard defense to the charge of murder. You ask the jury to conclude the killing was justified. And you do that as the family of the dead sit staring daggers into you. It is a difficult journey, taking strangers to the secret place we all harbor where killing is done not out of joy but of sad necessity.
Trial is tense, and I meet tension too often with dark humor. There is nothing funny about the death of another. But the heavy silence of a courtroom in such cases is the moment before a heart stops beating. I've turned at such moments to clients to say something to distract them from the pain. Too often we've smiled together at some inane aside.
Prosecutors have called a client or two of mine on this during their closing arguments. "The defendant smiled here as the evidence was presented. He has shown and shows now no remorse," they will intone. I've heard those comments and fumed. Does the state now claim the right to dictate even the demeanor we must show as it tries to slay us?
I'm a born contrarian and a approach the simplest of tasks in a fighting frame of mind. Hell, I'd argue with my shadow if I could get it to talk back. There has to be a better way to do just about anything, and rarely is reality the sum of that which simply appears. My favorite figure in literature remains Milton's Satan in Paradise Lost; Yes, the battle may be pointless, but the effort is all. Defiant unto death seems about the right attitude. Or, to put it another way, once I see the freight train coming, if there is no time to step aside, I'll lunge to greet it, hoping to dislodge it from the tracks. There's no point in running, and simply waiting for the inevitable. Attack, attack, attack has become a way of life for me.
All this and more flooded into my mind in an instant as I read a short piece written by Jeff Gamso this morning. Gamso is the high-priest of criminal defense lawyers writing on the life the mind as it confronts the brutal realities of the law. He attended a seminar not long ago. "Injustice is where hopelessness prevails," the speaker said. I might recast the line just a bit to make it fit my emerging sensibilities: "Despair is where hopelessness prevails." Despair is, in my view, the deadliest of the Seven Deadly sins. A criminal defense lawyer cannot despair; there is fight in ever gesture a lawyer makes in defense of a client.
But how to retain hope amid the horror of autopsy photos, tears and fear? Perhaps Satan's sin was the open rebellion, the defiant posture? Perhaps dark humor is less anesthetic than concession.
Read Elaine Pagel's The Gnostic Gospels, my friend told me this summer. "I read it years ago," I snapped, ever too eager to demonstrate my learning. What a pointless display of pride in that simple response of mine. So I reread it. The kingdom of heaven might just be at hand but never arriving. Looking outward for signs and portents is looking away from the kingdom emerging within. Looking within to find the source of righteousness is hard and painful work; pride distracts. Looking within, embracing sorrows, becoming acquainted with grief, peering with an unwavering glance into horror: these are almost spiritual exercises I must learn and somehow teach my client in the hard confines of a courtroom.
Tell me, truly, what are we taught of the care of souls in law school? The hardest truths we must learn and teach on our own, speaking with lips unclean from having uttered so many scorning and mocking words. Trial now beckons as a circle of Hell. And Hell is no laughing matter ...
Thursday, August 26, 2010
In Memoriam: Tony Perez
When I heard the news some part of me stopped cold. A former client's sister called late yesterday. She had horrible news. Her brother, Tony, was murdered. Would I please return her call? She needed to talk. I heard the message this morning. Getting to court suddenly seemed less important than talking to Tony's sister.
Tony Perez was sentenced to multiple life terms after a trial on federal murder for hire charges. The federal government elected not to seek death. In the government's view, he was a lieutenant in an organization headed by his brother. The two men were convicted of conspiring to have a rival shot to death. The shooting was in retaliation for another gang's kidnapping and torture of a trusted friend.
Tony was a heroin addict of limited education. He knew the stakes at trial were enormous. From the day I met him until the last time I spoke to him, he insisted that he was merely present as the hit was planned and executed. He did not know it was going down. He'd follow his older brother anywhere, even to the gates of Hell. But he was no killer.
The jury rejected the defense of mere presence. There was a suspicious phone call moments before a man was savagely gunned down on a busy Hartford street. There was motive aplenty. The government introduced dangerous looking guns and big bricks of cocaine, together with photographs of my client always at his brother's side. He was more than a mere sidekick, the government argued.
When Tony was sentenced, the judge imposed multiple life terms. Those terms were imposed consecutively, meaning, somehow, that once one life term was satisfied, Tony would be required to serve another. She tacked on several score more years for good measure. She wanted to make sure he never walked our streets again.
"What does this sentence mean?" Tony asked as the judge left the bench. I resorted to gallows humor. "It means that once you die, the government has to revive you to start serving another life term. Otherwise it is an illegal sentence."
Tony looked at me for a moment, unsure whether I was kidding. Then he smiled. He hugged me and then turned to say good bye to his family. It was a bitter moment, the sort of moment you learn to bury and then avoid in the practice of criminal law.
His sister reports that in the past seven or so years, he'd kicked his drug habit. He was healthy, clean and looking forward to transferring to a prison closer to home. The family hoped he would be incarcerated with his older brother not far from Connecticut. "You should have seen him," the sister said. "He looked good."
I'll be at his memorial service on Monday. It is hard to believe he is dead, although I cannot honestly say I wish he had the chance to begin serving the second of his several consecutive life terms. Prison seems pointless. His life was hard, except when he smiled. It is his smile I will remember.
Tony Perez was sentenced to multiple life terms after a trial on federal murder for hire charges. The federal government elected not to seek death. In the government's view, he was a lieutenant in an organization headed by his brother. The two men were convicted of conspiring to have a rival shot to death. The shooting was in retaliation for another gang's kidnapping and torture of a trusted friend.
Tony was a heroin addict of limited education. He knew the stakes at trial were enormous. From the day I met him until the last time I spoke to him, he insisted that he was merely present as the hit was planned and executed. He did not know it was going down. He'd follow his older brother anywhere, even to the gates of Hell. But he was no killer.
The jury rejected the defense of mere presence. There was a suspicious phone call moments before a man was savagely gunned down on a busy Hartford street. There was motive aplenty. The government introduced dangerous looking guns and big bricks of cocaine, together with photographs of my client always at his brother's side. He was more than a mere sidekick, the government argued.
When Tony was sentenced, the judge imposed multiple life terms. Those terms were imposed consecutively, meaning, somehow, that once one life term was satisfied, Tony would be required to serve another. She tacked on several score more years for good measure. She wanted to make sure he never walked our streets again.
"What does this sentence mean?" Tony asked as the judge left the bench. I resorted to gallows humor. "It means that once you die, the government has to revive you to start serving another life term. Otherwise it is an illegal sentence."
Tony looked at me for a moment, unsure whether I was kidding. Then he smiled. He hugged me and then turned to say good bye to his family. It was a bitter moment, the sort of moment you learn to bury and then avoid in the practice of criminal law.
His sister reports that in the past seven or so years, he'd kicked his drug habit. He was healthy, clean and looking forward to transferring to a prison closer to home. The family hoped he would be incarcerated with his older brother not far from Connecticut. "You should have seen him," the sister said. "He looked good."
I'll be at his memorial service on Monday. It is hard to believe he is dead, although I cannot honestly say I wish he had the chance to begin serving the second of his several consecutive life terms. Prison seems pointless. His life was hard, except when he smiled. It is his smile I will remember.
A Shameful Squeeze In Waterbury
The law of supply and demand influences almost everything, including legal services. There is only so much chaos to go around. In a bad economy, few clients can afford the legal services they need. Lawyers straining to makes end meet may resort to sharp practices to gain competitive advantage. Sadly, that means some lawyers will disparage other members of the bar.
Such disparagement can get you sued for defamation or other torts. So most lawyers are careful about what they say and how they say it. But there is a forum that makes such disparagement risk free: Whisper into the ear of a federal prosecutor, and suddenly your words are cloaked in either the law enforcement privilege or grand jury secrecy.
Consider Connecticut’s own rotten borough, the City of Waterbury. Federal prosecutors have toppled and imprisoned several of the city’s mayors. They have deposed and imprisoned a governor hailing from Waterbury. And now federal cross hairs are fixed on the back of State’s Attorney John Connelly. To get to Connelly, federal investigators have placed one of the City’s most successful criminal defense lawyers, Martin Minella, under a microscope. Marty’s competitors, fellow members of the bar, are jumping on this federal bandwagon hoping to grab a few new clients.
I represent Marty, so I write this without the detachment you might expect. I rarely write so directly and openly about a case I am handling. But I write about this case because I believe the investigation presents a clear and present danger to the bar of this state. I write to say to those among the Waterbury bar using the pending federal grand jury investigation of Connelly and Marty to settle personal and petty scores of their own: Shame on you.
Marty is a legend. At 62, he is no longer young, but he brings the zeal of a young warrior to every trial. Juries listen to him. He has won 17 of the past 18 criminal cases he has tried in to a verdict. As of today, he has 24 cases awaiting trial on the court’s serious crimes docket. He’s worked doggedly in Waterbury for decades. As a result, his practice thrives. I cannot think of another lawyer in Connecticut who can boast of Marty’s success with a jury in recent years, a fact which pains me to admit as I myself compete in the same market.
Although the Waterbury criminal court is the domain of Connelly, the state’s attorney himself does not try cases against Marty. They are, you see, good friends outside the courtroom. But, as anyone who has ever seen them discuss a case in a judicial pretrial will attest, they spar intensely in negotiations. Suggestions that Marty gets a break from Connelly or his office are ludicrous. One lawyer in Connelly’s office told me just the other day they try harder to beat Marty because he is, well, Marty. His earthy and almost irresistible jury appeal will someday earn him the nickname "My Cousin Marty."
Federal investigators have been fed a line by several disgruntled lawyers in town. The claim is that Marty has somehow procured favorable treatment from Connelly. Federal agents are scouring through tax records, credit card receipts and every record they can use a grand jury subpoena to obtain to try to show some quid pro quo. But they can look until the Republic collapses. There is nothing there. I sense they know this.
In the past week, the federal investigation has taken an ominous turn. Federal agents now appear to be working their way down a list of Marty’s former, and, potentially, current clients. They are asking questions. What did you pay? Why Marty? Did he promise you anything because of his friendship with Connelly?
When the agents don’t get the answers they like, the questions have from time to time turned mean, with witnesses being confronted with salacious allegations about their spouses. Veiled threats have been made. The prisons are aflame just now with chatter. Government agents are trolling the cell blocks looking for people prepared to say just the right thing.
All this is done under the cloak of secrecy, of course. My efforts to get information are met with stone walling. A grand jury is in place, you see.
Just when did the grand jury, an ancient device intended to stand between a citizen and a rogue government, become an investigative tool that could be resorted to by any fool with a chip on his shoulder?
Why, I keep wondering, are competitors of Marty’s in Waterbury so eager to chip away at the reputation of a man who worked for decades to learn to succeed? Don’t these lawyers realize what befalls Marty today awaits them tomorrow? Is jealousy so powerful a drug that it cannot be resisted?
Economics is often called the dismal science. But there is a science ever more dismal. It is the dark science of using grand jury secrecy to try to destroy a man. In Marty’s case the effort will fail. I will see to it. The effort is shameful and a discredit to the bar and the pursuit of justice.
Reprinted courtesy of the Connecticut Law Tribune.
Such disparagement can get you sued for defamation or other torts. So most lawyers are careful about what they say and how they say it. But there is a forum that makes such disparagement risk free: Whisper into the ear of a federal prosecutor, and suddenly your words are cloaked in either the law enforcement privilege or grand jury secrecy.
Consider Connecticut’s own rotten borough, the City of Waterbury. Federal prosecutors have toppled and imprisoned several of the city’s mayors. They have deposed and imprisoned a governor hailing from Waterbury. And now federal cross hairs are fixed on the back of State’s Attorney John Connelly. To get to Connelly, federal investigators have placed one of the City’s most successful criminal defense lawyers, Martin Minella, under a microscope. Marty’s competitors, fellow members of the bar, are jumping on this federal bandwagon hoping to grab a few new clients.
I represent Marty, so I write this without the detachment you might expect. I rarely write so directly and openly about a case I am handling. But I write about this case because I believe the investigation presents a clear and present danger to the bar of this state. I write to say to those among the Waterbury bar using the pending federal grand jury investigation of Connelly and Marty to settle personal and petty scores of their own: Shame on you.
Marty is a legend. At 62, he is no longer young, but he brings the zeal of a young warrior to every trial. Juries listen to him. He has won 17 of the past 18 criminal cases he has tried in to a verdict. As of today, he has 24 cases awaiting trial on the court’s serious crimes docket. He’s worked doggedly in Waterbury for decades. As a result, his practice thrives. I cannot think of another lawyer in Connecticut who can boast of Marty’s success with a jury in recent years, a fact which pains me to admit as I myself compete in the same market.
Although the Waterbury criminal court is the domain of Connelly, the state’s attorney himself does not try cases against Marty. They are, you see, good friends outside the courtroom. But, as anyone who has ever seen them discuss a case in a judicial pretrial will attest, they spar intensely in negotiations. Suggestions that Marty gets a break from Connelly or his office are ludicrous. One lawyer in Connelly’s office told me just the other day they try harder to beat Marty because he is, well, Marty. His earthy and almost irresistible jury appeal will someday earn him the nickname "My Cousin Marty."
Federal investigators have been fed a line by several disgruntled lawyers in town. The claim is that Marty has somehow procured favorable treatment from Connelly. Federal agents are scouring through tax records, credit card receipts and every record they can use a grand jury subpoena to obtain to try to show some quid pro quo. But they can look until the Republic collapses. There is nothing there. I sense they know this.
In the past week, the federal investigation has taken an ominous turn. Federal agents now appear to be working their way down a list of Marty’s former, and, potentially, current clients. They are asking questions. What did you pay? Why Marty? Did he promise you anything because of his friendship with Connelly?
When the agents don’t get the answers they like, the questions have from time to time turned mean, with witnesses being confronted with salacious allegations about their spouses. Veiled threats have been made. The prisons are aflame just now with chatter. Government agents are trolling the cell blocks looking for people prepared to say just the right thing.
All this is done under the cloak of secrecy, of course. My efforts to get information are met with stone walling. A grand jury is in place, you see.
Just when did the grand jury, an ancient device intended to stand between a citizen and a rogue government, become an investigative tool that could be resorted to by any fool with a chip on his shoulder?
Why, I keep wondering, are competitors of Marty’s in Waterbury so eager to chip away at the reputation of a man who worked for decades to learn to succeed? Don’t these lawyers realize what befalls Marty today awaits them tomorrow? Is jealousy so powerful a drug that it cannot be resisted?
Economics is often called the dismal science. But there is a science ever more dismal. It is the dark science of using grand jury secrecy to try to destroy a man. In Marty’s case the effort will fail. I will see to it. The effort is shameful and a discredit to the bar and the pursuit of justice.
Reprinted courtesy of the Connecticut Law Tribune.
Wednesday, August 25, 2010
Four Films and a Good Mentor
Perhaps the most impressive lawyer I ever met no longer appears in court. But that does not stop me from seeking his advice from time to time. Remarkably, F. Lee Bailey is also a man of tremendous generosity. So I spent the afternoon with him yesterday talking about the law and life.
Talking with Bailey can be an ego-bruising experience: His career is unique in American law and letters. He has written widely and well, dabbling in fiction, writing popular books about the law and lawyering, and authoring practice aids in a wide variety of fields for lawyers. He's been involved in some of the highest profile cases of the past half century, too, ranging from the Boston strangler to, of course, O.J. Simpson. His is a household name throughout the country. Bottomline: When speaking with him there's no point trying to raise an eyebrow with a war story of your own. He's been there and done that, twice.
I find him an easier companion than Gerry Spence. Sure, both are great talents. Somehow Bailey seems to need less from those around him than does Spence.
At 77, Bailey now lives in Southern Maine. His mind remains sharp and incisive, and, although he is no longer practicing law, his insight on trial problems remains amazing. One of the great joys of talking to him about a case is that the evidence code remains so much a part of him that his assessment of the world cannot help, or so it seems, to begin and end with a candid appraisal of a fact's admissibility.
Bailey remains passionate about the potential use of polygraphs in criminal proceedings. I am somewhat dubious, but he is adamant. I left his home with a copy of a recent brief on which he collaborated together with instructions not to share its contents unless given permission to do so. I learned a long time ago that when he gives you something to read, you may as well just read the material before asking more questions. He tolerates ignorance well; he is a good teacher. He tolerates fools not at all.
Conversation turned at some point to the state of the American criminal bar. Bailey is a keen student of the game. He has so many facts and stories at his finger tips I wonder whether he ever sleeps. It may just be that his is a rare form of genius. What I struggle to learn he merely absorbs.
I am, of course, keeping the best parts of the conversation to myself. I went for advice on a few things, and came home amply rewarded for the pilgrimage. But I do have a little something to share. When he was in the business of hiring and training young lawyers, he used to insist that they watch four films on trial lawyering. Here they are: QB7. Anatomy of a Murder, Witness for the Prosecution and To Kill a Mockingbird.
His recommendation is enough to prompt me to watch them all. And the afternoon I spent largely listening reminds that I am blessed with mentors I do not deserve.
Talking with Bailey can be an ego-bruising experience: His career is unique in American law and letters. He has written widely and well, dabbling in fiction, writing popular books about the law and lawyering, and authoring practice aids in a wide variety of fields for lawyers. He's been involved in some of the highest profile cases of the past half century, too, ranging from the Boston strangler to, of course, O.J. Simpson. His is a household name throughout the country. Bottomline: When speaking with him there's no point trying to raise an eyebrow with a war story of your own. He's been there and done that, twice.
I find him an easier companion than Gerry Spence. Sure, both are great talents. Somehow Bailey seems to need less from those around him than does Spence.
At 77, Bailey now lives in Southern Maine. His mind remains sharp and incisive, and, although he is no longer practicing law, his insight on trial problems remains amazing. One of the great joys of talking to him about a case is that the evidence code remains so much a part of him that his assessment of the world cannot help, or so it seems, to begin and end with a candid appraisal of a fact's admissibility.
Bailey remains passionate about the potential use of polygraphs in criminal proceedings. I am somewhat dubious, but he is adamant. I left his home with a copy of a recent brief on which he collaborated together with instructions not to share its contents unless given permission to do so. I learned a long time ago that when he gives you something to read, you may as well just read the material before asking more questions. He tolerates ignorance well; he is a good teacher. He tolerates fools not at all.
Conversation turned at some point to the state of the American criminal bar. Bailey is a keen student of the game. He has so many facts and stories at his finger tips I wonder whether he ever sleeps. It may just be that his is a rare form of genius. What I struggle to learn he merely absorbs.
I am, of course, keeping the best parts of the conversation to myself. I went for advice on a few things, and came home amply rewarded for the pilgrimage. But I do have a little something to share. When he was in the business of hiring and training young lawyers, he used to insist that they watch four films on trial lawyering. Here they are: QB7. Anatomy of a Murder, Witness for the Prosecution and To Kill a Mockingbird.
His recommendation is enough to prompt me to watch them all. And the afternoon I spent largely listening reminds that I am blessed with mentors I do not deserve.
Sunday, August 22, 2010
Grand Jury Abuse: Time For A More Aggressive Assertion of the Fifth Amendment?
We've come a long, long way from the era of the founding in the United States. Federal grand juries, which were once a means of protecting people from the infamy attendant to being investigated for a crime, are now the secret tool of prosecutors free to rummage with subpoenas through virtually every area of your life. Fear of the unknown has become a prosecutor's best friend. Prosecutors play on that fear, claiming all the while that grand jury secrecy is sacrosanct.
Consider the following: Prosecutors reach out to talk to you. There are suspicions that you have broken the law. You retain a lawyer. Your lawyer speaks to federal prosecutors to get a sense of what's going on.
At this point, you have several choices. Obviously, if you are the target of such an investigation, you have every reason to want to know the nature of the allegations being leveled against you. You press. "Grand jury secrecy," the prosecutor intones and he says little. But this is really little more than self-righteous bullshit. You are pouring through the offal of my life and you must keep secret what you are doing to me? The history of the grand jury is rooted in a different source: A grand jury was supposed to protect a citizen against the abuse of government power. Today the grand jury has been transformed into an investigative Star Chamber.
It is not uncommon for lawyers faced with a pending investigation of their clients to attend what I call a "show and tell proffer." You sit with a prosecutor and a "special agent" or two of the FBI -- practice pointer, all FBI agents are "special." The government lays out in general terms the evidence that it thinks supports criminal charges against you. At this point, you can either respond to the claims or not.
If you choose to respond, your lawyer will insist that you do so under cloak of what is known as a proffer agreement. This is a contract. The government promises not to use your words against you; you promise to tell the truth. All best are off, however, if you lie. Then you can be prosecuted for making a false statement to federal officials. That's what happened to Rod Blagojevich. Making a false statement is far different from a perjury charge; your statement needn't be under oath, as is the case with perjury, it merely need be on some material fact and made to a federal official acting within the scope of his or her duty. The feds can often make something of nothing by scaring the wits out of a person at a proffer, and then prosecuting them for the lying when all else fails.
A story in today's New York Times reflects this nasty pattern. Barry Bonds will face criminal trial next year lying to a grand jury about his steroid use. (He was under oath then.) Roger Clemens will be prosecuted for lying to Congress about his steroid use. (He, too, was under oath.) Marion Jones, a gold medal sprinter went to prison for lying to investigators. And now there are reports that the Postal Service bicycling team, the star of which is Lance Armstrong, is under federal investigation and may face charges of fraud, drug distribution, tax evasion and money laundering. Expect a few counts of lying to be tossed in as well. As a general rule, and with few exceptions, it is wise to plead the Fifth whenever the government comes calling. There is no telling how your words will be used against you.
These prosecutions for perjury and false statement would be less frequent with a more transparent grand jury process. I am not suggesting that the grand jury should be opened to public view. What I am saying is that a process that was intended to protect citizens from over aggressive government officials should be open and transparent to those targeted for prosecution. Using grand juries to develop secret cases against folks and then playing hide and go seek with the truth when interviewing targets is obscene; it wreaks of Stalin, not Jefferson.
The early stages of a federal investigation are steeped in fear. A target hopes against hope that someone will listen. Sure, there is an inculpatory cast that be spun for the issues at hand. But considered fairly, the truth is far more complex. A target hopes that by being candid, the government will listen. But candor is a one-way street in this secret process. Too often, grand juries are used as secret tools to rebut the claims made by targets in proffer sessions. Frightened clients are inclined to trust and hope that a true word will deflect the secret ambitions of prosecutors looking for new scalps to mount on their totem pole. The temptation to waive the Fifth Amendment and speak at a proffer is great.
It cannot be good law to permit prosecutors to use secret grand juries to unearth awkward half-truths about a person and then not tell the person about these misperceptions while there is still time to avoid the train wreck and expense of a trial.
I am increasingly inclined to take a hard line about discussions with the federal government on my client's behalf. If the government is going to be coy about speaking the truth, then it seems prudent to consider seriously whether they deserve the right to speak to my client. Sure, the risks of silence can be great: misperceptions can yield a trial, with all the risk that entails. But I'd rather let a jury sort out the truth than play cat and mouse with a government that has turned the use of grand juries on its heads and has transformed the grand jury into a secret chamber of terror.
Don't grand jurors ever revolt and ask the prosecutors tending them behind closed doors why the other side isn't present to offer its point of view?
Consider the following: Prosecutors reach out to talk to you. There are suspicions that you have broken the law. You retain a lawyer. Your lawyer speaks to federal prosecutors to get a sense of what's going on.
At this point, you have several choices. Obviously, if you are the target of such an investigation, you have every reason to want to know the nature of the allegations being leveled against you. You press. "Grand jury secrecy," the prosecutor intones and he says little. But this is really little more than self-righteous bullshit. You are pouring through the offal of my life and you must keep secret what you are doing to me? The history of the grand jury is rooted in a different source: A grand jury was supposed to protect a citizen against the abuse of government power. Today the grand jury has been transformed into an investigative Star Chamber.
It is not uncommon for lawyers faced with a pending investigation of their clients to attend what I call a "show and tell proffer." You sit with a prosecutor and a "special agent" or two of the FBI -- practice pointer, all FBI agents are "special." The government lays out in general terms the evidence that it thinks supports criminal charges against you. At this point, you can either respond to the claims or not.
If you choose to respond, your lawyer will insist that you do so under cloak of what is known as a proffer agreement. This is a contract. The government promises not to use your words against you; you promise to tell the truth. All best are off, however, if you lie. Then you can be prosecuted for making a false statement to federal officials. That's what happened to Rod Blagojevich. Making a false statement is far different from a perjury charge; your statement needn't be under oath, as is the case with perjury, it merely need be on some material fact and made to a federal official acting within the scope of his or her duty. The feds can often make something of nothing by scaring the wits out of a person at a proffer, and then prosecuting them for the lying when all else fails.
A story in today's New York Times reflects this nasty pattern. Barry Bonds will face criminal trial next year lying to a grand jury about his steroid use. (He was under oath then.) Roger Clemens will be prosecuted for lying to Congress about his steroid use. (He, too, was under oath.) Marion Jones, a gold medal sprinter went to prison for lying to investigators. And now there are reports that the Postal Service bicycling team, the star of which is Lance Armstrong, is under federal investigation and may face charges of fraud, drug distribution, tax evasion and money laundering. Expect a few counts of lying to be tossed in as well. As a general rule, and with few exceptions, it is wise to plead the Fifth whenever the government comes calling. There is no telling how your words will be used against you.
These prosecutions for perjury and false statement would be less frequent with a more transparent grand jury process. I am not suggesting that the grand jury should be opened to public view. What I am saying is that a process that was intended to protect citizens from over aggressive government officials should be open and transparent to those targeted for prosecution. Using grand juries to develop secret cases against folks and then playing hide and go seek with the truth when interviewing targets is obscene; it wreaks of Stalin, not Jefferson.
The early stages of a federal investigation are steeped in fear. A target hopes against hope that someone will listen. Sure, there is an inculpatory cast that be spun for the issues at hand. But considered fairly, the truth is far more complex. A target hopes that by being candid, the government will listen. But candor is a one-way street in this secret process. Too often, grand juries are used as secret tools to rebut the claims made by targets in proffer sessions. Frightened clients are inclined to trust and hope that a true word will deflect the secret ambitions of prosecutors looking for new scalps to mount on their totem pole. The temptation to waive the Fifth Amendment and speak at a proffer is great.
It cannot be good law to permit prosecutors to use secret grand juries to unearth awkward half-truths about a person and then not tell the person about these misperceptions while there is still time to avoid the train wreck and expense of a trial.
I am increasingly inclined to take a hard line about discussions with the federal government on my client's behalf. If the government is going to be coy about speaking the truth, then it seems prudent to consider seriously whether they deserve the right to speak to my client. Sure, the risks of silence can be great: misperceptions can yield a trial, with all the risk that entails. But I'd rather let a jury sort out the truth than play cat and mouse with a government that has turned the use of grand juries on its heads and has transformed the grand jury into a secret chamber of terror.
Don't grand jurors ever revolt and ask the prosecutors tending them behind closed doors why the other side isn't present to offer its point of view?
Liar, Liar, Dick's On Fire
One of the hardest things about being married to a woman far smarter than I am is that I never really get to enjoy a movie: We'll be sitting there watching the plot unfold. About the time I sense that there is an issue to resolve, my wife has already figured it out and solved it. It happened last night, watching Roman Polanski's The Ghost Writer. I bear the burden of her genius with an admiration tinged with a smattering of intimidation.
So I take seriously her impressions of the Connecticut Senate race pitting Richard Blumenthal against Linda McMahon. Months ago, it seemed like a no brainer: Blumenthal may well be a media-loving pretty boy, but he has been a good consumers' attorney general. Let's send him to the Senate, I thought. He knows his way around the political process. Linda McMahon, by contrast, seemed like a caricature: another wealthy entrepreneur riding the outsider's wave of rage and discontent, Sarah Palin with a bank account. I was not prepared to send McMahon from the executive suite of the World Wrestling Entertainment to the Senate. Somehow the prospects of Hulk Hogan's mommy sitting in the Senate did not sit well with me.
But that was before Blumenthal was shown to be a liar about his Vietnam war record. Why would a man with a sterling resume feel the need to lie? If ever a man dripped credentials, it is he. His efforts to spin the catastrophe following revelation of his lies hardly inspired confidence. But the crisis passed, and I was prepared if not to forgive, then at least to try to forget the prospect of Fox Hole Dick's talking to his imaginary friends in the red glare of his hallucinogenic rockets.
Then came the recent revelation that Blumenthal has once again played stranger to the simple imperatives of truth-telling: He boasts of never having received PAC money. Yet federal records reflect he's taken almost $500,000 from PACs since making his claim to be purer than the driven snow. This from a man independently wealthy. Why the almost compulsive need to lie and to posture as something better than he is?
My wife sent me a press report about Blumenthal's latest whoppers. I read it and found myself doing the unthinkable: It is November. I enter a polling booth and read the ballots. I see the name Richard Blumethal for U.S. Senate, and I pass over it. With reluctance, I pull the lever for Linda McMahon. As I pull the lever I am aware I am not so much voting for her as I am against a man of near sociopathic arrogance.
I told my wife this. She was, of course, shocked. She is a good lefty. I, on the other hand, rarely vote. The candidates all seem to look alike to me, a bunch of lying opportunists who serve interests largely foreign to me. I asked her why Blumenthal's lies bug me so much; it's not as though I expected to find virtue in the brothel. Oddly, revulsion over repeated lies could push from a no-show to voter in November.
My moral compass reports she too is bothered by his lies: It is because in contrasts so vividly with his self-righteousness, she told me.
But when I told her some inchoate notion of voting for McMahon was taking shape, she rebuked me. "She's awful," she told me. "But what of Blumethal?," I asked. "He's merely yellow," she said. As always when she says things I don't want to hear, I did not then, and do not now, fully understand her. She is wise, I well you. (I concede her decision to accept my proposal was a lapse in otherwise exemplary judgment.)
Pollsters, don't bother calling our home. We have one reluctant vote for Blumenthal, and one undecided drifting toward McMahon out of a sense of almost visceral disgust. Just now, I suspect the Dicker's a winner. My wife sees that. But come Labor Day who knows what new whoppers will surface?
So I take seriously her impressions of the Connecticut Senate race pitting Richard Blumenthal against Linda McMahon. Months ago, it seemed like a no brainer: Blumenthal may well be a media-loving pretty boy, but he has been a good consumers' attorney general. Let's send him to the Senate, I thought. He knows his way around the political process. Linda McMahon, by contrast, seemed like a caricature: another wealthy entrepreneur riding the outsider's wave of rage and discontent, Sarah Palin with a bank account. I was not prepared to send McMahon from the executive suite of the World Wrestling Entertainment to the Senate. Somehow the prospects of Hulk Hogan's mommy sitting in the Senate did not sit well with me.
But that was before Blumenthal was shown to be a liar about his Vietnam war record. Why would a man with a sterling resume feel the need to lie? If ever a man dripped credentials, it is he. His efforts to spin the catastrophe following revelation of his lies hardly inspired confidence. But the crisis passed, and I was prepared if not to forgive, then at least to try to forget the prospect of Fox Hole Dick's talking to his imaginary friends in the red glare of his hallucinogenic rockets.
Then came the recent revelation that Blumenthal has once again played stranger to the simple imperatives of truth-telling: He boasts of never having received PAC money. Yet federal records reflect he's taken almost $500,000 from PACs since making his claim to be purer than the driven snow. This from a man independently wealthy. Why the almost compulsive need to lie and to posture as something better than he is?
My wife sent me a press report about Blumenthal's latest whoppers. I read it and found myself doing the unthinkable: It is November. I enter a polling booth and read the ballots. I see the name Richard Blumethal for U.S. Senate, and I pass over it. With reluctance, I pull the lever for Linda McMahon. As I pull the lever I am aware I am not so much voting for her as I am against a man of near sociopathic arrogance.
I told my wife this. She was, of course, shocked. She is a good lefty. I, on the other hand, rarely vote. The candidates all seem to look alike to me, a bunch of lying opportunists who serve interests largely foreign to me. I asked her why Blumenthal's lies bug me so much; it's not as though I expected to find virtue in the brothel. Oddly, revulsion over repeated lies could push from a no-show to voter in November.
My moral compass reports she too is bothered by his lies: It is because in contrasts so vividly with his self-righteousness, she told me.
But when I told her some inchoate notion of voting for McMahon was taking shape, she rebuked me. "She's awful," she told me. "But what of Blumethal?," I asked. "He's merely yellow," she said. As always when she says things I don't want to hear, I did not then, and do not now, fully understand her. She is wise, I well you. (I concede her decision to accept my proposal was a lapse in otherwise exemplary judgment.)
Pollsters, don't bother calling our home. We have one reluctant vote for Blumenthal, and one undecided drifting toward McMahon out of a sense of almost visceral disgust. Just now, I suspect the Dicker's a winner. My wife sees that. But come Labor Day who knows what new whoppers will surface?
The Trial Tax And Cancer: Stonum's Concern
Lee Stonum called me on a point that is worth pondering in a comment yesterday about my post wondering whether good lawyers can learn from good doctors. The premise of that piece was an analogy between cancer and a criminal charge: In both cases, professionals help those dependent upon them to manage risk. Central to the task of both lawyers and doctors is the management of hope and expectation in the face of catastrophe.
Lee's point disconcerted me. He so quickly found a fatal flaw in my analogy that I went about my chores yesterday (it was Saturday, and there are only so many days left in the Summer; I've plenty of outside work to get done before winter, and I worry that I cannot it all done) with a heavy heart and a spinning head.
Facing trial is not like facing cancer for the simple reason that, unlike cancer, a trial is the product of deliberate human will and conscious deliberation. Cancer occurs, whether the proximate but indirect result of human conduct, e.g., the use of pesticides. A trial is the result of a decision by prosecutors to single out a person for some real or imagined violation of the law. What's more, in a criminal prosecution, a judge is charged with the responsibility to see that the parties are treated fairly. There is no role analogous that of the judge in the oncologist's word; a doctor faces forces at once darker and more oblique. The law boasts of transparency; the physician struggles against opaque and primitive forces.
This is nowhere so evident as in the case of what criminal defense lawyers call the trial tax, the iron fist hidden beneath the Bill of Rights's velvet glove. As Stonum points out, there is a great risk in the criminal justice system that lawyers counsel guilty pleas in cases in which clients are either overcharged or actually innocent in order to avoid the punitive hammer that comes of holding the state to its burden of proof at trial. The trial tax, an opaque factor looming forever in the background, betrays the law's promise of transparency to be a farce.
Consider the following: Police observe a suspicious transaction between two men. As the officers walk toward the men one flees; it appears as though something was tossed as the man fled. The remaining man hands police officers his wallet on request. He, too, then breaks free and runs, escaping. The police still have a wallet, however. The officers find small bags of crack cocaine in the area where things appeared to be thrown.
An hour or so after this confrontation, the owner of the wallet calls the police station to report his wallet stolen. When officers go to the home of the man reporting the missing wallet, they recognize him as the very man who fled their custody. He is charged with possession with intent to sell crack cocaine and related offenses.
During plea negotiations the state offers the man two years to plead guilty to lesser charges. The man rejects the deal, and the case his tried. His father, sister and girlfriend testify he was at home with them at the very time officers claim to have stopped the man. It is a case claiming mistaken identity and alibi.
The jury convicts the man. His sentence? Eighteen years in prison. The tax imposed for going to trial was assessed at a rate of 900 percent! (The sentence was so severe the man's mother headed for a balcony on the courthouse's sixth floor after sentence was imposed. As her husband watched this, he collapsed with chest pain.)
In retrospect, I am sure this young man and his family wish that he had taken the two-year offer. The case was tried a decade ago; the man is still behind bars. Hindsight is 20-20.
But what of foresight? What is the lawyer's role? Stonum describes the process he goes through of counseling clients facing hard choices. But that process works best with clients possessing the intellectual and emotional resources to make candid judgments about their prospects. Some clients and families cannot face these decisions any more than a cancer victim can frankly assess their odds. Hope, perhaps like free will, is a necessary illusion.
I am troubled by the trial tax. I wonder, really, whether there ought to be something like binding high-low offers on the criminal side. The practice of setting upper and lower limits on recovery in civil arbitrations is common: Parties agree to avoid the risk of a zero-sum game by agreeing that recovery can fall within a given range. Why, if we value the Bill of Rights and the presumption of innocence as much as we say we do are we not engaged in imposing limits on the trial tax? When lawyers counsel clients about the punitive nature of claiming the rights all defendants are guaranteed something is wrong.
I hope Stonum sees this post. I would like to advance the discussion here. I concede the trial tax is a real and present danger to defendants seeking to resolve their case. And lawyers too timid to try cases will easily quake in the face of harsh offers, thus encouraging the state to overcharge and engage in legally sanctioned extortion. The system fails if lawyers are unwilling to try cases. I wonder, finally, whether there ought not to be due process limitations on the trial tax.
There is something fundamentally wrong with the practice. Good lawyers need to acknowledge the reality of this silent killer of Constitutional hopes and dreams; it adds a layer of complexity to our counseling of clients that physicians do not face.
Lee's point disconcerted me. He so quickly found a fatal flaw in my analogy that I went about my chores yesterday (it was Saturday, and there are only so many days left in the Summer; I've plenty of outside work to get done before winter, and I worry that I cannot it all done) with a heavy heart and a spinning head.
Facing trial is not like facing cancer for the simple reason that, unlike cancer, a trial is the product of deliberate human will and conscious deliberation. Cancer occurs, whether the proximate but indirect result of human conduct, e.g., the use of pesticides. A trial is the result of a decision by prosecutors to single out a person for some real or imagined violation of the law. What's more, in a criminal prosecution, a judge is charged with the responsibility to see that the parties are treated fairly. There is no role analogous that of the judge in the oncologist's word; a doctor faces forces at once darker and more oblique. The law boasts of transparency; the physician struggles against opaque and primitive forces.
This is nowhere so evident as in the case of what criminal defense lawyers call the trial tax, the iron fist hidden beneath the Bill of Rights's velvet glove. As Stonum points out, there is a great risk in the criminal justice system that lawyers counsel guilty pleas in cases in which clients are either overcharged or actually innocent in order to avoid the punitive hammer that comes of holding the state to its burden of proof at trial. The trial tax, an opaque factor looming forever in the background, betrays the law's promise of transparency to be a farce.
Consider the following: Police observe a suspicious transaction between two men. As the officers walk toward the men one flees; it appears as though something was tossed as the man fled. The remaining man hands police officers his wallet on request. He, too, then breaks free and runs, escaping. The police still have a wallet, however. The officers find small bags of crack cocaine in the area where things appeared to be thrown.
An hour or so after this confrontation, the owner of the wallet calls the police station to report his wallet stolen. When officers go to the home of the man reporting the missing wallet, they recognize him as the very man who fled their custody. He is charged with possession with intent to sell crack cocaine and related offenses.
During plea negotiations the state offers the man two years to plead guilty to lesser charges. The man rejects the deal, and the case his tried. His father, sister and girlfriend testify he was at home with them at the very time officers claim to have stopped the man. It is a case claiming mistaken identity and alibi.
The jury convicts the man. His sentence? Eighteen years in prison. The tax imposed for going to trial was assessed at a rate of 900 percent! (The sentence was so severe the man's mother headed for a balcony on the courthouse's sixth floor after sentence was imposed. As her husband watched this, he collapsed with chest pain.)
In retrospect, I am sure this young man and his family wish that he had taken the two-year offer. The case was tried a decade ago; the man is still behind bars. Hindsight is 20-20.
But what of foresight? What is the lawyer's role? Stonum describes the process he goes through of counseling clients facing hard choices. But that process works best with clients possessing the intellectual and emotional resources to make candid judgments about their prospects. Some clients and families cannot face these decisions any more than a cancer victim can frankly assess their odds. Hope, perhaps like free will, is a necessary illusion.
I am troubled by the trial tax. I wonder, really, whether there ought to be something like binding high-low offers on the criminal side. The practice of setting upper and lower limits on recovery in civil arbitrations is common: Parties agree to avoid the risk of a zero-sum game by agreeing that recovery can fall within a given range. Why, if we value the Bill of Rights and the presumption of innocence as much as we say we do are we not engaged in imposing limits on the trial tax? When lawyers counsel clients about the punitive nature of claiming the rights all defendants are guaranteed something is wrong.
I hope Stonum sees this post. I would like to advance the discussion here. I concede the trial tax is a real and present danger to defendants seeking to resolve their case. And lawyers too timid to try cases will easily quake in the face of harsh offers, thus encouraging the state to overcharge and engage in legally sanctioned extortion. The system fails if lawyers are unwilling to try cases. I wonder, finally, whether there ought not to be due process limitations on the trial tax.
There is something fundamentally wrong with the practice. Good lawyers need to acknowledge the reality of this silent killer of Constitutional hopes and dreams; it adds a layer of complexity to our counseling of clients that physicians do not face.
Saturday, August 21, 2010
What Can Good Doctors Teach Good Lawyers?
Are trial lawyers supposed to have good bedside manners?
The question itself should not be answered uncritically, or too quickly. Packed within it is an analogy between lawyering and doctoring that may well be too facilely drawn. A recent article by Atul Gawande, a surgeon, in The New Yorker, "The last days of life," The New Yorker, August 2, 2010, pushed me headlong into a lost morning of rumination: How well do I serve the needs of my clients when it comes time to deciding whether to go to trial? Is there an analogy between doctors counseling patients at the end of life and lawyers counseling clients on the eve of trial?
Gawande is a surgeon at the Brigham and Young Hospital in Boston, and an associate professor at the Harvard Medical School. He is among a handful of medical doctors who write convincingly and well about the human dimension of medicine. (My personal favorite is Sherwin Niland.) No one seems to be writing in this vein among trial lawyers; we favor brash chest-thumping.
Gawande takes us bedside to explore why we spend so many of our health care dollars caring for those in the final few months of life. He notes that 25 percent of all Medicare spending is for the five percent of patients in the final year of their lives. Why do we throw money at the inevitable? Are there better choices that can be made?
Framing the question in this way pits patient autonomy against social utility. We defer, and rightly so in my view, to autonomy. But Gawande points convincingly to a third way: Shouldn't end of life decisions be governed by an ethic of enhancing the quality of life, rather than mere extension of its duration? Surprisingly, when patients are given a choice between hospice and hospital care in the treatment of end-of life conditions, many choose hospice care. Paradoxically, this may well extend not just the quality of a person's final days, but the number of days themselves.
But doctors, no less than patients, do not want to face the cold reality of a fatal prognosis. It is easier in some instances to avoid the issue by offering bland assessments -- "there is hope" -- than it is to sit cheek by jowl with a patient and family facing death and talking frankly about what the future holds.
What has this to do with lawyering, more specifically with criminal lawyering?
Whatever conduct a client may have engaged in to draw the attention of law enforcement, few clients want to be prosecuted. A prosecution, like cancer, is something that happens to a client against their will. Sure, a smoker brings the odds of cancer down upon himself, just as a drug dealer flirts with prison. But criminal law shares much with medicine: we fight invasions of liberty, just as physicians fight threats to life. Patient and client view things as happening to them; we are supposed to control these things. Many clients "catch" cases, reflecting the same process by which they come down with a common cold.
In both the case of medicine and the law, experienced practitioners develop a sense of what is reasonable to expect; I suppose this is what doctors call a prognosis. In the context of the law, a lawyer looks at the evidence, the law and available defenses when assessing a foreseeable outcome. How different is a lawyer's pretrial work from that of a diagnostician ordering tests? Both aim at the same result: What can be done to meet the crisis at hand?
Despite medicine's hybrid character as art and science, there is a growing body of statistical data that permits some objectivity in forecasting outcomes. Federal regulators, for example, engage in extensive clinical trials to decide whether to approve the use of certain drugs. All physicians have elementary training in statistics, and are trained to consult databases to assess the efficacy and risks of proposed courses of treatment for given diagnoses. Obviously, skill in diagnosis differ greatly among physicians.
Outcomes that are common fall along the middle of a bell-shaped curve, but there are foreseeable cases much worse and much better than the norm. Desperate people always seize the favorable outlier as hope: If there is a one in one thousandth chance of a cure, I want to be the one thousandth person; indeed, I expect to be that person. Medicine and medical costs are driven by the unrealistic hope that each of us will enjoy the miracle rarely dispensed.
Put in terms of a trial lawyer's life: All of our clients expect to be Rod Blagojevich or O.J. Simpson, at least on the criminal side. Sure, there was a mountain of evidence against the governor. But he was convicted, at his first trial at least, of but one count, the flimsiest count of all. O. J. was acquitted. Shouldn't well all go to trial against such hope?
There is glamor, fame and fortune to be made by lawyers riding the outliers. Gerry Spence announces he has never lost a criminal trial. We celebrate Vincent Bugliosi for much the same thing. We praise the winners and shun the losers in the high-stakes world of criminal defense. There is nothing wrong with that, but, I wonder whether the race horses of the bar actually do more damage than good when they hold themselves out as models for young lawyers.
There are times when it is foreseeable that given the facts and the evidence, a client will be convicted at trial. Isn't it a lawyer's responsibility at that time to counsel caution?
Consider the following case: A businessman facing a white collar prosecution is told by his lawyers that he has a fifty-fifty chance of winning his case at trial. Is that really a candid assessment of the risk going forward, or the sort of evasion a physician might make when asked by a client about whether the client will die? It sounds perilously like telling a person there is hope. (There are no databases in the law to permit a practitioner to consult data on potential outcomes.) On a plea, the client faces a handful of years in prison; after trial, the number is far higher.) Shouldn't the lawyer do more than dodge the question with a breezy sort of optimism that likens trial to a game of chance?
The client wants to hear hope, but candor may require a bleak assessment of a grim future. In the medical system evasion of difficult truths often results in wasteful care that actually decreases the quality of life for patients suffering fatal and final illnesses. I suspect in the law there is similar waste: misplaced hope yields extra decades in prison.
Gawande is on the cutting edge of discussions about medical risk, responsibility and quality of life for patients. The law has yet even to begin this discussion in meaningful ways. Instead, we celebrate the law's outliers, lawyers smart enough to pick winners, and good enough to win most cases. (Their losses, when they have them, are rarely discussed.)
I want to meet Dr. Gawande. Better yet, I will be looking for seminars at which physicians speak about counseling patients at the end of life. I suspect trial lawyers can learn a lot from doctors.
The question itself should not be answered uncritically, or too quickly. Packed within it is an analogy between lawyering and doctoring that may well be too facilely drawn. A recent article by Atul Gawande, a surgeon, in The New Yorker, "The last days of life," The New Yorker, August 2, 2010, pushed me headlong into a lost morning of rumination: How well do I serve the needs of my clients when it comes time to deciding whether to go to trial? Is there an analogy between doctors counseling patients at the end of life and lawyers counseling clients on the eve of trial?
Gawande is a surgeon at the Brigham and Young Hospital in Boston, and an associate professor at the Harvard Medical School. He is among a handful of medical doctors who write convincingly and well about the human dimension of medicine. (My personal favorite is Sherwin Niland.) No one seems to be writing in this vein among trial lawyers; we favor brash chest-thumping.
Gawande takes us bedside to explore why we spend so many of our health care dollars caring for those in the final few months of life. He notes that 25 percent of all Medicare spending is for the five percent of patients in the final year of their lives. Why do we throw money at the inevitable? Are there better choices that can be made?
Framing the question in this way pits patient autonomy against social utility. We defer, and rightly so in my view, to autonomy. But Gawande points convincingly to a third way: Shouldn't end of life decisions be governed by an ethic of enhancing the quality of life, rather than mere extension of its duration? Surprisingly, when patients are given a choice between hospice and hospital care in the treatment of end-of life conditions, many choose hospice care. Paradoxically, this may well extend not just the quality of a person's final days, but the number of days themselves.
But doctors, no less than patients, do not want to face the cold reality of a fatal prognosis. It is easier in some instances to avoid the issue by offering bland assessments -- "there is hope" -- than it is to sit cheek by jowl with a patient and family facing death and talking frankly about what the future holds.
What has this to do with lawyering, more specifically with criminal lawyering?
Whatever conduct a client may have engaged in to draw the attention of law enforcement, few clients want to be prosecuted. A prosecution, like cancer, is something that happens to a client against their will. Sure, a smoker brings the odds of cancer down upon himself, just as a drug dealer flirts with prison. But criminal law shares much with medicine: we fight invasions of liberty, just as physicians fight threats to life. Patient and client view things as happening to them; we are supposed to control these things. Many clients "catch" cases, reflecting the same process by which they come down with a common cold.
In both the case of medicine and the law, experienced practitioners develop a sense of what is reasonable to expect; I suppose this is what doctors call a prognosis. In the context of the law, a lawyer looks at the evidence, the law and available defenses when assessing a foreseeable outcome. How different is a lawyer's pretrial work from that of a diagnostician ordering tests? Both aim at the same result: What can be done to meet the crisis at hand?
Despite medicine's hybrid character as art and science, there is a growing body of statistical data that permits some objectivity in forecasting outcomes. Federal regulators, for example, engage in extensive clinical trials to decide whether to approve the use of certain drugs. All physicians have elementary training in statistics, and are trained to consult databases to assess the efficacy and risks of proposed courses of treatment for given diagnoses. Obviously, skill in diagnosis differ greatly among physicians.
Outcomes that are common fall along the middle of a bell-shaped curve, but there are foreseeable cases much worse and much better than the norm. Desperate people always seize the favorable outlier as hope: If there is a one in one thousandth chance of a cure, I want to be the one thousandth person; indeed, I expect to be that person. Medicine and medical costs are driven by the unrealistic hope that each of us will enjoy the miracle rarely dispensed.
Put in terms of a trial lawyer's life: All of our clients expect to be Rod Blagojevich or O.J. Simpson, at least on the criminal side. Sure, there was a mountain of evidence against the governor. But he was convicted, at his first trial at least, of but one count, the flimsiest count of all. O. J. was acquitted. Shouldn't well all go to trial against such hope?
There is glamor, fame and fortune to be made by lawyers riding the outliers. Gerry Spence announces he has never lost a criminal trial. We celebrate Vincent Bugliosi for much the same thing. We praise the winners and shun the losers in the high-stakes world of criminal defense. There is nothing wrong with that, but, I wonder whether the race horses of the bar actually do more damage than good when they hold themselves out as models for young lawyers.
There are times when it is foreseeable that given the facts and the evidence, a client will be convicted at trial. Isn't it a lawyer's responsibility at that time to counsel caution?
Consider the following case: A businessman facing a white collar prosecution is told by his lawyers that he has a fifty-fifty chance of winning his case at trial. Is that really a candid assessment of the risk going forward, or the sort of evasion a physician might make when asked by a client about whether the client will die? It sounds perilously like telling a person there is hope. (There are no databases in the law to permit a practitioner to consult data on potential outcomes.) On a plea, the client faces a handful of years in prison; after trial, the number is far higher.) Shouldn't the lawyer do more than dodge the question with a breezy sort of optimism that likens trial to a game of chance?
The client wants to hear hope, but candor may require a bleak assessment of a grim future. In the medical system evasion of difficult truths often results in wasteful care that actually decreases the quality of life for patients suffering fatal and final illnesses. I suspect in the law there is similar waste: misplaced hope yields extra decades in prison.
Gawande is on the cutting edge of discussions about medical risk, responsibility and quality of life for patients. The law has yet even to begin this discussion in meaningful ways. Instead, we celebrate the law's outliers, lawyers smart enough to pick winners, and good enough to win most cases. (Their losses, when they have them, are rarely discussed.)
I want to meet Dr. Gawande. Better yet, I will be looking for seminars at which physicians speak about counseling patients at the end of life. I suspect trial lawyers can learn a lot from doctors.
Friday, August 20, 2010
Hey, Brother, Can You Spare A Partnership?
I once stumbled upon a description of my dream job in a John Grisham novel. (I don't recall which one, they do tend to look a like from a distance.) A firm rolling with cash had one partner devoted to pro bono work. He was paid handsomely, never had to worry about fees, and was free to dive head first into bewildering complexity without having to cover his overhead. That's the job I want.
The job I have is head of a small firm composed of three full-time lawyers, an of counsel lawyer, paralegals, assistants and an office manager. We don't have institutional clients. What we have is overhead and attitude. It's the attitude that attracts plenty of phone calls and letters; more phone calls and letters, frankly, than we can respond to with ease. The overhead is what keeps me up at night.
So I read with envy the report in this morning's New York Times about young lawyers given year-long paid deferments from big law firms to work on the public interest side. The bar's elite can be paid a stipend of $60,000 or so to stay away from their shop and go to work in a less remunerative area of the law. One young man, Nathan Richardson, worked for an environmental police group; another young lawyer decided to work in a public defender's office. Imagine being paid by big law to do public interest work?
"The rich are different than you and me," F. Scott Fitzgerald once said. That's certainly true in the practice of law. I cannot imagine what it must be like to be well-financed and capable of choosing how to spend your largess. We're more like the little Dutch boy with only so many fingers and a dike leaking in far too many places. How can we remain afloat as the dam threatens to burst?
I spent a day not long ago answering correspondence from folks, mostly prisoners, seeking representation. Some had been abused physically by guards, many had medical issues that were unaddressed by prison officials, some sought counsel about issues relating to their release date. Almost all of them made clear that they were seeking pro bono representation. It was overwhelming. At some level I felt something almost like anger: It seemed a long line of folks had formed consisting of folks who had decided that I was just the guy to give them my services free of charge. I had to turn down these folks with apologies: a tough economy makes it hard to take all the cases we would like to take. But even if I practiced at the Law Offices of Croesus, I couldn't have taken all these cases. There is so much need; so much sorrow.
And then a letter arrived from London, from an international human rights group. A prisoner not far from here is being force-fed against his will. Can we assist? At once, my imagination is engaged. A man in the belly of the beast has lost all, his liberty, his reputation and his autonomy. Now the state seeks to deprive him even of his right to protest the terms of confinement. The state will keep the man alive solely to imprison him. This is shades of the Michael Ross case all over again. He was the death-row inmate who decided to seek no further appeals. He decided that after more than 15 years of fighting he just wanted to die. Frankly, I supported that decision: Who are we to tell a person they must live? "Be careful," a staff member tells me. "This is case is a financial black hole."
But black holes seem to be all I know. This morning another potential client calls. He's been advised by other lawyers that the wrong he seeks to right may be beyond repair. "It's a one in a million chance," he tells me. "That's why I called you." My heart sinks. I wonder if I would recognize a sure winner if it walked in the door? I tell him I cannot do the work for free: he'd need to pay a fee. But already I'm liking his odds. One in a million means that all hope is not lost. I am David, looking for the perfect stone to cast at giants.
All these fights and so little time. Nowhere in legal fiction have I seen the economic reality of running a small firm portrayed. Folks don't just tumble through the door with small fortunes to pay for legal fees. Staff members need to get paid; the lights must be turned on; bills arrive daily. All these fights and so few clients able to pay for them. Every day a new request for pro bono service; every day another David asking for justice against Goliath. I realize now that my it is frustration and not anger that I feel.
The rich do live different kinds of lives. So do partners at big firms. So do associates at those firms. I'm envious. I've made a pet of the wolf who stalks our door. Even so, I am envious. So what do you say ye titans of the megafirms? Can you spare a partnership for a lawyer with a lot of fight and little economic sense?
I already know the answer. I don't expect the phone to ring with your call. Instead, the next caller will no doubt be desperate and broke. He'll need a lawyer. Odds are he won't be calling big law.
The job I have is head of a small firm composed of three full-time lawyers, an of counsel lawyer, paralegals, assistants and an office manager. We don't have institutional clients. What we have is overhead and attitude. It's the attitude that attracts plenty of phone calls and letters; more phone calls and letters, frankly, than we can respond to with ease. The overhead is what keeps me up at night.
So I read with envy the report in this morning's New York Times about young lawyers given year-long paid deferments from big law firms to work on the public interest side. The bar's elite can be paid a stipend of $60,000 or so to stay away from their shop and go to work in a less remunerative area of the law. One young man, Nathan Richardson, worked for an environmental police group; another young lawyer decided to work in a public defender's office. Imagine being paid by big law to do public interest work?
"The rich are different than you and me," F. Scott Fitzgerald once said. That's certainly true in the practice of law. I cannot imagine what it must be like to be well-financed and capable of choosing how to spend your largess. We're more like the little Dutch boy with only so many fingers and a dike leaking in far too many places. How can we remain afloat as the dam threatens to burst?
I spent a day not long ago answering correspondence from folks, mostly prisoners, seeking representation. Some had been abused physically by guards, many had medical issues that were unaddressed by prison officials, some sought counsel about issues relating to their release date. Almost all of them made clear that they were seeking pro bono representation. It was overwhelming. At some level I felt something almost like anger: It seemed a long line of folks had formed consisting of folks who had decided that I was just the guy to give them my services free of charge. I had to turn down these folks with apologies: a tough economy makes it hard to take all the cases we would like to take. But even if I practiced at the Law Offices of Croesus, I couldn't have taken all these cases. There is so much need; so much sorrow.
And then a letter arrived from London, from an international human rights group. A prisoner not far from here is being force-fed against his will. Can we assist? At once, my imagination is engaged. A man in the belly of the beast has lost all, his liberty, his reputation and his autonomy. Now the state seeks to deprive him even of his right to protest the terms of confinement. The state will keep the man alive solely to imprison him. This is shades of the Michael Ross case all over again. He was the death-row inmate who decided to seek no further appeals. He decided that after more than 15 years of fighting he just wanted to die. Frankly, I supported that decision: Who are we to tell a person they must live? "Be careful," a staff member tells me. "This is case is a financial black hole."
But black holes seem to be all I know. This morning another potential client calls. He's been advised by other lawyers that the wrong he seeks to right may be beyond repair. "It's a one in a million chance," he tells me. "That's why I called you." My heart sinks. I wonder if I would recognize a sure winner if it walked in the door? I tell him I cannot do the work for free: he'd need to pay a fee. But already I'm liking his odds. One in a million means that all hope is not lost. I am David, looking for the perfect stone to cast at giants.
All these fights and so little time. Nowhere in legal fiction have I seen the economic reality of running a small firm portrayed. Folks don't just tumble through the door with small fortunes to pay for legal fees. Staff members need to get paid; the lights must be turned on; bills arrive daily. All these fights and so few clients able to pay for them. Every day a new request for pro bono service; every day another David asking for justice against Goliath. I realize now that my it is frustration and not anger that I feel.
The rich do live different kinds of lives. So do partners at big firms. So do associates at those firms. I'm envious. I've made a pet of the wolf who stalks our door. Even so, I am envious. So what do you say ye titans of the megafirms? Can you spare a partnership for a lawyer with a lot of fight and little economic sense?
I already know the answer. I don't expect the phone to ring with your call. Instead, the next caller will no doubt be desperate and broke. He'll need a lawyer. Odds are he won't be calling big law.
Thursday, August 19, 2010
A Good Judge Is Hard To Find
Milford Superior Court Judge Eddie Rodriguez Jr. was in the hot seat the other day. The editorial board of the New Haven Register took aim at him for comments he made while sentencing a man who pled guilty to the possession of child pornography to five years in prison.
"You're being sentenced by the legislature," the judge told him. "Our hands are tied." The judge apparently had reservations about whether the sentence was just.
Why do we permit lawmakers, most of whom would probably wet themselves if they ever darkened the door of an actual courtroom, to belch out mandatory minimum sentences for offenses as though they were passing out government contracts to favored constituents? It's too easy for them to pander to angry voters, especially when it comes to folks stigmatized as sex offenders.
The editorial board of The New Haven Register opined that Rodriguez was a discredit to the bar, further fanning flames sure to come back to haunt the jurist when he stands for reappointment years from now. Great, just great. Now we're going to sentence people according to what editorial writers want?
Charles Rish was sentenced to five years because he possessed child pornography. He had some 1,500 images downloaded on his computer, including some of a six-year-old boy engaged in sex acts with another child. One image was that of a three-year-old. These are revolting images.
But Mr. Rish had apparently persuaded the judge that he had sought treatment and was a low-risk to offend again. The 53-year-old defendant had already been shamed in the community. The judge who knew the case concluded the man was not a predator.
Connecticut has tough new mandatory minimum laws for possession of child pornography. Passed in 2007, An Act Concerning Jessica's Law was passed in a wave of moral panic stirred by the rape and murder of Jessica Lunsford in Florida. Paradoxically, Jessica's father had child pornography in his computer at the time his daughter was abducted; no one charged Mr. Lunsford with being a predator. It would have been obscene to over-react in such a manner: the poor man had been through enough. Why is that if all possessors are predators in the making?
Jessica's abduction, assault and murder feeds the fear of stranger danger, the sense that all of our children are at risk each and every moment of every day. We cannot do enough to feel safe, so we enact new laws, each designed to eliminate more risk. But what, really, has Jessica's murder to do with child pornography?
Empirical evidence suggests that so-called sex offenders have among the lowest recidivism rates of all persons convicted of crimes. There is no evidence to support a "Reefer Madness" sort of theory of sex offenses. What research supports the contention that mere exposure to child pornography leads inevitable to rape and murder? There is none. There is only hysteria.
Lawmakers enacting tough new laws with mandatory minimum sentences hobble judges and the administration of justice. We shouldn't sentence stereotypes. One size does not fit all.
Defendants are "human beings, regardless of the crime they've committed, they're all human beings and they should be told something by the court in terms of why they're being punished. You're depriving a man or a woman of their liberty. ... Sentencing is a very delicate and extremely difficult task for any judge," Rodriguez said in an interview. Amen.
I repeat what I have suggest here before: Anyone wanting to serve as a lawmaker should be required to spend a week or so behind bars, locked up in a cell. Prison is a harsh sanction, and it should be meted out only after a judge has been given the ability to assess whether it is required. Too often lawmakers dole out mandatory sentences as though they are candy. I say make them eat a pound or two of the garbage they call justice. Let them see how it tastes.
Judge Rodriguez is a good man. I only wish he had simply refused to impose the mandatory minimum lawmakers imposed. Let's litigate this issue anew. Why under the separation of powers doctrine under the state constitution are we permitting people who never set foot in a courtroom or read a pre-sentencing report to set what sentences a judge must impose?
Reprinted courtesy of The Connecticut Law Tribune.
"You're being sentenced by the legislature," the judge told him. "Our hands are tied." The judge apparently had reservations about whether the sentence was just.
Why do we permit lawmakers, most of whom would probably wet themselves if they ever darkened the door of an actual courtroom, to belch out mandatory minimum sentences for offenses as though they were passing out government contracts to favored constituents? It's too easy for them to pander to angry voters, especially when it comes to folks stigmatized as sex offenders.
The editorial board of The New Haven Register opined that Rodriguez was a discredit to the bar, further fanning flames sure to come back to haunt the jurist when he stands for reappointment years from now. Great, just great. Now we're going to sentence people according to what editorial writers want?
Charles Rish was sentenced to five years because he possessed child pornography. He had some 1,500 images downloaded on his computer, including some of a six-year-old boy engaged in sex acts with another child. One image was that of a three-year-old. These are revolting images.
But Mr. Rish had apparently persuaded the judge that he had sought treatment and was a low-risk to offend again. The 53-year-old defendant had already been shamed in the community. The judge who knew the case concluded the man was not a predator.
Connecticut has tough new mandatory minimum laws for possession of child pornography. Passed in 2007, An Act Concerning Jessica's Law was passed in a wave of moral panic stirred by the rape and murder of Jessica Lunsford in Florida. Paradoxically, Jessica's father had child pornography in his computer at the time his daughter was abducted; no one charged Mr. Lunsford with being a predator. It would have been obscene to over-react in such a manner: the poor man had been through enough. Why is that if all possessors are predators in the making?
Jessica's abduction, assault and murder feeds the fear of stranger danger, the sense that all of our children are at risk each and every moment of every day. We cannot do enough to feel safe, so we enact new laws, each designed to eliminate more risk. But what, really, has Jessica's murder to do with child pornography?
Empirical evidence suggests that so-called sex offenders have among the lowest recidivism rates of all persons convicted of crimes. There is no evidence to support a "Reefer Madness" sort of theory of sex offenses. What research supports the contention that mere exposure to child pornography leads inevitable to rape and murder? There is none. There is only hysteria.
Lawmakers enacting tough new laws with mandatory minimum sentences hobble judges and the administration of justice. We shouldn't sentence stereotypes. One size does not fit all.
Defendants are "human beings, regardless of the crime they've committed, they're all human beings and they should be told something by the court in terms of why they're being punished. You're depriving a man or a woman of their liberty. ... Sentencing is a very delicate and extremely difficult task for any judge," Rodriguez said in an interview. Amen.
I repeat what I have suggest here before: Anyone wanting to serve as a lawmaker should be required to spend a week or so behind bars, locked up in a cell. Prison is a harsh sanction, and it should be meted out only after a judge has been given the ability to assess whether it is required. Too often lawmakers dole out mandatory sentences as though they are candy. I say make them eat a pound or two of the garbage they call justice. Let them see how it tastes.
Judge Rodriguez is a good man. I only wish he had simply refused to impose the mandatory minimum lawmakers imposed. Let's litigate this issue anew. Why under the separation of powers doctrine under the state constitution are we permitting people who never set foot in a courtroom or read a pre-sentencing report to set what sentences a judge must impose?
Reprinted courtesy of The Connecticut Law Tribune.
Laura And Imus, Sitting In A Crib ...
What's all this fuss about Dr. Laura Schlessinger and, gasp!, the N-word? I confess that I have not followed it closely. It struck me as even less consequential than the Don Imus dust up. So she said "nigger" on the air. That doesn't exactly make her a white supremacist now, does it?
I was sitting at a stop light the other day, windows rolled up, air conditioning on, waiting for a light to change. A car ahead of me and to the right had its windows open. Music was pounding; the beat felt like it echoed right through me. But I couldn't make out all the words. I rarely can with music. It's worse than tone deafness in my case.
But what I could hear neither shocked nor offended me. "Boom, boom, boom.... Yeah, niggah. ... this bitch ... Fuck dat, Niggah.... Yo, Niggah, niggah, niggah." All at once I reached the assumption that Dr. Laura was probably not driving that car. As I eased by I saw the driver: Young, black, proud, and oh-so pleased to share his music with us. Why wasn't he slapping the dashboard silly and calling in a complaint to the NAACP?
Attorney General Eric Holder was right when he said the nation lacks the courage to have a meaningful discussion about race. Instead we posture. We sell music about niggahs, bitches and hos. When young black men listen to it, it is somehow cool, acceptable, a badge of racial pride. When white people listen to it they are wannabes; that's still all right, but it is somehow less authentic than being a gangsta rapper. No race owns the language.
But if some stuffy old white women utters the word, the heavens part. She's a racist. She must apologize. She should be driven from the airwaves for spewing hate, even if it was not hate she was spewing at all.
What amazes is that Dr. Laura isn't letting this controversy role off her expensively clad back. She said something nasty. Folks listened. They were free to tune in or tune out as the case may be. If she regrets using the word, say so and move on. But submitting to an electronic lynching cheapens the discourse, and avoids a chance to engage meaningfully about race. It emboldens bullies.
This evokes memories of Imus on the run. His remarks about the girls' basketball team at Rutgers were far more offensive that Dr. Laura's comments. But even there, what did folks really expect from Imus? He's a high brow shock jock after all.
Dr. Laura says she is leaving the radio to vindicate her First Amendment rights. Huh? You don't win a fight by running, Dr. L. And besides, no state or government is forcing you from the radio. You are running from angry listeners. You are refusing a chance to take a long and hard look at double standards, race and the language of hate. Hang in there, niggah.
So a new nursery rhyme springs to mind:
Don and Laura running like chumps,
Both too scared to take their lumps.
First comes words and then comes hate,
Why are they quick to make an escape?
Grow up, Dr. Laura. Seize the chance to explore a dark side of American life. Race is too often a wound in America. Explore this pain rather than run from it. We're all living in the midst of plenty that is unspoken but felt. Lead a discussion rather than pouting like some privileged cracker.
I was sitting at a stop light the other day, windows rolled up, air conditioning on, waiting for a light to change. A car ahead of me and to the right had its windows open. Music was pounding; the beat felt like it echoed right through me. But I couldn't make out all the words. I rarely can with music. It's worse than tone deafness in my case.
But what I could hear neither shocked nor offended me. "Boom, boom, boom.... Yeah, niggah. ... this bitch ... Fuck dat, Niggah.... Yo, Niggah, niggah, niggah." All at once I reached the assumption that Dr. Laura was probably not driving that car. As I eased by I saw the driver: Young, black, proud, and oh-so pleased to share his music with us. Why wasn't he slapping the dashboard silly and calling in a complaint to the NAACP?
Attorney General Eric Holder was right when he said the nation lacks the courage to have a meaningful discussion about race. Instead we posture. We sell music about niggahs, bitches and hos. When young black men listen to it, it is somehow cool, acceptable, a badge of racial pride. When white people listen to it they are wannabes; that's still all right, but it is somehow less authentic than being a gangsta rapper. No race owns the language.
But if some stuffy old white women utters the word, the heavens part. She's a racist. She must apologize. She should be driven from the airwaves for spewing hate, even if it was not hate she was spewing at all.
What amazes is that Dr. Laura isn't letting this controversy role off her expensively clad back. She said something nasty. Folks listened. They were free to tune in or tune out as the case may be. If she regrets using the word, say so and move on. But submitting to an electronic lynching cheapens the discourse, and avoids a chance to engage meaningfully about race. It emboldens bullies.
This evokes memories of Imus on the run. His remarks about the girls' basketball team at Rutgers were far more offensive that Dr. Laura's comments. But even there, what did folks really expect from Imus? He's a high brow shock jock after all.
Dr. Laura says she is leaving the radio to vindicate her First Amendment rights. Huh? You don't win a fight by running, Dr. L. And besides, no state or government is forcing you from the radio. You are running from angry listeners. You are refusing a chance to take a long and hard look at double standards, race and the language of hate. Hang in there, niggah.
So a new nursery rhyme springs to mind:
Don and Laura running like chumps,
Both too scared to take their lumps.
First comes words and then comes hate,
Why are they quick to make an escape?
Grow up, Dr. Laura. Seize the chance to explore a dark side of American life. Race is too often a wound in America. Explore this pain rather than run from it. We're all living in the midst of plenty that is unspoken but felt. Lead a discussion rather than pouting like some privileged cracker.
Tuesday, August 17, 2010
Blagojevich: Who Holds The Government Accountable?
The United States Government huffed, puffed and blew an elected governor out of office in the State of Illinois. But at the end of the day, all prosecutors have to show for their efforts in the prosecution of Rod Blagojevich is a single count of making a false statement. The jury could not reach a verdict on the remaining 23 counts. Here's to hoping United States District Judge James B. Zagel grants a motion by Blagojevich to acquit him of the sole count of conviction.
I am no fan of Blagojevich. The conversations he reportedly had on tape were ugly. He is a guttersnipe. But he is a politician, after all. He is such stuff as Congressmen and Governors are made.
But I wonder how many lies the government told Blagojevich during the course of its investigation? I wonder how many witnesses were intentionally misled? I wonder how often jurors were kept in the dark about how prosecutions of this sort are made?
Let's begin with fundamentals: It is a federal offense to lie to a government agent performing his duties. But guess what? The United States Supreme Court has stated it is all right for government agents to lie to you. In other words, if you lie to the Government, you face five years in prison; if the Government lies to you, that's business as usual. Why the asymmetry? Shouldn't the Government be held to the same standard as the people it serves?
Just the other day I learned of a prosecution of a man for making a false statement based on the following facts: The FBI thought a man disposed to take bribes. Two agents dressed up and pretended to be organized crime figures. They approached the target and offered him cash to do the wrong thing. The man declined to take the cash. So much for that theory of prosecution.
As the agents left the meeting, they told the man to be sure to deny meeting with them if the feds ever came calling.
Sure enough, two new agents, this time proudly displaying their FBI badge, showed up at the man's house. They asked whether the man had ever met with two men who had offered him a bribe. The man denied the meeting; he lied, in other words. Bingo! Now the fellow is prosecuted for making a false statement to federal agents. There is something inherently sleazy about this.
I don't know the Blagojevich case well enough to know whether similar Government chicanery was used to trip up Blagojevich, or whether the former governor is such a scum bag that he needs no encouragement to lie. But, really now: Twenty-four counts of fraud and claims that he tried to sell a United States Senate seat and all the Government can prove is a lie to federal agents? This is a humiliating defeat for the Government. Period.
We say that our courts are open, but does the public really know about how many cooperation agreements are struck between the Government and witnesses behind closed doors in a judge's chambers, with half-truths then placed on the record in open court?
I've seen men sit in private and have a judge accept their cooperation agreement. Moments after the deal is struck, everyone appears in open court to accept a guilty plea. The client is asked by the same judge who just took the secret cooperation agreement whether anyone has promised him anything to induce him to plead guilty. The man says no, and no one mentions the Government's promise to seek a lesser sentence if the man testifies truthfully against someone else. Are we supposed to be amused by what amounts to judicially sanctioned deceit?
It's far too early for popping champagne corks in the Blagojevich case. The Government can, and most likely will, try him again on the 23-counts on which the jury could not agree. Most likely, the judge will not grant a motion to acquit on the false statement count. But at the very least, sentencing should be deferred on the false statement count until after the next trial in this matter. If Blagojevich is eventually acquitted of all counts, the judge should then send the Government home empty handed, and the Government should be forced to pay Blagojevich's legal bill.
In the meantime, hats off to Sam Adam Jr. It didn't look like he had a prayer from afar: but he did well. He almost succeeded in pulling his client out of the jaws of a lying beast with the audacity to prosecute those who do as the beast does.
P.S. The more I think about this the angrier I get. Here is a practice pointer: Don't bother bringing in a tape recorder to a meeting with a federal official, the feds won't let you record an interview. It is against policy? Question: Why don't you get to protect yourself when they interview you?
I am no fan of Blagojevich. The conversations he reportedly had on tape were ugly. He is a guttersnipe. But he is a politician, after all. He is such stuff as Congressmen and Governors are made.
But I wonder how many lies the government told Blagojevich during the course of its investigation? I wonder how many witnesses were intentionally misled? I wonder how often jurors were kept in the dark about how prosecutions of this sort are made?
Let's begin with fundamentals: It is a federal offense to lie to a government agent performing his duties. But guess what? The United States Supreme Court has stated it is all right for government agents to lie to you. In other words, if you lie to the Government, you face five years in prison; if the Government lies to you, that's business as usual. Why the asymmetry? Shouldn't the Government be held to the same standard as the people it serves?
Just the other day I learned of a prosecution of a man for making a false statement based on the following facts: The FBI thought a man disposed to take bribes. Two agents dressed up and pretended to be organized crime figures. They approached the target and offered him cash to do the wrong thing. The man declined to take the cash. So much for that theory of prosecution.
As the agents left the meeting, they told the man to be sure to deny meeting with them if the feds ever came calling.
Sure enough, two new agents, this time proudly displaying their FBI badge, showed up at the man's house. They asked whether the man had ever met with two men who had offered him a bribe. The man denied the meeting; he lied, in other words. Bingo! Now the fellow is prosecuted for making a false statement to federal agents. There is something inherently sleazy about this.
I don't know the Blagojevich case well enough to know whether similar Government chicanery was used to trip up Blagojevich, or whether the former governor is such a scum bag that he needs no encouragement to lie. But, really now: Twenty-four counts of fraud and claims that he tried to sell a United States Senate seat and all the Government can prove is a lie to federal agents? This is a humiliating defeat for the Government. Period.
We say that our courts are open, but does the public really know about how many cooperation agreements are struck between the Government and witnesses behind closed doors in a judge's chambers, with half-truths then placed on the record in open court?
I've seen men sit in private and have a judge accept their cooperation agreement. Moments after the deal is struck, everyone appears in open court to accept a guilty plea. The client is asked by the same judge who just took the secret cooperation agreement whether anyone has promised him anything to induce him to plead guilty. The man says no, and no one mentions the Government's promise to seek a lesser sentence if the man testifies truthfully against someone else. Are we supposed to be amused by what amounts to judicially sanctioned deceit?
It's far too early for popping champagne corks in the Blagojevich case. The Government can, and most likely will, try him again on the 23-counts on which the jury could not agree. Most likely, the judge will not grant a motion to acquit on the false statement count. But at the very least, sentencing should be deferred on the false statement count until after the next trial in this matter. If Blagojevich is eventually acquitted of all counts, the judge should then send the Government home empty handed, and the Government should be forced to pay Blagojevich's legal bill.
In the meantime, hats off to Sam Adam Jr. It didn't look like he had a prayer from afar: but he did well. He almost succeeded in pulling his client out of the jaws of a lying beast with the audacity to prosecute those who do as the beast does.
P.S. The more I think about this the angrier I get. Here is a practice pointer: Don't bother bringing in a tape recorder to a meeting with a federal official, the feds won't let you record an interview. It is against policy? Question: Why don't you get to protect yourself when they interview you?
Monday, August 16, 2010
Sotomayor, Skilling and Fair Trials: Trial Experience Matters
If you think that trial experience doesn't matter for a Supreme Court justice, I urge you to read Justice Sonya Sotomayor's dissent in Skilling v. United States. Having actually tried cases, albeit as a prosecutor, Sotomayor is not uncritically seduced by the embrace of a cold trial record. She knows better. Not many judges, or, for that matter, justices, do.
The Skilling decision has been the subject of a lot of commentary, but almost all of it is focused on the court's limitation of white collar prosecutions for theft of honest services. Prior to Skilling, almost any act of dishonesty or deceit by an employee, whether in government service or private employment, was enough to land you on the wrong side of federal cross hairs. After Skilling, at least on the surface, only conduct related to bribery or extortion will support such a prosecution: the Court held that to do otherwise would yield a statute so vague as to leave us all guessing as to what and was not a crime; it would also empower prosecutors to pick and choose defendants almost at will, for reasons that often smell of politics. (I say only on the surface because a group of senior lawyers in the Justice Department have formed a work group deciding how best to live in creative harmony with this rule. Expect more creative prosecutions.)
But the honest services claim was only one part of Skilling. The former Enron executive also claimed that he had been deprived a fair trial by the trial court's decision to grant his motion for a change of venue. Among other things, the panel of jurors was so saturated with hostility whipped up by the media, that sitting an impartial jury was impossible, he claimed. Try as it might, the trial court could not, and did not, seat a panel of jurors prepared to decide the case solely on the evidence presented in the courtroom.
Skilling's lawyers asked for lawyer-conducted voir dire as a means of flushing out bias and making a record in support of a change of venue. The trial judge denied the claim, stating that in his experience jurors were more candid with judges than lawyers. Only a federal judge who has never tried a case could buy this specious swill. The conduct of voir dire by federal judges is almost always a farce. Put an authority figure in a black robe on an elevated perch and set him lose on prospective panelists: most would-be jurors are so intimidated they'd agree to just about anything the judge suggests with his questions. This God-in-the-box form of voir dire is meaningless. Almost no one is prepared to challenge the mighty Jehovah when he sits wielding a gavel. Distrustful as folks may be of lawyers, they are at least more inclined to be honest with them.
I recall a case in Bridgeport years ago in which a federal judge permitted lawyer-conduced voir dire. I was the last lawyer in a series of lawyers to speak. The panelists were tired and irritable by the time I was permitted to speak. One of them took a verbal swipe at me early in my questioning. The hostility spread like wildfire. Soon, several wiseacres were challenging me, suggesting my client would be better served by a better and different lawyer. I hung in there, thanking the folks for their honesty. I was afraid of that group, but treated them with respect. The respect was returned a weak or so later when the jury acquitted by client of worker's compensation fraud charges. I would never have learned about the dark underside of that group so long as the judge chirped along, producing polite, almost grade-schoolish answers to his questions. Judge conducted voir dire is, I repeat, a farce.
But few on the Supreme Court saw that in the Skilling case. The glittering intellects sitting on high buy what is printed on the page, and why shouldn't they, since that is all they ever see of a trial court? Writing for the majority, Justice Ginsburg cited the trial court's confidence in its ability to get candor from jurors as though it was an authoritative pronouncement. That is simply not credible, as any trial lawyer with more than a court trial under his or her belt will tell you.
What's worse, the majority was so in love with the cold record in this case and so lacked critical perspective that it accepted the claim that jurors were not biased once they but uttered the pledge that they could be fair. Never mind the halting and confused comments leading to this profession of faith. All was forgiven once a juror but declared she could believe.
Justice Sotomayor was not so easily fooled. I submit that is because she has been an advocate in a courtroom. She knows a thing or two about how jurors react when facing a judge determined to pick a jury as quickly as possible. (It took all of five hours to select the Skilling jury, this in a town ravaged by the Enron bankruptcy.)
Consider the following: Jurors were selected who expressed reservations about whether they could be fair and had intimations that Mr. Skilling might just be guilty before the evidence began. It wasn't enough for a juror to be disqualified as biased if they uttered "shame on him," of Mr. Skilling. One potential juror couldn't honestly say whether he could afford Mr. Skilling the presumption of innocence. That's OK, the trial judge ruled, so long as the juror could ultimately be persuaded to answer yes to a question about whether he would acquit if the the government failed to prove doubt beyond a reasonable doubt. Sotomayor's dissection of the trial judge's voir dire, see page 33 of her dissent, is grim reading. It seems the trial judge was disposed to sit just about anyone with a pulse.
Justice Sotomayor, joined by Justices Stevens and Breyer, would have reversed Mr. Skilling's conviction because she thinks his panel was unfair either in appearance or in fact. I submit her dissent would never have been written if she had never seen with her own two eyes just what goes on in a courtroom. She knows that a record reflects words on page, but that those words are but a reflection of a more nuanced reality. Her dissent is a sobering reminder that the quality of justice meted out by the high court is a reflection of the experience of the justices presiding. A court composed largely of jurists who have never been other than tourists in a courtroom is a court less credible than it ought to be.
We need more trial lawyers on the court. The work of evaluating the fairness of a trial is too important to be left to rank amateurs.
The Skilling decision has been the subject of a lot of commentary, but almost all of it is focused on the court's limitation of white collar prosecutions for theft of honest services. Prior to Skilling, almost any act of dishonesty or deceit by an employee, whether in government service or private employment, was enough to land you on the wrong side of federal cross hairs. After Skilling, at least on the surface, only conduct related to bribery or extortion will support such a prosecution: the Court held that to do otherwise would yield a statute so vague as to leave us all guessing as to what and was not a crime; it would also empower prosecutors to pick and choose defendants almost at will, for reasons that often smell of politics. (I say only on the surface because a group of senior lawyers in the Justice Department have formed a work group deciding how best to live in creative harmony with this rule. Expect more creative prosecutions.)
But the honest services claim was only one part of Skilling. The former Enron executive also claimed that he had been deprived a fair trial by the trial court's decision to grant his motion for a change of venue. Among other things, the panel of jurors was so saturated with hostility whipped up by the media, that sitting an impartial jury was impossible, he claimed. Try as it might, the trial court could not, and did not, seat a panel of jurors prepared to decide the case solely on the evidence presented in the courtroom.
Skilling's lawyers asked for lawyer-conducted voir dire as a means of flushing out bias and making a record in support of a change of venue. The trial judge denied the claim, stating that in his experience jurors were more candid with judges than lawyers. Only a federal judge who has never tried a case could buy this specious swill. The conduct of voir dire by federal judges is almost always a farce. Put an authority figure in a black robe on an elevated perch and set him lose on prospective panelists: most would-be jurors are so intimidated they'd agree to just about anything the judge suggests with his questions. This God-in-the-box form of voir dire is meaningless. Almost no one is prepared to challenge the mighty Jehovah when he sits wielding a gavel. Distrustful as folks may be of lawyers, they are at least more inclined to be honest with them.
I recall a case in Bridgeport years ago in which a federal judge permitted lawyer-conduced voir dire. I was the last lawyer in a series of lawyers to speak. The panelists were tired and irritable by the time I was permitted to speak. One of them took a verbal swipe at me early in my questioning. The hostility spread like wildfire. Soon, several wiseacres were challenging me, suggesting my client would be better served by a better and different lawyer. I hung in there, thanking the folks for their honesty. I was afraid of that group, but treated them with respect. The respect was returned a weak or so later when the jury acquitted by client of worker's compensation fraud charges. I would never have learned about the dark underside of that group so long as the judge chirped along, producing polite, almost grade-schoolish answers to his questions. Judge conducted voir dire is, I repeat, a farce.
But few on the Supreme Court saw that in the Skilling case. The glittering intellects sitting on high buy what is printed on the page, and why shouldn't they, since that is all they ever see of a trial court? Writing for the majority, Justice Ginsburg cited the trial court's confidence in its ability to get candor from jurors as though it was an authoritative pronouncement. That is simply not credible, as any trial lawyer with more than a court trial under his or her belt will tell you.
What's worse, the majority was so in love with the cold record in this case and so lacked critical perspective that it accepted the claim that jurors were not biased once they but uttered the pledge that they could be fair. Never mind the halting and confused comments leading to this profession of faith. All was forgiven once a juror but declared she could believe.
Justice Sotomayor was not so easily fooled. I submit that is because she has been an advocate in a courtroom. She knows a thing or two about how jurors react when facing a judge determined to pick a jury as quickly as possible. (It took all of five hours to select the Skilling jury, this in a town ravaged by the Enron bankruptcy.)
Consider the following: Jurors were selected who expressed reservations about whether they could be fair and had intimations that Mr. Skilling might just be guilty before the evidence began. It wasn't enough for a juror to be disqualified as biased if they uttered "shame on him," of Mr. Skilling. One potential juror couldn't honestly say whether he could afford Mr. Skilling the presumption of innocence. That's OK, the trial judge ruled, so long as the juror could ultimately be persuaded to answer yes to a question about whether he would acquit if the the government failed to prove doubt beyond a reasonable doubt. Sotomayor's dissection of the trial judge's voir dire, see page 33 of her dissent, is grim reading. It seems the trial judge was disposed to sit just about anyone with a pulse.
Justice Sotomayor, joined by Justices Stevens and Breyer, would have reversed Mr. Skilling's conviction because she thinks his panel was unfair either in appearance or in fact. I submit her dissent would never have been written if she had never seen with her own two eyes just what goes on in a courtroom. She knows that a record reflects words on page, but that those words are but a reflection of a more nuanced reality. Her dissent is a sobering reminder that the quality of justice meted out by the high court is a reflection of the experience of the justices presiding. A court composed largely of jurists who have never been other than tourists in a courtroom is a court less credible than it ought to be.
We need more trial lawyers on the court. The work of evaluating the fairness of a trial is too important to be left to rank amateurs.
Sunday, August 15, 2010
Harold Turner: Why Not "Not Guilty" After First Two Trials?
Here's something I have never understood. In a criminal case, the government has the burden of proof. It must prove its case beyond a reasonable doubt. To do that, all jurors must agree. In other words, it takes a unanimous verdict to convict a man. Anything less amounts to a failure on the part of the government. The defendant need not prove anything, we say. So why is it that when the government fails to persuade all of the jurors of a man's guilt that he is not acquitted? Failure is failure, correct?
I was reminded of this gnawing sense of absurdity while reading about the Harold C. Turner case. He was tried three times for threatening three federal judges. Jurors were unable to reach a verdict in the first two trials. But the third time was a charm for the government. It wasn't so charming for Mr. Turner, who now faces up to ten years in federal prison.
Turner was displeased when three judges of the United States Court of Appeals for the Seventh Circuit upheld a ban on handguns. He wrote on a blog page that "[i]f they are allowed to get away with this by surviving, other judges will act the same way." The judges "deserve to be killed," he went on to say. He also posted photos of the judges, together with their office addresses. Of course, the Supreme Court later reversed the Seventh Circuit, overturning the Chicago hand-gun ban at issue.
This is menacing stuff.
The first jury to hear the case rejected the govnerment's case by a vote of nine to three, with the majority voting to acquit Mr. Turner, who argued that he had not issued a directive, but had, instead, merely engaged in critical speech. The government did not call the three judges as witnesses in the first trial. The government failed to prove its case.
At the next trial, the judges, Richard Posner, Frank Easterbrook and William Bauer, did take the stand. But still, jurors could not agree, although it is unclear what the vote was in that case. Call it strike two for the government.
But Mr. Turner's luck ran out at the third trial last week. Jurors returned a quick verdict against the white supremacist. All 12 jurors agreed the government had proven its case.
Threatening prosecutions are unusual when the threat is not conveyed to the target. In this case, it is unclear that three busy judges ever really took the time to read Mr. Turner. Quite frankly, I suspect the tenor and content of his prose did not exactly make the judicial radar in Chicago.
But it did catch the eye of prosecutors, who dug in three times to make their point.
Protecting robust speech is important, and I concede that Mr. Turner's speech is troubling. But is it threatening when a blogger pops off? Or is it more threatening when the government prosecutes a man for engaging in mencacing speech absent any evidence that the speech was uttered in the presence of the intended target?
From time to time folks threaten me. It goes with the turf in a criminal law practice. I don't worry much about the folks who talk smack, especially those who do so by way of blogs or other public venues. The ones you worry about are the silent types. Those are the bullets you'll never see coming.
But really, why wasn't Mr. Turner released after the first trial, the one in which the government failed to prove its case by the requisite standard? Don't tell me the lack of a unanimous verdict resulted in no verdict. If it takes a unanimous jury to yield a not-guilty verdict, then it is the case that we are requiring the defendant to prove something: namely, that he is not guilty. The government's failure ought to be enough to render a not guilty verdict.
I was reminded of this gnawing sense of absurdity while reading about the Harold C. Turner case. He was tried three times for threatening three federal judges. Jurors were unable to reach a verdict in the first two trials. But the third time was a charm for the government. It wasn't so charming for Mr. Turner, who now faces up to ten years in federal prison.
Turner was displeased when three judges of the United States Court of Appeals for the Seventh Circuit upheld a ban on handguns. He wrote on a blog page that "[i]f they are allowed to get away with this by surviving, other judges will act the same way." The judges "deserve to be killed," he went on to say. He also posted photos of the judges, together with their office addresses. Of course, the Supreme Court later reversed the Seventh Circuit, overturning the Chicago hand-gun ban at issue.
This is menacing stuff.
The first jury to hear the case rejected the govnerment's case by a vote of nine to three, with the majority voting to acquit Mr. Turner, who argued that he had not issued a directive, but had, instead, merely engaged in critical speech. The government did not call the three judges as witnesses in the first trial. The government failed to prove its case.
At the next trial, the judges, Richard Posner, Frank Easterbrook and William Bauer, did take the stand. But still, jurors could not agree, although it is unclear what the vote was in that case. Call it strike two for the government.
But Mr. Turner's luck ran out at the third trial last week. Jurors returned a quick verdict against the white supremacist. All 12 jurors agreed the government had proven its case.
Threatening prosecutions are unusual when the threat is not conveyed to the target. In this case, it is unclear that three busy judges ever really took the time to read Mr. Turner. Quite frankly, I suspect the tenor and content of his prose did not exactly make the judicial radar in Chicago.
But it did catch the eye of prosecutors, who dug in three times to make their point.
Protecting robust speech is important, and I concede that Mr. Turner's speech is troubling. But is it threatening when a blogger pops off? Or is it more threatening when the government prosecutes a man for engaging in mencacing speech absent any evidence that the speech was uttered in the presence of the intended target?
From time to time folks threaten me. It goes with the turf in a criminal law practice. I don't worry much about the folks who talk smack, especially those who do so by way of blogs or other public venues. The ones you worry about are the silent types. Those are the bullets you'll never see coming.
But really, why wasn't Mr. Turner released after the first trial, the one in which the government failed to prove its case by the requisite standard? Don't tell me the lack of a unanimous verdict resulted in no verdict. If it takes a unanimous jury to yield a not-guilty verdict, then it is the case that we are requiring the defendant to prove something: namely, that he is not guilty. The government's failure ought to be enough to render a not guilty verdict.
Almost Cut My Hair ...
I swear it almost happen the other day. It really did. I was sauntering into a bookstore when the barbershop nearby caught my eye. "Why not?," I thought. "How long's it been?"
In truth, it's been a good twenty years since I checked into a barbershop. Oh, I get hair cuts every so often. We've reduced it to something of a game in my house. Every four or five years I announce abrubtly that I am ready for a trim. I count to ten. So long as my wife can get to me with a pair of scissors before I am done counting, she can take as much as she likes. Of course, you know what follows. I boast for days that my wife cut off five or six inches but mine is still longer than most anyone I know.
But I was close the other day. Very close. I bought a couple of new suits and some new shirts. I suppose I was contemplating a complete make over. And then I remembered one of my favorite songs. For now, the hair stays.
In truth, it's been a good twenty years since I checked into a barbershop. Oh, I get hair cuts every so often. We've reduced it to something of a game in my house. Every four or five years I announce abrubtly that I am ready for a trim. I count to ten. So long as my wife can get to me with a pair of scissors before I am done counting, she can take as much as she likes. Of course, you know what follows. I boast for days that my wife cut off five or six inches but mine is still longer than most anyone I know.
But I was close the other day. Very close. I bought a couple of new suits and some new shirts. I suppose I was contemplating a complete make over. And then I remembered one of my favorite songs. For now, the hair stays.
Saturday, August 14, 2010
Alvin M. Greene: What Would Be The Harm?
A recent issue of The New Yorker carried an article George Packer that painted an unflattering picture of the United States Senate. "The Empty Chamber," The New Yorker, August 9, 2010. Far from the greatest deliberative body on the planet, the Senate looks more like a geriatric Animal House, with Senators preening before unmanned cameras in empty chambers and rarely engaging in anything liker serious debate.
So I ask you: What would be the harm of electing Alvin M. Greene to the Senate in South Carolina? Greene appears to be a classic no-nothig, do-nothing sort of guy. But is he any different than the folks in the Senate now?
Consider the words of Tom Daschle, the former Senate Majority leader from South Dakota:
"Sometimes, you're dialing for dollars, you get the call, you've got fifteen minutes. [To appear for a vote.] You don't have a clue what's on the floor, your staff is whispering in your ears, your running onto the floor, then you check with your leader -- you double check -- but, just to make triple sure, there's a little sheet of paper on the clerk's table: the leader recommends an aye vote, or a no vote. So you've got all these checks just to make sure you don't screw up sometimes. But, if you're ever pressed, 'Why did you vote that way?' -- you just walk out thinkinh, Oh, my God, I hope nobody asks, because I don't have a clue."
Greene is a 32-year-old political novice who mumbles rather than speaks. He won the Democratic primary for the Senate in June, and is believed by some to have been put up to running by mischief-making Republicans. He will face Senator Jim DeMint, a Republican incumbent in November. Pundits predict slaughter.
Greene's chances grew even dimmer this past week. He now faces two obscenity counts for showing a college coed some pornographic films and trying to accompany her to his room. But, once again, such shenanigans hardly disqualify him from sitting in the Senate.
What would be the harm in voting for Greene? I hope South Carolina voters call the bluff of politicos and send this man to Washington. Just once, I'd like to see someone sit in that chamber who wasn't full of more feces than a sewage treatment center.
What would be the harm of sending Greene to the Senate? It's not as though Solon is expected to arrive there anytime soon. According to packer, the chamber is dominated by a culter where lofty thoughts and generous impulses have no place. Would anyone really notice if Greene were elected?
So I ask you: What would be the harm of electing Alvin M. Greene to the Senate in South Carolina? Greene appears to be a classic no-nothig, do-nothing sort of guy. But is he any different than the folks in the Senate now?
Consider the words of Tom Daschle, the former Senate Majority leader from South Dakota:
"Sometimes, you're dialing for dollars, you get the call, you've got fifteen minutes. [To appear for a vote.] You don't have a clue what's on the floor, your staff is whispering in your ears, your running onto the floor, then you check with your leader -- you double check -- but, just to make triple sure, there's a little sheet of paper on the clerk's table: the leader recommends an aye vote, or a no vote. So you've got all these checks just to make sure you don't screw up sometimes. But, if you're ever pressed, 'Why did you vote that way?' -- you just walk out thinkinh, Oh, my God, I hope nobody asks, because I don't have a clue."
Greene is a 32-year-old political novice who mumbles rather than speaks. He won the Democratic primary for the Senate in June, and is believed by some to have been put up to running by mischief-making Republicans. He will face Senator Jim DeMint, a Republican incumbent in November. Pundits predict slaughter.
Greene's chances grew even dimmer this past week. He now faces two obscenity counts for showing a college coed some pornographic films and trying to accompany her to his room. But, once again, such shenanigans hardly disqualify him from sitting in the Senate.
What would be the harm in voting for Greene? I hope South Carolina voters call the bluff of politicos and send this man to Washington. Just once, I'd like to see someone sit in that chamber who wasn't full of more feces than a sewage treatment center.
What would be the harm of sending Greene to the Senate? It's not as though Solon is expected to arrive there anytime soon. According to packer, the chamber is dominated by a culter where lofty thoughts and generous impulses have no place. Would anyone really notice if Greene were elected?
Second Verse Same As The First?
One of the most dismal experiences a trial lawyer can have is reading a transcript of a case you have already tried. The only thing worse is having to sit through a read back or replay of testimony> I think of myself as fluent, sometimes even eloquent. My transcripts betray me to be a stuttering mess of non-fluencies.
I am preparing now for a special version of this Hell: the retrial of a murder case I tried last September. The jury could not agree on counts of murder as to one victim and attempted murder as to another. So come this September, we will try the case all over again.
I had hoped this week to travel to Omaha, Nebraska to work with a trial consultant who reads this blog and volunteered his time. I generally don't play well with others, but this fellow reads: We started a correspondence that of sorts around the time I noted with glee the publication of C.J. Jung's Red Book. I say you've got to love a guy who tried cases and reads difficult books.
Omaha will have to wait, however. I have two lawyers out of the office for the month of August. I am running from one end of the state trying to put out fires. It's too busy a time to leave.
So I sit, staring at transcripts of my work and looking for ways to improve. (The prosecutor told my partner that the verdict was 11-1 in favor of conviction; I have a lot of improving to do.)
It is a close case; the defense is self-defense. My client, a male, claims he was backed into a corner near steep stairs descending to basement by a drug-crazed woman. He shot her dead and wounded a friend of hers as they argued.
It is hard work, reappraising a trial. The thought of trying the case again fills me with dread. There was anger aplenty in the room, with grieving and bitter family members of the victims present daily. The prosecutor became embittered, too. I did not help matters at all. I sometimes attack when no attack is needed.
Jury selection begins August 30. It will take a couple of weeks to pick the jury, given our state's quirky and entirely wasteful manner of picking jurors by speaking to candidates one at a time out of the presence of all other jurors. Evidence won't begin for at least another month. I have time aplenty to ponder a job half done last trial. This much I know; the retrial will not look like the first trial. Oh, the defense will be the same. But I have an opportunity to do better this time around. I will.
I am preparing now for a special version of this Hell: the retrial of a murder case I tried last September. The jury could not agree on counts of murder as to one victim and attempted murder as to another. So come this September, we will try the case all over again.
I had hoped this week to travel to Omaha, Nebraska to work with a trial consultant who reads this blog and volunteered his time. I generally don't play well with others, but this fellow reads: We started a correspondence that of sorts around the time I noted with glee the publication of C.J. Jung's Red Book. I say you've got to love a guy who tried cases and reads difficult books.
Omaha will have to wait, however. I have two lawyers out of the office for the month of August. I am running from one end of the state trying to put out fires. It's too busy a time to leave.
So I sit, staring at transcripts of my work and looking for ways to improve. (The prosecutor told my partner that the verdict was 11-1 in favor of conviction; I have a lot of improving to do.)
It is a close case; the defense is self-defense. My client, a male, claims he was backed into a corner near steep stairs descending to basement by a drug-crazed woman. He shot her dead and wounded a friend of hers as they argued.
It is hard work, reappraising a trial. The thought of trying the case again fills me with dread. There was anger aplenty in the room, with grieving and bitter family members of the victims present daily. The prosecutor became embittered, too. I did not help matters at all. I sometimes attack when no attack is needed.
Jury selection begins August 30. It will take a couple of weeks to pick the jury, given our state's quirky and entirely wasteful manner of picking jurors by speaking to candidates one at a time out of the presence of all other jurors. Evidence won't begin for at least another month. I have time aplenty to ponder a job half done last trial. This much I know; the retrial will not look like the first trial. Oh, the defense will be the same. But I have an opportunity to do better this time around. I will.
White Collar Warrior: Silverglate and Three Felonies A Day
I have a confession to make: I've always been wary of the white collar criminal defense bar. Real criminal defense lawyers defend those accused of murder, rape and other crimes of violence, right? I mean, wassup with the pinstripe suits and the Grey Poupon sensibilities of those with money to burn? Isn't white collar work for momma's boys and wannabes?
Harvey Silverglate has slapped me silly and forced me to see just how wrong I am. His Three Felonies A Day: How The Feds Target the Innocent, is a tale told from the trenches by a white collar warrior worthy of any courtroom. It may well be that the threat to liberty is greatest in the world of white collar crime, where prosecutors armed with vague laws, investigative grand juries and infinite resources can crush virtually anyone, regardless of whether the person has committed a crime.
Silverglate practices in Boston and writes a column for The Boston Phoenix; he is a sixty-something lawyer and litigator who managed to survive Harvard Law School without losing a taste for street smarts. I've never met him, but his photograph on the dust jacket of the book bears an uncanny resemblance to Robert Fogelnest, former president of the National Association of Criminal Defense Lawyers, and now an expatriate living in Mexico. Fogelnest is a good friend, so I suppose there is a danger that I read too much into Silverglate's feisty prose, but I don't think so.
Economic hard times make populists of all who struggle, and yield the temptation to indulge in a sort of populist dualism, separating the world in good and evil. The current bad guys are Wall Street bankers, those smarmy folks who packaged derivatives, traded them like baseball cards among themselves, exploited the Barnum-like quality in each of us that wants something for nothing, and then crashed the economy. We're enraged, most of us, that these banking bandits pulled this off and still got a free ride from the government. What a country: The rich get bailed out by Government and ordinary people are forced into bankruptcy.
It plays, doesn't it? This neo-populist rage slips easily off of my tongue. Tar and feather the leisure class, I say.
But not so fast. Silverglate warns against this sort of easy anger. It is the sort of thing the prosecutors use to fuel prosecutions of doctors, lawyers, businessmen, salesmen, bankers, virtually everyone who, in this complex and regulated economy of ours, sell goods and services under the watchful eye of the government. Each can be prosecuted on a whim; all of us are criminals when viewed through lenses tilted just so. In the world of white collar crime, mail fraud, wire fraud, obstruction of justice, become fall back crimes prosecutors can allege when all else fails. Many defendants chose to enter pleas rather than fight costly and expensive wars than might well vindicate them but at the expense of bankruptcy.
A friend recommended Three Felonies a Day when he learned I was representing a lawyer in an ongoing federal investigation. I told my friend how terrifying the investigation was. When questions were raised about one topic, I met with the feds. I provided documents that rebutted their suspicions that anything was amiss. They acknowledged that they did not know about the documents I showed them. I assumed that the case would be closed and all would return to normal.
How naive.
You see, the government wants to turn this lawyer into a witness against another lawyer. So they are sparing no expense to try to terrify my client. Federal agents have visited his neighbors, his favorite restaurants, his clients: The agents are behaving like organized crime goons, flashing badges and guns in an effort to scare up some evidence of any kind of wrongdoing that they can dream up. Why? They want my client to flip against someone who is the real target of their ire. There are reputations to be made in high-profile prosecutions, you see. The feds are trying to "climb the ladder," as Silverglate calls it, using my client as a rung. The trouble is, there is nothing for them to seize upon.
But they want their man. So they dog my client, sending almost daily reminders of their ability to root through all the electronic trash they can find: banking records, credit card receipts, old tax returns. They will press until they find something they can use as a club to bludgeon my client. All this with the aid of a secret grand jury, a body that was intended to protect liberty but not serves as the American equivalent of Stalin's secret police.
I've handled white collar cases before, cases involving government employees, bank employees and those alleged to have abused positions of trust. But, frankly, I did not see the political significance of each of these prosecutions clearly enough.
The defense of a crime of violence is challenging. Jurors are terrified by glimpses of a frightening world. Stepping across the divide separating law-abiding jurors and the blood and gore of the event alleged is difficult. Jurors look upon the allegations as they would upon a foreign culture.
But in white collar cases, there is no divide. When the government can accuse anyone of a crime and the crime is simply engaging in business, or taking advice from a professional, we are all potential defendants. The gap between juror and defendant is eliminated. What is evil now is not the blood on the murder weapon. No, what is evil now is the secret hand of a federal agent, lying, intimidating and insinuating his way into our lives. White collar work, Silverglate persuades, is one of the front lines in the battle against abuse of government power.
Silverglate radicalized me. There is no mob quite so dangerous as a self-righteous mob, and populism is the rage of the day. White collar defense is less the work of those who don't want to get blood on their lapels than it is a world in which spreadsheets and ledgers become the new Molotov cocktail. Reading Silverglate made me eager to get into the front lines and trade blows with a government all too ready to take without restraint.
Read Three Felonies a Day.
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