A Compromise Verdict

He shot her in the head a close range. It wasn't murder, a jury said. But neither was it self-defense. No one argued the shooting was accidental. So what was it? Find out here

I've moved blog sites to www.pattisblog.com. I've even installed an RSS feed on the new page. I hope to see you there.

White Collar Ambulance Chasing?

Personal injury lawyers get a bad wrap for using runners to drum up business. Is the white collar bar any different. I have my doubts. Here's why.

I've had an RSS fee installed on my new blog site, located at http://www.pattisblog.com/. I hope you will visit that page.

Will Mickey Sherman Go To Prison?

Today is sentencing day in Mickey Sherman's tax case. Will the judge send him to prison? I say yes, if only for a brief spell. Read on

I've changed blog hosts and can now be found at http://www.pattisblog.com/. I hope to see you there.

A Look At Breyer's Making Our Democracy Work

What's the world look like from the vantage point of a Justice serving on the United States Supreme Court? Stephen Breyer tells us in his simple new volume, Making Our Democracy Work: A Judge's View.

There is a brief review on my new blog site, which you can find at http://www.pattisblog.com/, or by clicking here.

State V. Hayes: A Necessary Act Of Contempt

Game, set and match to Joshua Komisarjesky's lawyer in deciding to break a court order. What could he have been thinking?

Check out the full piece at my new blog site: A Necessary Act Of Contempt.

My new blog site is located at: www.pattisblog.com.

Yes, Virginia, We Kill Women, Too

I won't pretend to be neutral about the death penalty. The state ought not to have the power to kill its citizens. Period. It is too awesome and final a power, and it has historically been used too many times for reasons having nothing to do with justice. The death penalty should be abolished in the United States, as it has been in Europe.

But we still kill, apparently with relish. Texas has put 463 people to death since 1976; Virginia has put 106 to death. No, wait. Make that 107 for Virginia. Last night the state killed a retarded women, shooting 41-year-old Teresa Lewis full of poison for her role in arranging a contract killing of her husband and stepson in on order to collect on a $250,000 insurance policy covering the stepson.

We have put 1,226 people to death in the United States since the death penalty was once again put into use in 1976. That was after Furman v. Georgia struck the penalty down as arbitrary and capricious, administered in a manner that left its imposition as freakish an affair as being struck by lightning. States with a taste for the blood of their own citizens responded with a new and improved death penalty specifying death-eligible offenses and separating determinations of guilt from that of sentencing. But the law is still freakish. Poor people, retarded people, mentally ill people and people of color are most often the victims of state killing. Are men targeted too often?

Only 12 women have been put to death in the past 34 years. Twelve hundred and fourteen men have been ushered off the planet in that time. Some contend that there is a gender bias in the law. We are quick to kill when a stranger turns a violent hand toward another stranger; less quick to kill when mom whacks dad in the heat of passion. Drawing such distinctions is macabre.

Even in cases in which there is no danger of mistaken findings of guilt, where there is no doubt about what the defendant has done, the death penalty still terrifies. It sends a message that the state is somehow an arbiter of good and evil. The state plays no such role. We don't worship at an altar draped in a flag; we debate whether good men can be good citizens; we regard the state as a necessary evil. Permitting a prosecutor or jury to play the role of executioner gives to the state the power to take life; yet the state has no power to create the life it destroys. We all tumble from wombs into a chaos our parents seek to tame as we become socialized to governing norms of conduct; the law is merely one set of norms, defining minimum conditions of decency between strangers. It is dangerous to let the state over-reach into a moral domain regarding the value of life and who should sacrifice the right to life.

Ms. Lewis undoubtedly made cruel and unforgivable decisions. Whether these decisions were informed by her borderline mental retardation is beside the point. We could easily have justified a sentence of life without possibility of parole in her case. That would have sent a message about what conduct we are prepared to tolerate. We could have done this without killing her, and giving the state a taste of our own blood.

Thomas Hobbes in the Leviathan granted the state absolute power. The state had this power because in the absence of such power, no individual would be secure against the violence of what he called the state of nature. Yet even Hobbes realized that giving the state the power to kill was going too far. We create the state to preserve life; we call the norms governing the state and society civilized. Giving the state the power to kill returns us to a condition of savagery.  Hobbes asserted that when the state sought to kill, the target of the state's wrath had no obligation to obey. He was morally justified in meeting lethal force with lethal force.

Hobbes got it right.

Ms. Lewis went gently into the night, defeated in mind and body. I mourn her, as I mourn the death-dealing machinery extant in our states. I wonder whether we are justified in resistance to a power that kills without justification?

Note: I am moving blog sites to http://www.pattisblog.com/. I hope to see you there.

Rage And The Hunting Of Steven Hayes

Herewith a debate of sorts on the morality of the death penalty in the Connecticut case of State v. Steven Hayes. Is killing the killer every justified. Listen to the debate: WPLR Interview on September 23

Check out the new home of this website: www.pattisblog.com

666: It's Time For A Change

I note the irony for what it is worth: On this, the 666th post on this blog site, I am announcing a change to a new blog site: http://www.pattisblog.com/.  I am sure that some will regard this incarnation as welcoming a new anti-Christ into the blawgosphere.

I will post at both locations for several weeks.

Thanks for reading.

Junk Science Serves Junk Justice: We Can Do Better

More than once I have heard a prosecutor in trial urge a judge to admit contested evidence: "The state cannot prove its case without this evidence, your honor," the argument goes. To which I typically respond: "So what?" The rules of evidence require reliable evidence. The trial deck is not supposed to be stacked in favor of conviction.

But the deck is so stacked. And few judges seem prepared to do much about it.

This is rarely so clear as in the case of expert testimony in cases with no victims, or victims who cannot testify. In such cases, the evidence of a crime must be circumstantial: There are no eyewitnesses who can describe the event. Circumstantial evidence, evidence of things seen permitting an inference about things unseen, is, despite television warnings to the contrary, as probative as eyewitness evidence.

But this business of drawing inferences is dangerous. A jury can draw the wrong conclusion and send an innocent man or woman to jail.

Consider the case of so-called "shaken baby syndrome." In such sad and tragic cases, an infant dies. A medical examiner finds burst blood vessels in the infant's eyes, bleeding around the brain, and a swollen brain. This fateful trio is a sure sign that the child came to violence at the hand of a person who had cared for it, the prosecution contends.

Each year, more than a thousand infants die and present with such symptoms. Their mothers, fathers and babysitters are then investigated, and often prosecuted. Hundreds of custodial care givers are now in prison because of the presence of these symptoms.

The sad fact is that many of these folks are innocent. These symptoms can occur in the absence of criminal conduct.

Last year, the American Academy of Pediatrics recommended that the diagnosis of "shaken baby syndrome" no longer be used. In the language of the law, the diagnosis is a result of junk science: flawed methodological premises yielding unreliable conclusions. Uncannily, the pediatricians' findings reflect a general tendency on the scientific community to reject much of the science that is routinely admitted in a courtroom to prove a defendant guilty. The National Academy of Sciences published a comprehensive report recently noting that much of what passes for reliable evidence in a courtroom would not pass muster in a laboratory. Among the areas of evidence suspect by the Academy: bite-mark analysis, firearms evidence and even fingerprint evidence. Only DNA evidence passed rigid methodological muster.

So why are the courts so quick to admit questionable scientific evidence?

I suspect the answer is that the state could not prove many of its cases without junk science. In others words, we sacrifice the presumption of innocence on the altar of something akin to scientific voodoo. We do this because of a concept with which psychologists are familiar: act hunger.

Only stones are unmoved by the sight of another's suffering. Every heart is inspired to act in the face of life's great tragedies. A deep-seated hope harbored by all is that of an orderly universe. We want things to happen for a reason. When things occur that inspire pity or horror, we want to restore the hoped for balance. That requires righting what was done wrong. In the criminal courts, that means assigning blame. Thus, when a child dies, there must be a culprit. In a secular age, we prefer a defendant as many of us have long since retired the Devil as an efficacious moral agent.

But acting merely to relieve an inchoate sense of threat is not justice. We should care as deeply about assigning legal guilt to people who have done nothing wrong. A disciplined criminal justice system would refuse to admit junk science at trial and leave the human tragedies that serve as the fodder for criminal trials unresolved. In other words, good courts reject junk science but frustrate the innate impulse to find a villain in every sorrow. The urge to act all too often yields an over reaction.

The next time a prosecutor intones that evidence is necessary to prove the state's case, I'd like a judge to say, simply: "What has that to do with justice?" Let's face it: sending a person to prison for decades rarely accomplishes anything.
 
Reprinted courtesy of the Connecticut Law Tribune. Beginning today, I will also post on my new website: http://www.pattisblog.com/.

The Sound Of Silence

My new blog site will up and running tomorrow. I am electing to cease taking public comments. I've also decided to avoid the use of statistical tracking packages. Bottom line? Much though I enjoy writing and hope for readers, the online community is a little too quirky to suit me. I'm not willing to bleat to suit the so-called thought leaders, and I am too easily goaded and distracted by snark. Better to put wax in my ears as did Odysseus when sailing in dangerous waters. I concede the field to those who want the turf. I simply want to write. The courtship of strangers is a pastime for others.

I should have learned from my experience as a columnist at The Connecticut Law Tribune, where, for ten years, I have written a weekly column on the law. Over the years, many letters have been written to the editor excoriating me. A board member or two has resigned when the publisher refused to fire me. Even the state's Judicial Branch once cancelled the subscription to the newspaper for all of the state's law libraries. I never really stopped to wonder what all the fuss was when these crises broke. I simply went to court each day and thanked folks for reading when they commented on the pieces for good or for ill. To do otherwise opened the possibility of tumbling into a deep chasm from which I might never emerge.
I see from the poll results to the right that I will lose a few readers. That's all right by me. I've never made the list of top legal blogs by anyone's tally. I am simply unwilling to court the support it takes to do so, and my talent is such that my place is somewhere near the middle of the pack.

I'll post the new site address tomorrow, or the next day. I start trial tomorrow and time will be short for the next few days. Thank you for reading. I hope you will continue to read. I will continue to write, not distracted, about the practice of law. That is, after all, how I got into blogging.

Ciao.

State v. Hayes: What Happens If The Judge Can't Return?

Superior Court Judge John C. Blue called in sick today, causing another delay in the case of State v. Hayes, the triple murder that has captured the morbid fascination of the court-watching civilized world. Although details are sparse about the judge's condition, it's been reported he is the hospital for observation. He was dizzy this past weekend. He is expected back on the job on Wednesday, when the trial is scheduled to resume.

But what would happen if the judge was too sick to return?, you might wonder.

Fortunately, judges don't often fall so ill that they cannot continue presiding over a trial in which they have begun to hear evidence. I've only had a judge fall ill once during a trial, and that was during jury selection in a capital felony case. In that case, the judge had not decided any pretrial motions; he had not presided over the taking of evidence; the only rulings he had been required to make regarded whether a given potential juror was too biased to serve on the panel. In that case, we merely changed judges and went on our merry way.

Things may not be so simple in the Hayes case. That is because of the law of the case doctrine, a little discussed and even less well understood legal theory.

The trial of a case calls upon a judge to rule on matters of procedure, admissibility of evidence and the substantive law governing a dispute. In the course of a trial, especially a capital trial, a judge may be called upon to make scores of rulings. Many of these rulings do not have obvious right or wrong answers: they are calls that are discretionary and are based on a judge's evaluation of a witness or his perspective on how a question is presented. The cumulative weight of these decisions, and how they interact with one another, becomes the law of the case. Thus a ruling on a piece of evidence might be admissible in one case, and not in another. Although the rule of law requires uniformity and transparency, it is a given that judges differ. The law of the case doctrine sets in quick-drying concrete the ad hoc decisions of the trial judge presiding over a given dispute. These discretionary calls are rarely capable of being over-turned on appeal.

Thus, in the Hayes case, Judge Blue has placed his thumb prints on the scales of justice. The parties have developed a working relationship with him, and understand his perspective on close evidentiary rulings. Undoubtedly, there have also been many pre-trial conferences in chambers, well hidden from view, in which the lawyers and the judge have worked out compromises, whether stated or not, on certain issue. A new judge simply won't have that context. Put prosaically, a new judge may well bring a new strike zone to the batter's box well into the game.

A powerful argument can be made that a new judge should be able simply to read the transcript of what has thus far transpired in the case. Such a reading will inform the judge about those decisions and rulings that bind the parties in this particular case. But words on a page require interpretation, and that means a judge to divine their meaning. No two judges will agree on all things. Law is not a hard science.

My hunch is that if Judge Blue is too ill to return, the State will be eager to agree that a new judge can simply read his way into the case. The State is, after all, moving in for a kill here and wants Mr. Hayes' blood sooner rather than later..

But I cannot imagine the defense agreeing to permit a new judge to get behind the plate. This is a life and death struggle for Mr. Hayes. So long as the State cannot ask a jury for permission to stick a lethal needle into Mr. Hayes' arm, Mr. Hayes, and I dare say, humanity, wins. There is no justice in killing.

I suspect Thomas Ullmann, Mr. Hayes's lawyer, will object to the seating of a new judge for the simple reason that if a new judge cannot be seated, it would force a mistrial. The State would then be forced to reconsider its decision to reject Mr. Hayes' offer to plead guilty in exchange for an agreement not to kill him.
Remember, the defense wins so long as Mr. Hayes remains alive.
Of course, that assumes Mr. Ullmann stays well within the conventional box most lawyers inhabit. If he gambles boldly, he can agree to a new judge. There is plenty that suggests this would be a smart choice. First, the jury in this case appears confused: One juror has already begged off, claiming the state's lack of preparation so distracted him he could not follow the case. Other jurors are asking questions, such as how did the surviving victim managed to untie himself just in time to escape a burning building, according to a note sent to the judge. At week's end, the jury sent another note all but begging the state to speed up presentation of the case. Could it be that this jury is being driven to distraction by a poorly tried case?

I've appeared before Judge Blue and know him to be a good and decent man. Here's to hoping he recovers soon and is able to resume his role in this case. But if he can't, I'm betting the case mistries. The law of the case doctrine requires it. This is show trial that deserves an early curtain.

Mandatory Minimum Sentences and the Separation of Powers

I had lunch the other day in Maine with activists seeking to reform the penal system. More and more Maine residents are finding themselves behind bars, and there are seemingly fewer resources each year to ease the burden of caring for inmates. If you divide the gross budget for the Maine penal system by the number of inmates in long-term custody, it costs the state $67,000 per year to keep inmates locked up. That's a lot of lobster.

The folks I talked to were focused on ways of making parole meaningful, a sensible idea. But I kept thinking about the great waste on the receiving end of the system: I learned that Maine is no different than most states. Judges grumble about the tendency of judges to create mandatory minimum sentences that eliminate judicial discretion at the sentencing phase.

State and federal statutes are chock full of crimes for which lawmakers have mandated that an offender must serve a given, minimum prison term. But there are cases when one size does not fit all. However, a judge is not free to disregard a mandatory minimum sentence. At least most judges conceive their job in this manner. Why, I asked at lunch the other day, weren't lawyers challenging mandatory minimums on state constitutional grounds?

I say focus on state law rather than federal. That's because in the federal system the appellate court and Supreme Court bench is so far removed from the reality of practice of law that decisions are doctrinally correct, but often pragmatically insane.

Each state, like the federal government, has a constitution that sets the metes and bounds of government institutions and defines the appropriate powers within each branch of government. The states are free to experiment with the police power and with how they organize their governments. Indeed, federal Supreme Court decisions often look to the states for guidance on open questions of federal law: how have the states interpreted and dealt with an issue that is before the Court?

Here's the nub of an argument about why mandatory minimums violate the separation of powers:

While it is the domain of the legislature to define crimes by way of legislation, it is the function of the courts to enter judgments and impose sentences. Among the factors a sentencing judge must consider when imposing sentence are the nature of the crime and the character of the defendant. Criminal jurisprudence suggests that judges consider four general factors when imposing sentence: the need to deter the individual defendant from breaking the law again; the need to deter others situated similarly to the defendant; the need to rehabilitate the defendant for his eventual return to society; and, punishment.

Certainly lawmakers have a role on weighing the severity of an offense, and nothing should prevent a legislature from specifying a mandatory minimum sentence it thinks appropriate in the typical case. But this mandatory minimum should serve as something other than an absolute that must be imposed in all cases. The court should be free to exercise its judicial function in assessing the character of the defendant, the extent of individual deterrence necessary and the goals of rehabilitation. It is often the case, especially in such cases as statutory rape, that there is no need for rehabilitation and the mere fact of an arrest is punishment enough. Yet often these defendants are whisked off to prison to serve mandatory sentences that no one really believes are fair and just.

Transform mandatory minimum sentences into rebuttable presumptions, and this problem disappears.

A rebuttable presumption is really nothing more than a point of departure. It operates in the law in such a way as to say: all things being equal, the presumption applies. However, the presumption need not apply in all cases. A person who thinks it should not apply can try to rebut it with evidence or argument. Thus, a five year mandatory minimum sentence in place as a rebuttable presumption would be the required sentence unless a judge concluded that the sentence was inappropriate.

Rebuttable presumptions honor the legislative policy of expressing lawmakers' sense of the severity of a crime and the deterrent and punishment required to send a message about what is and is not tolerated in a given community. However, rather than being an inflexible rule unreasonably applied, a presumption permits a judge to make case-specific rulings about why the general rule does not fit a particular case.

It seems to me that the climate is right to experiment with challenges to mandatory minimums on state constitutional grounds. State court judges groan privately about blind laws requiring unjust results. I say present these very judges with the chance to reclaim the dignity of the bench. It should take no revolution in judicial thinking or attitude to come to the realization that no man or woman can be justly or fairly sentences to a term of imprisonment by lawmakers unfamiliar with the defendant or his case. Mandatory minimums require just that. Justice should be blind, but there is no reason it should be dumb, too.

The Orchid and The Cowboy

I've been luckier than I deserve in my legal career to attract the mentorship of some great lawyers. John R. Williams on New Haven broke me in, teaching me all he knew about civil rights litigation and criminal defense. Gerry Spence shared generously of his insight into stories and the psyche. And F. Lee Bailey has taught me a healthy awe of common facts. But I am feeling as though it is time to pick up my bed and walk; to see how far I can go on my own two feet.

I've just returned from a long weekend in Maine, where Bailey was once again generous beyond my merit with his time and talent. We spent a good deal of time trying to work the kinks out of a criminal case I find troubling. Bailey was as Bailey always has been: incisive in an almost brutal manner. He pushes hard and is candid with his disdain for the artless question or lazy response. Bailey's self-confidence is brash; his mind is like a meat cleaver, slamming away at loose joints.

Spence is quite different. He displays no confidence. Whereas Bailey pushes, Spence beckons. My sense is that if on the dock at Heaven's gate, Bailey would spit into the eye of St. Peter demanding the front of the line. Spence, by contrast, would hang back, eyes down cast and tear-filled. Spence has as great an appreciation of facts, but he works harder than anyone I know to root facts into a pattern that summons a helping response.

I'd like to see a trial pitting Spence versus Bailey. Their styles could not be more different. Indeed, so different are they that I cannot imagine them as co-counsel in a case. It is more than a competition of alpha males for the position of top dog. They simply radiate a different energy: Bailey is an intellectual centrifuge, pushing all boundaries to their limit; Spence is centripetal, drawing all to himself. I resisted Spence's pull to the point of alienating him, a fact I accept with regret.

The differences between the two men are reflected in their paradoxical surroundings. Bailey's office is a place of clean lines, with everything in its place. Orchids decorated the place this past weekend; simple elegance standing watch as a mind went about the brutal work of open heart surgery without the use of anesthesia. Spence seems most comfortable on his ranch, a place of elemental and therefore brutal natural energy, yet his is a gentle intensity. Each man seems to surround himself with outward trappings holding into relief their defining characteristic.

On the long drive back from Maine, Bailey's sharp words rang in my ears. I spent long hours considering what makes Bailey a great lawyer in a manner altogether different than the form of Spence's excellence. I catalogued what I have learned from each and worried as I always do that I cannot measure up the standards of the men I admire, even as I fear them.

But then I realized the I had been given a great gift, the gift of their time freely given. As I drove I tried simply to accept these gifts without worrying about whether I could use them well, or even at all. Both men are legends in American law, and both are aging. I am lucky to have gotten to know each. But now the challenge is to take what they have taught and make something of it. It makes me look forward to the next trial: these men have survived much and done much, so much more than I have or most likely ever will.

I admire great trial lawyers. There are so few of them any more. Amid the clatter of lawyers pushing and shoving to show what they know, few have something to teach. That was clear to me as I drove, as clear as the road ahead.

Approaching Reality In The "Show Me" State

I am not yet prepared to say I want to live in Missouri, but I sure might prefer practicing law there. That's because in Missouri, judges now are considering the cost of incarcerating a defendant. This morning's New York Times reports that judges now consult a statewide database to estimate the economic cost of the various sentencing options for a defendant convicted of a crime.

According to the Times, a judge might learn that imprisoning a man convicted of a endangering the welfare of a child for three years would cost the state $37,000, a number that seems unrealistically low as the average cost to imprison a man is $30,000 per year in my home state, Connecticut. Putting the man on probation for the same period might cost only $6,770.

Shouldn't judges have this kind of information?

We intone in somber tones at sentencing that a defendant must take responsibility for his or her actions. Yet the criminal justice is too often schizophrenic: Lawmakers define crimes and mandate sentences without stepping foot in a courtroom or meeting an actual defendant; judges follow one-size-fits-all rules with a sickening sense that something less than justice is done. Prosecutors defend their charging decisions by noting that they are obliged to fit the vagaries of our conduct into the boxes created by others: they are just doing their job. And all players pass the costs of this along to taxpayers, who often as not merely want blood and vengeance because they've been whipped into a moral frenzy by media intent on telling the raciest and most shocking stories it can find.

Throughout this maddening process, no one really counts the cost.

Missouri is taking a step in the right direction, but it's new cost-based sentencing policy doesn't go far enough. Why not let jurors know the cost of a year in prison and the prison time to which a defendant is exposed if convicted? Hiding these larger truths from jurors prevents them making a reasoned moral response to the acts they are considering. Sure, someone might have broken the law, but does the community of those who will actually pay the cost of incarceration think the prosecution is worth the expense?

Critics of the Missouri plan think the state has not gone far enough. The cost-based model places too great an emphasis on mere economic cost; it does not count the social cost of failing to mete out significant punishment. What about the cost to victims of failing to prosecute with vigor? To that later argument I have but two words: William Petit. He is the surviving victim of a horrific home invasion in Cheshire, Connecticut, that left his wife and two daughters dead. The defendants have offered to plead guilty, but Dr. Petit, a physician, wants them dead. So the state seeks death at a cost many times that of simply incarcerating the men for the rest of their lives. I say let the men plead; if Dr. Petit still wants a public trial to show case his sorrow then let him sue civilly. No point, you say? The men are judgment proof? You've proven my point: Why is Connecticut bank-rolling this wasteful psychodrama? There is a reason Dr. Petit has the services of a public relations firm: he needs to keep us whipped up enough to do his killing for him.

I am in favor of a broad calculation of the social utility of punishment. Among those costs should be an assessment of the impact on the imprisoned person's family: the children left behind, the home-foreclosed upon, the spouse who is punished every bit as much as the person locked away. These folks are victims, too.

The United States imprisons a larger percentage of its population and for longer terms of imprisonment than any other Western democracy. We're doing something wrong here in the land of the free. A good way to fight over-criminalization is with a checkbook. Let the fact finders in the criminal justice systems -- juries at the time a decision of guilt or innocence is made, and judges at the time of sentencing -- know the cost of what they are doing. Odds are when these folks realize that they're wasting not just the lives of strangers but their own money, there will be fewer prosecutions and shorter sentences. I suspect we won't notice any great change in the quality of our lives when that happens.

Something Different ...

I had dinner tonight with a client and his daughter. The client faces great trouble. His daughter loves him with a heart bursting with pride. The pain of allegations without foundation weighs heavily on the client. Finding words to encourage him is hard. Tonight his daughter surprised us both by reading the following words of Mother Teresa. Somehow the words fought their way past my inbred cynicism and inspired hope.

"People are often unreasonable, illogical and self-centered;
Forgive them anyway.

"If you are kind, people may accuse you of selfish, ulterior motives;
Be kind anyway.

"If you are successful, you will win some false friends and some true enemies;
Succeed anyway.

"If you spend years building, someone could destroy overnight;
Build anyway.

"If you find security and happiness, they may be jealous;
Be happy anyway.

"The good you do today, people will often forget tomorrow;
Do good anyway.

"Give the world the best you have, and it may never be enough;
Give the world the best you've got anyway.

"You see, in the final analysis, it is between you and your God;
It was never between you and them anyway."

Thanks for much-needed words of encouragement, A., in a time of great stress in a difficult case,

Programming Note

I will be switching to a new service for publication of this blog in the next couple of days. Among the questions on my mind as I make ready for the switch is whether the comments section to the blog serves any real purpose.

I am aware of the "engage" theory of blogging: encourage comments, comment on the comments, and engage readers in a running dialogue. You can really make your site visits spike if you can get the commenters to engage with one another. That's one theory of blog use.

But I've noticed in the past week or so on these pages a nastiness to it all that I don't care to share. Readers are attacking one another, calling into question not just one another's point of view, but one another's mental health and integrity as well. I don't feel the need to facilitate that. In recent days, I deleted several comments and have refused to post a bunch more from the authors involved. This page is no poorer for the absence.

And from California came a note questioning my own integrity. I did not run a comment critical of me. The writer wrote back in sarcasm asking whether I'd publish a note gushing in praise about me. She raises a good point: It is easier to run the nice comments than the comments that poke at me. Of course, I'd rather have glowing comments, who wouldn't? But the desire, even the need, is a weakness, I suspect.

Engagement with commenters is not something I do well. There's too little time in the day to please all, and some never get enough. And then there is the school of Internet engagement that declares victory simply by repetition: Stick a needle in my eye. Beyond the first ouch, there's not much to say other than I am grateful to have such faithful and careful readers: That I have inspired you to care is a power that I have sought. But I also know that giving me your power reflects the same weakness in you that makes me crave the praise of strangers.

Engagement is a trap for the unwary, and a snare for those pressed for time. My law practice takes me to court most days. I prefer writing about that. I don't have the time or inclination to suit those looking for validation from this page.

So the question on my mind is whether to enable the new page to receive comments at all. I can see the pros and cons well. Everyone likes seeing their name in print; and even the anonymous writer, or the writer posting under a pseudonym, can take pleasure in the sting she imagines her words will cause. There is even a species of writer who seeks to build readership by commenting on what others are doing on line. On the theory that any attention is good attention -- is there no such thing as a bad byte? -- comments are good.

But life is short. The care and feeding of readers is much like living on a farm: the various readers must be fed, cared for, and made to feel loved. I am afraid I am not loving enough to succeed in that and meet the needs of those who pay the bills.

I've posted a poll to the right of this post for your views. I am not promising to live by the poll results. But I am interested in what those few who read this page think. As always, you can find me at my private email: napatty1@aol.com.

New Haven Miscellany: State v. Hayes

I passed through New Haven mid-day yesterday after a quick pre-trial in New London in a child sex case.  My hope was to poke my head in on the trial of State v. Hayes to see whether the atmosphere in the room was as surreal as press accounts suggested.

It was just after noon, and there were television trucks lining the street in front of the courthouse. As I crossed the street to enter the building, I noticed more food vendors than usual. It seems everyone wants a piece of the action.

"Joe," I will call him, had his hot dog cart almost on the steps leading into 121 Elm Street. I had never seen his cart so close. He must have been violating some municipal ordinance or other.

"How's business?," I asked.

"It was fantastic two days ago," he beamed. "But the wind really blew yesterday," he complained. "Business was off." But he looked hopeful, even determined, to sell as many hot dogs as he could to those assembled for the greatest show in Connecticut this week, the show trial of Steven Hayes.

The ground floor of the courthouse was more quiet that I expected.

"Not the crush I expected," I told a weary marshal as I pranced through the metal detector.

"Oh, oh," he said. "Just wait until the lunch break. It's a mob scene."

On the elevator ride up I asked a courthouse regular what was new. He's a lawyer with many years at the bar.

"This place is a freak show," he said. "A complete waste of time. The state should take the guilty plea and knock off the charade."

Folks milled around the sixth floor of the court. A guard stood behind a separate metal detector at the entrance to the courtroom. There were no seats. There was a line.

"I'm from CBS in New York," a beefy man intoned. "Can I swap one of the CBS seats with a colleague?'

The answer was no. Once in you stay in. No valet service or seat swapping permitted. I wasn't going to wait on line to watch a case that had already driven one juror away in distracted despair.

That afternoon I spoke to a member of the very office prosecuting Hayes. This soul, whose identity I shall protect, seemed wearied by the charade as well. "We've got sixteen other murder cases to try here," he/she said. The Hayes case was creating a log jam. I could hear weariness in the voice of a person who'd seen too much sorrow. When I said the courthouse really didn't need a show trial and suggested that if the Petit family really wanted public validation of its sorrow it could sue civilly, as had Ron Goldman in the O.J. Simpson case, my colleague registered a silent assent.

Next week jurors reassemble for more evidence and more psychodrama. But there's little justice to be had in the courtroom. Trying to kill a man who wants to plead guilty but is compelled as a matter of law to fight the charges is a farce. Almost as absurd an act as trying to convince 12 jurors that if they kill a killer the world will somehow be a better place for the survivors.

Updated Trench Menus, Tweeter and an Aborted Twittergate

Do real lawyers engage in all the tomfoolery associated with social media? The answer is yes. I am a real lawyer, and I blog and I Tweet. I also think that there should be a broader public understanding about what trial lawyers do. Hence, I write about my work. No crime there, I hope.

I am a little ambivalent about it all. And I have from time to time stopped writing. One thing that makes me reconsider the utility of all this is the extent to which the social media becomes, in an some almost Hegelian sense, conscious of itself. I enjoy reading and writing about experiences in the law; writing about experiences in social media interests me not at all. I never attended my senior prom, my high school graduation, or, for that matter, most of my senior year. I'm not good at playing in the pack or coloring within lines.

But I did notice the other day that a decision of mine to start something called a Trench Menu on Twitter has, of all things, become controversial. Others have begun to post their own. Some new pressure to conform is afoot, drawing the naive into the orbit of things beyond their ken. Huh?

First the great marvel of social media: With all the wealth of material out there to read, the age-old conflict between charisma and orthodoxy could not, I suppose, help but to arise. Put ten people in a room, and suddenly there is a right and a wrong way to do something. The folks with the votes are doing it right, whatever it is. In social media land that means there is approval and disapproval to be won. It turns out the Trench Menu has earned the disapproval of some.  I can live with that.

I generally don't read what doesn't interest me. If a topic engages me, I work the topic. When I am oriented and satisfied, I move on. The great joy of the Internet is that there is a world of communicative possibilities forever at my fingertips. I am rarely bored, and if I find myself bored, the fault is my own. This is a peripatetic universe in the best sense of the term.

So what is the fuss about the Trench Menu?

I am adamant that there are not enough trial lawyers as judges. There are none on the Supreme Court. Every time a nomination to the court arises, I go into a funk about the injustice of it all, and write about why the court would be a better place with trial lawyers on it. Another writer has dubbed this the Trench Lawyer Movement. I like the sound of that. Trial lawyers of the world unite! We have nothing to lose but the courts!

So I report daily from the trenches about what I am doing. What kind of case am I appearing in?; am I in trial?, or engaged in trial prep? The "Tweeting" is inoffensive, or so I had hoped, as it reflects fewer than 140  characters. Others have begun to post trench menus of their own, reporting on their days in court. Slowly a sense of common purpose arises among lawyers with similar vocations. If trench menus help trial lawyers find one another and communicate, all the better. At least I think so. Or, to put it another way, beware the asshat masquerading as ethicist.

So there you have the genesis of trench menus. The whole shebang may be a waste of time. It certainly is a form of marketing in that it alerts other to what I am doing. But I am proud of my vocation as a trial lawyer, and will pit my skills against any lawyer alive. It's my avocation writing on social media sites that gives me misgivings.

NOTE:  I received an email today accusing me of violating the attorney-client privilege in a post on Tweeter. The writer had seen the post recast on another blogger's page, a blogger whose professional ethics I had questioned years earlier for insisting on a retainer agreement that notified the client that the lawyer would not work with the client to turn evidence against another. If the client did so, the lawyer reserved the right to withdraw, and the fee was nonrefundable. Revenge is best eaten cold. O

Now I am accused of betraying client secrets. How? In a Tweeter post under the Trench Menu heading, I said I was attending court on behalf of three clients in child sex cases. "All attracted to children," I said. From this it is concluded that I betrayed a client trust, revealed confidential information and otherwise undermined my client's interests. These are serious charges. Another writer sent me a comment reproving me and asking me to acknowledge my error as good instruction for others.

Of course, the simple answer is that the post betrays no confidence. It recites the type of cases and then summarizes the motive the state believed inspired the case. Of course, 140 characters did not spell out the nuances, and readers can be forgiven for drawing unfavorable inferences.

I have removed the post from Tweeter as it is apparently offensive to the weak-minded, but Mark Bennett has posted it in perpetuity as a service to the bar and public.

I've learned better than to waste time on internecine smugness contests on the web. As I said above, I am interested in the law, not the blawgosphere's efforts to become a self-conscious entity with movable parts responding in unison to distant imperatives.

So rather than engage in another link-building piece of naval gazing, I will submit the issue Bennett raised to my local Grievance Committee, the body that polices lawyers. I will publish the results of the complaint here. If I am wrong, I will admit it. But my sense is that Bennett's post is just plain stupid; I suspect he does better with his clients in a court of law. At least I hope he does.

FINAL UPDATE:

Chief Disciplinary Counsel Mark DuBois regards the issue I submitted on behalf of the Twittergate Committee, composed of a few bloggers who felt strongly about the controversy mentioned above, as frivolous, suggesting that both I and Mark Bennett have too much time on our hands. Case closed. No ethics violation, not even probable cause to believe there was one.

That ends the matter for me. But I am sure you can find continued commentary on it elsewhere.

Lah-Dee-Dah and the Rule of Law

If you have heard enough about the show-trial taking place in New Haven regarding the Cheshire home invasion, you might be tempted to skip this column. But I ask you to hang in for a paragraph or two. I’d like to talk about the administration of justice in Connecticut courtrooms. This trial, unnecessary as it is given the defendants’ willingness to plead guilty, teaches much.

            Lesson number one: Our manner of picking jurors is an expensive joke. Day two of the Hayes trial proved it.

            Thomas Ullmann, lead counsel for Mr. Hayes, is regarded by most as the state’s most painstaking practitioner of individual sequestered voir dire. In a routine case involving less eye-popping allegations than the Cheshire case presents, he is known to take about an hour questioning each witness. Add additional time for the bizarre practice known as death-qualifying a jury, and I suspect Tommy’s voir dire is even longer. Purists defend the practice of questioning each juror outside the presence of all others as the best means of assuring a fair and impartial jury.

            Well, the system failed. On day two of evidence, the day after the parties gave opening statements, a juror begged off the panel. He didn’t think much of the state’s case. It was poorly prepared, disjointed, hard to follow. Judge Blue, concerned lest the man’s obvious discomfort and displeasure with the bungling efforts of the state to convict a man whose lawyer had already told jurors was guilty of murder, tossed the panelist over the state’s objection. Expect to hear more about that on appeal: It’s not enough to seat of jurors prepared to kill? We must now make sure that jurors think well of the state?

            Lah-dee-dah, Diane Keaton once famously said. Why do I see those very sentiments flow so easily from the lips of trial court Judge John C. Blue?

            Let’s face it folks: Voir dire ailed in this instance. I did not see the juror, but I cannot escape the conclusion that he was a lingering nut job. If Ullmann saw it, he banked on this fellow for a mistrial. But how did the state miss this?

            The real answer is that neither side most likely realized the man was a smoldering volcano ready to erupt. Talking to him for upwards of an hour during voir dire didn’t detect it.

            I will say again what I have said here often: Individual sequestered voir dire is a waste of time. The quality of juries selected in state court is not better than the quality selected in federal court by the group method. Our state courts have long delays because it I almost always the case that it takes longer to pick a jury that to try the case. Lawmakers need to address that.

            And what of Twitter in the courts? I was sitting in a courtroom in Stamford not long ago where I was told I could not read the display on my cell phone while court was in session. Yet in New Haven, where the show is the thing, there are so many people banging away on keyboards that at one point the jury reported problems hearing soft-spoken witnesses.

            Why the clacking? Reporters are sending instant messages via Twitter. They stare at the surviving victim and report such gems as: “Dr. Petit places his had to his head” as witnesses testify. Why such tolerance of this carnival-like behavior in this case. Do special rules apply when the victims are privileged?

            The New Haven trial is troubling. The crime was, to be sure, horrific. The proof is overwhelming. Yet the legal proceedings have the feel of a psychodrama. We have a separate courtroom for the victims’ family to use to gather. The media lavishes attention on every move of the survivor. Even the judge lost his bearings one day, informing jurors they could not talk about the case, but they could hug one another.

            This maudlin show trial was unnecessary. The defendants offered to plead. But the state wants to kill them. We don’t permit men to submit to death. That would be obscene. So to make ourselves feel better we engage in a show trial and then make special rules to handle it.

            Justice is mocked, but people feel good. Kumbaya, anyone? 


Reprinted courtesy of the Connecticut Law Tribune.

Ito Alert: "Tweaking" A Jury In New Haven--

I did not need to attend the O.J. Simpson trial in Los Angeles to get a sense of the proceeding's carnival-like atmosphere. The press conveyed what went on all too well. It soon became apparent for all the world to see that the trial judge presiding over that case, Lance Ito, was enjoying the show as much as anyone. Indeed, much of the disorder that pervaded that trial was a result of Ito's falling in love with the press, and the attention his case was receiving. Trial judges need to work hard to keep the decorum of a courtroom under control. A judge has the power to set the tone of a case. The subtle messages sent from the bench influence all that takes place in a room.

I worry that the "Ito effect," the subtle but perceptible effect of suddenly being made a celebrity for merely doing one's job, is beginning to corrode the atmosphere in the trial of Steven Hayes, which will enter its fourth day of evidence today.

New Haven Superior Court Judge John C Blue has his hands full. When he takes the bench each morning, he sits in full view of the 120 or so people packed into his courtroom. To his far left sit the jurors. Directly in front of the jurors sits the prosecution to team, and to the prosecution's left sits a much-hated defendant, Steven Hayes, and his two public defenders. In the public gallery sits Dr. William Petit, a man savagely beaten by Mr. Hayes and another man, who somehow survived an ordeal that left his wife and daughters sexually assaulted and murdered. Dr. Petit sits with family, friends and supporters. The courtroom is also filled with press: there are sketch artists, television reporters, print reporters, enterprising authors hoping for a quick book and television rights. I doubt, somehow, that anyone sits in support of Mr. Hayes.

Unlike the O.J. case, this trial does not present the specter of lawyers running roughshod over the judge. The defense lawyers are two senior public defenders, Patrick Culligan and Thomas Ullmann, with capital experience and solid credentials. Neither are the sort to play to the press during trial. The state is represented by Michael Dearington, a laconic and almost diffident trial lawyer whose greatest enemy is the sense of scorn he cannot help but to bring to the trial of any case, and Gary Nicoholson, Dearington's quiet, self-effacing understudy. All are career state employees with pensions already earned and available: none are hawking this case for headlines to build practices in a bad economy. (Stay tuned for the trial of the co-defendant in this case set for next year. One of the lawyers in that case claims to be the very military lawyer Tom Cruise portrayed in the film A Few Good Men, a questionable claim given that the role film played is reported to be a composite of the work of several lawyers. Expect some hot dogging at that trial; the lawyer already features his supporting role as second chair at trial on his web page.)

Judge Blue is a man of quirky intellect. A former public defender, he has been on the bench for 21 years. He is a loner who would rather take the bus to work each day than drive, the better to avoid wasting time. A self-styled intellectual, he has from time to time composed opinions in verse, and is given to literary and historic allusion: expect names to be dropped. The world is a pop quiz waiting to be taken. A Stanford law school graduate, one almost senses a bemused sense of regret when dealing with him: "All this talent, and this is as far as I have traveled?" Blue is a loner, who sometimes hums when he walks in a distracted sort of way, or is that humming the sounds of bees beneath his bonnet? He's no Lance Ito, that much is sure.

But Like Ito, Blue shares now a spotlight that can unhinge an intellect used to the solitary pleasures of the study. Sketch artists compose pictures of him. His courtroom is a rolling press conference. The sympathy of the world goes out to Dr. Petit, whose every move and gesture is reported on Twitter by the reporters assembled. "Dr. Petit placed a hand to his head as the detective described, ..."  Or, "a hand was placed on Dr. Petit's shoulder when ..." It has already been reported that the clicking of keyboards is making it hard for jurors to hear the proceedings. Question: Is all the twittering, or "tweaking" as the judge quaintly, and with perhaps a little too cute a curtsy toward Victorian mores, referred to the practice really necessary?  The courtroom stands in danger of becoming a forensic fishbowl, and it is beginning to smell just as funky as O.J.'s courtroom. Beware, Judge Blue, the seduction of celebrity status.

Consider yesterday's drama. In the wake of Tuesday's startling decision by one juror to leave the trial because the state was so disorganized and poorly prepared that the man could not follow the case, the state regrouped. It offered into evidence disturbing photographs of the decedents in this case, Dr. Petit's wife and children. The introduction of such photos is often a disputed issue at trial. When defendants argue that they are unnecessary and potentially inflammatory, the state typically argues gruesome photos are needed to show the intentional character of the wounds sustained. The evidence is admitted even when, as here, intent is not argued. These photos must shock to transform 12 ordinary people into paid assassins working at the rate of $50 per day.



But yesterday before the horrid photos were displayed, the judge warned folks in the gallery of what was to come. The judge told jurors to prepare themselves, beating a steady drum roll for the state, and then admonished them not to talk about the case, but told them that hugging one another was all right. This solicitude is right on the line separating umpire from batter: The state could not have asked for a better scene setting device than this. Forget yesterday's embarrassing blunders: the judge is here today to help.

The press debated on Twitter whether to look or not, with at least one reporter wondering whether she'd be fired if she refused to behold the horror of it all. Reading accounts of this made it sound like the courtroom had become less a forum for dispassionate justice than some sort of support group. Judge Blue is on the cusp of losing control of his courtroom, it appears, and of succumbing to the pervasive sense of well-orchestrated outrage fanned and fostered by those who want Mr. Hayes dead.

Mr. Hayes depends on this trial and the court for a fair trial. That means a trial devoid of unnecessary passion and prejudice. Of necessity, that requires a firm hand on the bench. Dr. Petit has testified and is permitted to remain in the room with his family as a spectator, not a party to these proceedings, which pit the State of Connecticut against Steven Hayes. The press should not be permitted to transform the proceedings into a pity party: feeding our insatiable appetite for voyeurism can transform the energy level in the room to that resembling the line outside a freak show tent. Inviting jurors to bond against the horror of inflammatory images only encourages then to unite against Mr. Hayes. All these vectors, Judge Blue, are playthings for the prosecution, not a judge.

It is too soon to say that Judge Blue has succumbed to the kleig light's white glare. But he is vulnerable. This man who walks alone and enjoys the shadow cast by history can too easily be tempted to think this case give him a chance to find a more permanent place in the state's legal history. Resist the urge, Judge Blue. Connecticut does not need an Ito of its own.

Wanna Use My Confession? Then Record It.

If you want to short the circuits of an FBI agent, agree to talk to him, but only on the condition that you are permitted to tape record, or, even better yet, video record, your converation. Odds are, the agents will flush a deep red, stammer something about that not being possible, and then bluster with some veiled threat or another. The feds, like most law enforcement agencies, have a policy against electronic recording of statements. There is no good foundation for that policy in law or in fact.

It used to be that officers claimed the technology to record statements was not available. Why that was the case when radio shack carried analog recorders that cost no more than a couple of dozen donuts was a mystery to me, and many are the lawmen I have challenged on cross-examination about why the piddling expense of a recording device was too much to bear in the search for the truth. The fallback position was the law enforcement version of the Nuremberg defense: "I am just following orders. Departmental policy does not require recording. I don't know why the policy exists."

This silliness is even less sustainable in the digital era. Now, most folks carry a recording device on them at all times. Most cell phones have the capacity to record audio; the better ones can even record video. There's really no factual excuse for failing to record.

Yesterday's New York Times reminded us yet again of why recordings are necessary: Innocent men and women are persuaded by police officers to confess to crimes they did not commit. It happens with disturbing regularity. Men and women spend decades behind bars for these crimes. And still there is no hue and cry among law men about the injustice of it all. The Times reports on a study by University of Virginia School of Law Professor David Garrett that demonstrates dozens of defendants have been exonerated of crimes they confessed to once the DNA evidence in their case was tested. Innocent men, I repeat, confess, and they do so after being left along with police officers who "tune them up" to tell the truth.

Left alone with defendants, and especially the mentally infirm, the young and the vulnerable, law men can easily contaminate an interview by providing inculpatory information to people being interrogated. At trial, these isolated facts are often dressed up as facts that only the perpetrator would know. In an ideal world, a witness's statement is paraded before the jury with great solemnity: No innocent man confesses, the prosecutor intones. Of course, the jury never gets to see the pre-interview shakedown, a process that can often last for hours and during which officers use the skills they have been trained to use to break down a person's will to resist. Those techniques rarely involve the physical bruising "third degree." Today the force used is more subtle; it leaves no scars that can be seen. The methods used to break a person down are psychological, and without a recording, no juror ever gets to see what really goes on at the police station.

On the federal level the game has a name: I call it the 302 Blues. You speak to federal agents. There is always a federal agent sitting by taking detailed notes. When the interview is over, this agent writes up a typed report summarizing what you have said. The agent then is ready to testify live and in person against you if you offer testimony at variance with the 302. Just which version of fool's paradise requires us to trust our liberty to the integrity of the FBI? It is a felony under federal law to give a false statement to the feds, whether that statement is under oath or not. Edgar, Edgar, why has thou forsaken me?, many a man cried from a cross when wicked lawmen bent the truth to crucify them.

Confession evidence is powerful and damning. A person can be convicted based solely on their confession. Because the risk of a false confession is so great, it seems to me that the state ought to be given a choice: If you want the opportunity to use a person's words against them, you must record the entire interview you conduct with that person: not just the pretty part you rehearsed and want the fact finder to see.

I like this rule as it avoids the inflexibility of a categorical rule requiring confessions in all cases: There may be circumstances in which a tape recording cannot be obtained, but exigency requires a confession, such as, let's say, in Alan Dershowitz's "ticking time bomb" hypothetical. Save the world if you must, but please, not at the expense of the presumption of innocence.

I say give lawmen choices. But let's protect the accused, too. If the police want to use a confession against a person, then require them to record it. There is no excuse to do otherwise.

In the meantime, don't be bullied. If the cops want to talk, press the record button on your telephone. If the cops flee and refuse to talk to you with a recording device on, save that tape. It might just save you from a lengthy prison term when Agent Feel Good has to explain to a jury why he was afraid of a simple recording of the means he uses to search for the truth.

A Shocker In New Haven: Juror Asks What's This Murder Case About, Anyhow?

At the rate things are going in the case of State v. Hayes, the case could end as early as next week. But the ending will be a mistrial, not a verdict. That's because in two short days of evidence, four jurors have already decided to bow out of service. It takes twelve men and women to make a verdict. If there are fewer than 12, it's back to square one, unless the parties agree to permit the case to be decided by a rump jury. I don't expect the defense to permit that. When the state seeks to kill your client, a mistrial is champagne-popping time.

In fairness, the 12 jurors, six alternates and two back ups were picked during a marathon jury selection process that spanned a period of a couple of months. It's been a while since the entire group was selected. Returning to the courthouse after a hiatus in some cases of more than half a year was bound to produce a couple of surprises. Three jurors opted out before the gavel fell opening the proceedings. Apparently, one other panelist fell by attrition without notice. So as today began, there were twelve jurors and four alternates. In most cases, that would be more than enough to bring the proceedings to a tidy conclusion a couple of months from now.

But then the unprecedented occurred. Before the lunch break today, a juror sent a note out to the judge. He had concerns he wanted to discuss. The note was tendered apparently during the gripping testimony of Dr. William Petit, the sole survivor of the Cheshire home invasion. Judge John C. Blue decided to wait until after Dr. Petit finished testifying before addressing the juror's concerns.

When the juror was questioned, he offered the following: He did not think he'd be able to render a verdict in the case given the evidence. Is the case too gruesome, you might wonder? No. That was not the issue. The state's case was disorganized and made no sense, the juror said. It appeared as though the case was poorly prepared, he opined. During the most dramatic and sympathetic testimony of the case, that of Dr. Petit, a juror all but raised his hand and asked: "What the Hell is this all about?" The sucking sound you heard early this afternoon was that of the prosecution's gonads retreating to a safe, dark place.

I've spent a lot of time in courtrooms and this ranks as one of the most amazing things I've ever heard. Mind you, the case was all of one and one-half days long. The state had only yesterday given an opening statement laying out its claims: A family was slaughtered and terrorized in the dead of night. Then the defense stood up and admitted that Mr. Hayes had murdered the mother of the family and participated in the mayhem. This isn't exactly a case turning on an obscure point of law or difficult to conceive facts. A juror vetted after lengthy voir dire by both parties simply declared "no mas."

I have never seen a prosecution so effectively neutered and so quickly. It is as though the juror listened to the state, considered its star witness, and then decided the case wasn't worth the time it would take to decide it. How can the prosecution rebound from this unsubtle humiliation?

Judge Blue questioned the jurors outside the presence of other panelists. The juror was questioned by counsel as well. Did he understand that evidence is admitted piecemeal, that trial is akin to assembling a vast puzzle? Oh, yes; he understood that. He just didn't think he could make a decision given the manner in which the case was being presented. The state moved to have the juror it had rendered senseless with its opening statement and presentation of evidence removed from service. The defense, sensing hope perhaps for the first time in this seemingly hopeless case, wanted the man kept on the jury. Judge Blue discharged the juror and worried aloud about a mistrial.

Cold records rarely reflect the underlying symbolism of a trial. Could it be that in this case all the public rage, fuss and furor of the past three years has desensitized this jury? Perhaps a governor who vetoed lawmakers' efforts to repeal the death penalty by talking about this very case offended the juror, as well it should have. How is it that as the state's star witness testifies, the man who should be rallying jurors' sympathy to move in for a quick kill, all one juror can do is beg to get off the case because the case makes no sense? Something is happening in that courtroom; what it is is not exactly clear.

The defense sensibly chose not to cross examine Dr. Petit. He told his story. He told about escaping his own home of terrors. No doubt there were tears aplenty and sympathetic gasps in the courtroom. But could it be that this was all a bit too theatrical for an ordinary juror? Has the state striven to strike a tragic note but failed even to inspire gravitas? I find that hard to believe.

But the jurors were there and saw something.  Once the Doctor's testimony ended, one juror sent a note for the judge. How, he wondered, did the doctor manage to escape from the basement after he had been tied to a pipe and while his hands were bound. What went wrong for the state today? How does Dr. Petit weep the tears of the bereft and inspire something other than sympathy? How?

All trials are about a struggle of good versus evil. To win a trial, you must keep evil on the other side of the aisle, and capture, if you can, goodness. But what of this dynamic in a case where the evil is so obvious and apparent that it is not contested? What does the state do when the defendant admits the very crimes of which he is accused? In that case, a juror could well wonder what motivates a state to play at justice in such a farcical and public manner. Is all this just so that a man who admits his guilt can be killed? Is the state seeking to manipulate the jury to become the very sort of evil the state condemns. Yes, we should kill the killer, the state proclaims. Killing makes us good. No wonder the juror wanted off the panel. This is madness, not justice.

The case resumed with twelve jurors and three alternates. The evidence moves briskly. One senses that the defense is on target and moving according to plan. Of the state, all that one can say is "ouch." Just how you try a man for murdering a loving wife and mother, put her husband on the stand to testify about the last moments his family lived, and then have a juror beg off because the case makes no sense is, frankly, one of the most astounding things I have ever heard of in a courtroom.

Day three cannot rival today for surprise. Or can it?

Stryker's "The Art Of Advocacy": Must Reading

The backward glance is almost always fatal to the living spirit. If the best has already been thought, said and done, what's the point of struggling forward? If all is but mere faint repetition of never-to-be-repeated excellence, why struggle face-first against the chaos of our days. Nostalgia, I say kills.

But I cannot help this morning but wish to have lived in a different time and in a different era. I would have liked, for example, to have spent time with Lloyd Paul Stryker. He was a literate lawyer, as facile with literary allusion as with a a difficult witness. If trials are vanishing, so too are trial lawyers. Was Stryker the last of a dying breed?

I say not. I say that because in the wee hours of the morning when I finished a book he published in 1954 about the state of legal advocacy in the United States, I did not feel as though I were reading stale history. I felt as though I had met a friend, someone muttering under his breath about the same things that make me weary. The Art of Advocacy: A Plea for the Renaissance of the Trial Lawyer, was first published in 1954. It was just reprinted by Equinox Publishing.  I say this is must reading for every lawyer who walks into a courtroom and dares stand up for another person.

A friend who himself is growing long in the tooth recommended the book to me. Although I am old enough to know better, I am still a rebellious mare. I listen with reluctance, and always with a fight. But I know a few great lawyers. When they toss me a bone I gnaw on it. Stryker was such a bone. I read his book with stunned regret: Where has he been all of my life? Answer? Sitting on a bookshelf somewhere waiting to be discovered. That I had been but wise enough to look and listen.

Stryker calls for a divided bar: Let trial lawyers form a separate caste, a separate calling, called advocates. Those lawyers who darken no doors but the doors to their office should remain in their offices. The division between courtroom and office lawyers is intended to mirror the divide between barristers and solicitors in England. As Stryker notes, that division has eight centuries of history behind it. We would be wise to follow Great Britain's lead in this, as we did in adoption of the common law.

Why do we in the United States permit men and women who have never tried cases to serve as judges? Stryker notes of England: "An English judge, therefore, is a man who has been an advocate, and through advocacy has learned how a case should be conducted before a court and jury. A solicitor could no more be made a judge than he could be made an admiral of the fleet. A law teacher or writer would have as much chance of mounting to the bench as would of becoming the chief surgeon of a great hospital," he writes.Were he living today, I am sure he'd have a few choice words about our recent Supreme Court nominees, almost all mere novices in advocacy. And what of the dismal state of our District Courts? Where are the trial lawyers?

The English model makes barristers a breed apart: To these warriors falls the conduct of battle in open court. Clients and cases are prepared by solicitors; the solicitors, in turn, retain barristers. It is a model Stryker rightly admires, although he thinks the barrister's limited involvement of contact with clients deprives the barrister of much necessary to effective advocacy. He may be right there, but he did not live to see the day of a professional code of ethics modeled on informed consent. A busy trial practitioner now must spend his days in the well of a court, and his evenings offering counsel to the grieved and unstrung. Sleep is optional; time for reading? Few lawyers seem any longer to read for pleasure, and the profession suffers for it.

Stryker at times inspires. I sat up in my bed at 2 a.m. ready to go to court when I read these words: "[T]here is indeed a place for good advocates who are unafraid, and who know how to stand their ground on all the battlefields of justice, including that most bloody one that every day is found in our criminal courtrooms. When that day comes, as in a declining Rome and in Revolutionary France it came, where there are none left able or brave enough to engage in this unending warfare, the liberties of American citizens will perish, and tyranny will reign supreme even as it now reigns in Moscow and in every dastard totalitarian outpost."

This not a perfect book. From time to time it descends into mere recitation of anecdote, but the stories instruct, and you can construct a perfectly fine reading list by taking notes in the margin. (A fault of the editors is the failure to index this volume. My copy of the book is littered with scrawled notes about authors to read and books to find. I will read Styker on Erksine, defender of Tom Paine, if I can find a copy. And I want to know more about Rufus Choate.) Even so, the book is good instruction on story telling, handling witnesses and even appellate advocacy. It can be read and studied with profit by any lawyer.

I know trial lawyers who read this page. Do not take my word for it. Buy this book, and read it, and then go out and wage war on complacency and the smug certainties that choke liberty. You can find the publisher at www.EquinoxPublishing.com

Thank you Lloyd Paul Stryker, and thank you to the aging warrior who recommended this volume. I'll be calling soon for more reading. The best may not be behind us, but there are gems in our past that need retrieving and are worthy of appreciation.

The Show Trial Begins: The State Grooms New Killers

I was in New Haven Superior Court yesterday representing folks in the ordinary sorts of chaos that are typical of a criminal defense lawyer's day: A woman cut her lover with a knife as they fought. The state claims assault; we claim self-defense. A mother and father locked a teenage daughter out of their house after beating her with a belt: If she wanted to behave like a street walker, then let her walk the streets and learn the many sorrows of a pimp's girl, they reasoned in a frightened rage. The state claims assault and risk of injury to this child; we acknowledge a line was crossed but see no point in sending these parents to prison as felons.  Did I mention that my clients were all African-American?

Lines were drawn yesterday. A woman can defend herself against a man enraged, even by cutting him and sending him to the hospital, or so we say. A judge and prosecutor determined to send caring parents who went too far to prison will have to earn the right to further damage this family. We'll demand that a different judge and jury hear all the facts before deciding what justice requires.

Lines were drawn in these cases in a rundown courthouse on Elm Street across from the town green.

Around the corner, a different sort of line was forming at a different courthouse. This one was composed of reporters and gawkers all of whom were a gathering for the start of the trial of Steven Hayes, a man accused with his co-defendant of the rape and murder of a mother and her young daughters in an upper middle class bedroom community just north of town. They were the family of a popular physician who was beaten senseless in an early morning home invasion. This case has become the stuff of legend; it is national news.

The opening day of the trial of Steven Hayes reflected few surprises. Crowds gathered, reporters gawked and even Twittered, sending electronic messages to the world at large as witnesses testified, the largest courtroom in the city was spruced up for the proceeding. A separate courtroom was set aside as a gathering point for supporters of the victims' family. It appeared as if there were even additional street vendors in the area, hoping to feed the masses worshipping in this macabre house of grief. Do I dare mention that the victims in this case are upper middle-class white folk?

The Hayes case has been the quiet talk of judges and lawyers since the murders took place in the summer of 2007.  I have yet to speak to a lawyer or judge who does not acknowledge, privately, that race and class matters in this case. Just the other day, one jurist shook their head in something like sorrow as we talked about the blood red carpet being rolled out for the Hayes case. Had the victims been Black and poor, residing in a housing project rather than a bedroom community, there would not be television trucks outside the courtroom and sketch artists watching the trial. There would have been no special coat of paint to patch over rough spots in the courtroom. There would be no death penalty sought.

Judges know this to be true, but are afraid to admit it. Lawyers know it to be true, but see little premium saying it: Why there are paying clients in Cheshire, the hometown of the victims. Why offend Mr. Green's keepers?

We want to say that justice is blind, color blind, we hope. But we all know better. The Hayes case proves it. Even the state's forensic laboratory is in lock down: I am trying a murder case in Hartford next week. My client is white; the victim Hispanic. These are people of modest means. We have been informed that the state's DNA analyst might not be available. The staff is on call for the Hayes trial. This abysmal business of seeking to kill Mr. Hayes has created a caste system in the state's criminal justice system. It is a bizarre but unspoken truth behind closed doors: The New Haven cases gets special treatment: Those of our privileged class and station were felled.

The trial began without fanfare. Three jurors decided for one reason or another that they could not participate in the case. One, an African-American, was interviewed on television. She thought, on reflection, the case would be too disturbing, too violent. Perhaps that is the truth. But she had been questioned at length about this in jury selection. Perhaps this woman of color just felt uncomfortable around a white lynch mob bent on killing.

Defense counsel conceded in his opening statement that Mr. Hayes had killed the children's mother. This simple burglary wasn't supposed to turn violent. But it did. The defense did not waste time on distracting cross-examinations as the trial opened. The state examined five witnesses in rapid succession, setting the scene for testimony the prosecution promises will be deeply disturbing.

I know all of the lawyers involved in this case; two of them, State's Attorney Michael Dearington and defense counsel Thomas Ullmann, are family friends. But this trial strains relationships. I regard Tommy as a hero: a lawyer's lawyer standing proud and unbent in the face of rage and passion to defend a friendless man. Tommy is a public defender, but, should I ever need counsel, I would beg him to take my case. He approaches this case with a sense of grim necessity. It is a hard, impossible case: The fight is to keep the state from killing his client. It is a fight to the death. Daniel has been thrown into the lion's den.

Mike plays the role of reluctant white knight. He almost apologized to the jury about the horror they would experience in the trial. But the tone seemed all wrong. There is no necessity for this trial. Mr. Hayes has offered to plead guilty. Life without possibility of parole is not enough for the prosecution. It wants another corpse, another horror. I look at Mike and I sense something like the abandonment of reason. Why do you, too, insist on becoming a killer, Mike? What will you do with the eye you pluck from Mr. Hayes' cold skull in retribution for the eyes he has taken? Will you pickle it, place it in a jar on some hideous shelf in the chaos of your office? There is no need for this blood sport. This death work is a choice Mike has made; that he now asks others to become as Mr. Hayes, self-conscious and deliberate killers, is a mockery of the reasoned and measured pose that justice requires.

This trial is a two act play. The first part, the guilt phase, will move quickly. The state will bathe the courtroom in blood and horror, and then stand by in mock solicitude as the jurors weep. Mock solicitude, I say, because it is the state that insists that this upper middle-class show trial take place. Mr. Hayes would long ago have begun serving his life without possibility of parole term if the state had let him. Under Connecticut law, Mr. Hayes is required to fight for his life. The real fight will take place at the penalty phase, where jurors are asked not to compound the evil done to the victims with the evil of making killers of us all.

The lines will form again at the courthouse today. And today lawyers and judges will talk privately about the double standards at work in the state. When people of color stumble and fall, the system grinds out a dismal sort of tune. But kill white folks in paradise? In that case, we invite an orchestra to the courthouse.

Why this show trial, Mike? Why press ordinary jurors to the point of becoming killers? This is not justice. This is a costly pyschodrama that demeans us all.

State v. Hayes: Opening Day Forecast

Snipers will prowl the roof of the New Haven Superior Court this morning just as they have on other occasions when Steven Hayes appeared there. These lawmen will peer up and down the streets of the Elm City making sure that no one gets a free shot at Mr. Hayes. It is a given that many folks in the state want him dead. It is the job of these SWAT team members to make sure that he is killed in the right way, at the right time, and by the right folks.

Standing between Mr. Hayes and death are Thomas Ullmann and Patrick Culligan, the two senior public defenders appointed to defend him. Saving Mr. Ullmann from the verdict of an angry jury's lethal verdict won't be easy. I expect a packed courtroom of folks sporting for blood. The evidence against Mr. Hayes is overwhelming. He and a co-defendant did kidnap, rape and murder a mother and two daughters after beating the man of the house and leaving him for dead. As the two killers fled the scene, they set the family's home afire. It was as though Satan escaped the confines of Hell one night and stormed Eden.

Mr. Hayes will be convicted of most, if not all, of the crimes for which he has been charged. That is a foregone conclusion. The real question is whether he will be sentenced to death. A betting man would be prudent to bet that the jury decides to kill him; but I doubt Mr. Hayes will be sentenced to die. That is because I expect Dan Malloy to win the November election for governor, sometime before evidence in the case closes. Mr. Malloy is a death penalty opponent, you see. He is expected to welcome legislation to abolish this state-sponsored savagery. The incumbent, N. Jodi Rell, vetoed a law repealing the state killing, citing in particular the Hayes case.

As trial opens, the court will permit opening statements. Such statements are rare as a matter of Connecticut criminal procedure. Mr. Hayes offered to plead guilty to capital felonies, but state law does not permit him to agree to death. So the trial goes forward as scheduled today, a gruesome prime-time farce.

Mr. Ullman will open for the defense. Here's the closing I expect:

"Ladies and gentlemen, all of you have by now heard or read about this case. The basic facts are uncontested. A family was destroyed in July 2007, and with their destruction all of us lost the peace of mind that comes of the assurance that simple hopes and dreams are sacred: A warm home, a loving family, beautiful children growing strong and confident in the shade of their parents' strength.

"There is no doubt that Stephen Hayes cut this family down. He fled from the scene in the family car as the home burst into flames he and a co-defendant set. You will see horrible evidence of his handiwork in this trial. There will be photographs you will wish you never saw. Even text messages and photos will record this particular brand of savagery. You will see this and you will grow numb with shock; when the shock recedes it will be replaced by anger. And finally, you will be brought to a place in which you, too, will be ready, willing and able to kill. The state will ask you to kill Stephen Hayes, and I suspect that you will want to do so.

"I know this because Mr. Hayes has already walked this road of rage and remorse. He has offered in this case to plead guilty because he is guilty. But our law says that he cannot enter this plea. The law requires a man faced with death to fight for his life. It is an odd law, if you think about it. A man who wants to plead guilty cannot do so if the state seeks the death penalty because a guilty plea is tantamount to suicide. So we summon you and gather the community together in this room for the weeks and months to come so that State of Connecticut can gather every gory and shocking detail of an uncontested terror and parade it before you in an open courtroom. We call this horror justice.

"Mr. Hayes offered to plead guilty because he is guilty. But the state, these prosecutors sitting here behind me and to my right, they want you to kill Mr. Hayes. They want you to see what he did: see the blood of innocent children, hear the screams of a mother's despair, smell their flesh burning. They will even offer remnants of clothing for you to touch. Your senses will be engaged here in an effort to inflame your sensibilities. I predict, ladies and gentlemen, the state will succeed in inflaming you.

"Mr. Hayes wants to plead guilty, and so he has, by act, word and deed. He hoarded medication in his cell, and swallowed what he hoped would be a lethal dose of pills not long ago. Perhaps you read about it. The state did not let him die. The state chained him to a bed so that he could be nursed back to health and brought here to trial. To kill Mr. Hayes must be a thing of justice. He is our fatted calf, to be offered up in rage and anger and self-righteous fury by you in a trial in which you must first find him guilty, and then find that he must die. I suspect my client will sit here day by day wishing he had succeeded in taking his own life. The prosecution won't let him: You can't die unless we have the pleasure of killing you. This is a sick and twisted ordeal, I tell you.

"Old lawyers refer to some trials as a slow guilty plea. So this one shall be. We will have few questions in this, the guilt phase of the trial. We will let the state find a voyeur's pleasure in recreating the crimes. You will see the state has spared no expense to do this task, a task we want nothing more than to spare the state, and you. But the prosecution insists that this show go on. It is necessary, you see, to go through this to bring you to killing fields all your own. Mild and unassuming as these prosecutors are in demeanor, they bring the cold-hearted determination to kill to these proceedings. They wish nothing more than to make you accomplices in an act the law will not permit them to commit without your help.
I suspect Lady Justice sheds a silent tear behind her blindfold this morning.

"Mr. Hayes is a killer. He tried even to kill himself. For all I know he will try again during this trial. He has lived this Cheshire horror once, and does not relish its replay here for you. He sought to avoid it. But the state kept him alive so that you can have the satisfaction of killing him yourself.

"In the penalty phase of the trial, we will wage the fight the law requires us to wage. We will ask you then to let him live. By then you will know things about pain, grief and things without names that you cannot even imagine now. You will know then what it is like to kill, and to glory in the killing. I will ask you then to put aside the savage lust for revenge and to stand aside. There has been enough death in the case to sate the state.

"Thank you for listening to me. I can see that you are sober and serious minded people who have come here to do justice. In this case, we will ask that you lock Mr. Hayes away for the rest of his natural life. I won't insult you and say that such punishment is more savage than a painless death at the hands of the Department of Corrections, a death supervised at arm's length by physicians, a death far kinder than Mr. Hayes' victim's endured. That would be an insult to you, to the memory of those killed, and to the heart-broken rage of Dr. William Petit, who must somehow find a way to survive these crimes.

"But I will ask you to avoid in the name of justice once again dipping clean hands into warm blood. This trial, ladies and gentlemen, is unnecessary. We fight it because we must. The law permits nothing less when the state seeks to kill a man. I welcome you this sad September morning to the killing fields of justice, where vengeance prowls, and reason is left chained unseen and weeping that we are such mortals as require this theater, a performance designed and intended to do nothing other than to reduce you to a state in which you overcome your revulsion over the thought of killing another, and decide to become killers yourself.

"Welcome to Hell, ladies and gentlemen."

And with that, he will turn the case over to the prosecution. A wise lawyer, a lawyer cut from the mold of Clarence Darrow in his defense of Leopold and Loeb, would say little in defense of Mr. Hayes in the guilt phase of the trial. Recall that Leopold and Loeb was a court trial: What would, or could, have Darrow said to a jury? The real fight here is to save a life and to prevent twelve more people from growing too comfortable with the taste of blood on their lips.

Crisis In The Federal Courts?

The next time your hear a judge whining about the vanishing trial, tell him or her to cut the crap and let the litigants get it on. Trials are vanishing because trial lawyers are being papered to death with meaningless bullshit. That's because most judges have about as much trial experience as a nun in a whore house: You can read all you want about what's like to get screwed, but until you're flat on your back screaming "Jesus," all you know is what you've read. Nobody ever got pregnant reading pulp fiction.

Dahlia Lithwick's piece in Slate yesterday just plain rubbed me the wrong way. Lithwick notes that partisan gridlock has resulted in vacancies in 102 of 854 federal judgeships. This product of partisanship has created a non-partisan crisis in the courts. "Every day Americans look to the courts to address problems affecting their daily lives. With the high number of vacancies, their ability to stand up for their rights will be unacceptably delayed," Litchwick quotes Nan Aron at the Alliance for Justice as saying.

I've got news for Lithwick: Fill the court with a bunch of paper-pushing bench jockeys and ordinary Americans still aren't going to get justice. The courts don't function because they have succumbed to a managerial ethos. Rather than let cases proceed to trial, judges are papering lawyers to death. The reason Americans lack confidence in the courts is that most Americans can't get their cases heard in any meaningful way in court any longer. Judges are killing the jury trial.

The problem with the courts isn't a lack of judges; it is the sort of judges we get. There is a dearth of trial lawyers on the bench. What we end up with are transactional lawyers or so-called litigators -- folks whose view of lawyering is confined to walking the desolate path of paper trails. Hence, pre-trial management reports, damage analyses, interrogatories, requests for production, motions for more definite statements, motions to dismiss, motions for summary judgment, pre-trial memorandum, trial briefs: I suspect most federal judges wet themselves at the prospect of facing a jury because, truth be told, they have never faced a jury as a lawyer.

Connecticut has a full complement of Article III lifetime appointees to the bench, but still the docket creeps: Dark courtrooms are unoccupied while keyboards click in chambers. Permitting juries to hear cases seems to be a dreadful prospect. An imperial judiciary doesn't want we the people anywhere near the administration of justice. The rare case that gets to a jury has run a gauntlet of judicial manipulation that leaves little for jurors to decide. And then, on the civil side, judges are free to hack away at damages or set aside a judgment they don't like. Popular distrust of the courts is not due to vacant judgeships; no, discontent with the courts arises from the kind of judges doling out justice.

Jury trials were once a crown jewel in the social life of small-town America. In the days before radio and television , folks flocked to courtrooms to watch the great dramas of the day unfold. Advocates bedeviled not just jurors but spectators with their rhetoric, and juries, speaking quite literally as the conscience of the community, were free to decide both questions of fact and law. A jury trial was something akin to a constitutional convention; great issues were placed before the community in a public forum.

Times have changed.

Explicit jury nullification has been abandoned in the federal courts and in the overwhelming majority of state courts. Television has made a mockery of the judicial process with cheap and easy entertainment taking the place of forensic contests. Those cases that get to trial are rarely reported any longer in an era of declining newspaper subscriptions: many papers economize by eliminating court reporting. And, worst of all, judges now seek to manage cases before they get to trial, eliminating most conflicts from the light of day and deciding cases based on mere passage of papers. Jurors, once the heart and soul of a community, are marginalized; judges are lionized. Juries are increasingly unnecessary.

If there is a crisis in the courts, it is not because there are too few judges. Rather, the crisis arises from the fact that few judges, even on the Supreme Court, have any real comprehension of what a trial is. Trials are vanishing, and so is public confidence in the courts. Putting a fresh batch of judges on the bench won't change a thing if those judges have the heart and soul of a backroom fixer. If we want public confidence in courts, we must restore trial to the role it once had as a public means of resolving conflicts. Let juries speak, and put the umpires back behind the plate, calling balls and strikes and leaving the game to those who know how to play it. Or, for those who you who insist on metaphorical consistency: send the virgins back to the convent.