Norm Pattis

I've moved

2010-10-03T14:50:00.002-04:00

Henceforth I will post at: http://www.pattisblog.com/.

A Compromise Verdict

2010-09-30T06:05:00.001-04:00

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?

2010-09-28T06:53:00.000-04:00

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?

2010-09-27T07:17:00.000-04:00

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

2010-09-26T13:47:00.000-04:00

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

2010-09-25T08:36:00.001-04:00

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

2010-09-24T12:07:00.001-04:00

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

2010-09-23T23:01:00.001-04:00

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

2010-09-23T06:57:00.000-04:00

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

2010-09-23T06:52:00.002-04:00

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

2010-09-20T21:54:00.001-04:00

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?

2010-09-20T21:31:00.001-04:00

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

2010-09-20T08:24:00.000-04:00

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

2010-09-19T20:55:00.000-04:00

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

2010-09-19T07:14:00.000-04:00

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 ...

2010-09-18T22:52:00.001-04:00

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

2010-09-18T15:17:00.000-04:00

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

2010-09-17T18:56:00.000-04:00

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

2010-09-17T07:00:00.003-04:00

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

2010-09-16T08:10:00.000-04:00

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--

2010-09-16T01:26:00.000-04:00

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.

2010-09-15T19:11:00.000-04:00

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?

2010-09-14T17:51:00.001-04:00

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

2010-09-14T08:23:00.002-04:00

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

2010-09-14T02:54:00.004-04:00

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

2010-09-13T00:22:00.004-04:00

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?

2010-09-12T10:50:00.006-04:00

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.

Burn, Baby, Burn: We Believe, Help Thou Our Disbelief

2010-09-11T09:52:00.001-04:00

I take no position on whether burning the Koran is a good or bad thing. Frankly, I am with Voltaire on the topic of organized religion: "Encrasez l'infame' he said of Christianity, "crush the infamous thing." Why not gather up all the holy books and have a bonfire? Burn Bibles, Korans and toss in a few holy men, too. These fools commandeer our deepest hopes and sometimes lead us headlong to destruction.

But burning Bibles won't quench the fire within. We all seek meaning in one way or another. Whatever the genetic legacy we share with our near relations on the evolutionary tree, we are, perhaps, best defined by our pursuit of meaning. Forget opposable thumbs, what defines us is how we reckon the meaning of time, confront the fact of death, and reconcile our desire for significance in the cold face of a world that seems simply to unfold, crushing all it confronts.

Today is the ninth anniversary of the destruction of the World Trade Center by terrorists spouting Islamic hate. Their hatred wasn't a necessary fruit of Islam. Lord knows we've plenty of Christian zealots who'd return the violence on Islamic people, if only they could muster the means and courage. We hate what we fear; and in a word of strangers there is plenty to fear. Wars and rumors of war are a constant; dreams of perpetual peace are sweet sounding conceits. We seek meaning because we cannot help but to hope; born, as we are to die, we struggle against the inevitable by means of myth, metaphor, doctrine and, finally, orthodoxy. But the sad truth remains that there are no winners in the end. It is appointed unto all men once to die.

We are stuck with religion and religious aspirations. We end up with vapid rhetoric of mumbling politicians trying to strike the right pose, but sounding like gushing teenagers preparing for a first date. Listen to Barack Obama trying to sound like a Christian. Listen to the grand rhetorician:

"And I will do everything that I can as long as I am president of the United States, to remind the American people that we are one nation, under God, And we may call that God different names, but we remain one nation. And, you know, as somebody who, you know, relies heavily on my Christian faith in my job, I understand, you know, the passions that religious faith can raise." Praise nothing and pass the tomato sauce.

These lines are the stunning confession of a man without beliefs of any real or abiding sort. His sad refrain of "you knows" sound identical to the sad lack of confidence of a young person punctuating their speech with sonar-like asides designed to assure himself that a listener he cannot really reach is still there. It was as if the president were to declare: "I am, you know, like, the president of the United States, you know what I'm saying?" When a man who rose to national prominence salts his speech with this sort of rhetorical gibberish, you know he's in trouble. Call him a political Christian, the bastard cousin of social the much maligned social Christian.

Pollsters reflect that plenty of Americans think Obama is a Moslem. The president wants us to think he is a Christian. My sense is that he is neither. Many of us belong to no community of faith, and wish nothing more than to stand on the sidelines of the dramatic struggle between conflicting, and mutually exclusive, world views. But it is the very nature of zealotry to concede that there is no sideline. We are all in all the time. What we are not for we are against. There is a mindset that requires commitments to things unseen.

One version of the American creed is we a nation of pluralists all committed to some overarching search for the good that is so denatured as to be meaningless. Your God and my God are different and yet somehow the same, we say. This is weak gruel for souls seeking nourishment in the dark nights of despair.

American exceptionalism dies hard. Today is a reminder of that. Just why we think we were granted immunity from the struggles that rend the rest of the world is a conceit I cannot fathom. We are not a city on a hill setting standards for the world. We were an affluent nation with room to spare; what we could not assimilate, we spread around the broad canvas of North America. The borders are closing in on us now. There is little room left to hide. Our discordant dreams collide and clash. And still we hope.

I was half disappointed that Korans weren't burned at the Dove World Outreach Church in Florida today. I am not sure why. Perhaps it is because the passions the flames would have reflected seem somehow more real that, like, you know, the mealy mouthed rhetoric of, you know, a president who, you know, doesn't really know what he believes or why.

Miscellaneous Gripes ...

2010-09-10T18:21:00.001-04:00

I have long been a fan of the federal courts. Although young lawyers are often intimidated by that forum, my sense of things is that it is a user friendly place. I've begun to rethink that in recent years. This morning gave me another reason to wonder whether my loyalty has been misplaced.

Little that I learned in law school prepared me for the actual trial of a case. And because I never clerked at either the trial or appellate court level, I walked into a courtroom more or less blind and dumb about how to get things done. But I was not deaf. I spent a lot of time listening to my adversaries and to judges telling me why I could not do this, that or the other thing. Over the years, I more or less got the hang of things.

I was lucky when I started practicing in the Connecticut federal courts. There was a huge backlog of cases and several new judges who had recently been appointed. For a few years, the dockets moved as fast as the lips of a confidential informant. There were months when I would go to a calendar call and pick two, sometimes three juries, and then try the cases seriatum. Nothing gets you over a sense of stage fright and intimidation like repetition. For several exhausting years, I learned the federal code of evidence and rules of procedure the old-fashioned way: by stubbing my toes until I learned how to tap dance. I miss those days.

The clerks and court staff were what made federal court a pleasant place to be. They knew how to do things. What's more, most were very generous with their time and talents. I wish I had been a been a better listener. It would have spared me a lot of embarrassment.

So what's changing?

Let's leave aside the court's great glee in disposing of civil cases prior to trial by way of motions to dismiss and motions for summary judgment. (Summary disposition on the criminal side comes in the form of a guilty plea: the Government's cases are almost never dismissed.) Let's forget, too, those judges who view their lifetime appointments as a God-given right and who do as much or as little as they please. (You can wait forever for a civil case to be called to trial; some judges play hide and go seek with their docket.) Today I stubbed my toe on a little thing; a simple matter of customer service, really.

I wanted to file a motion to quash a grand jury subpoena. I left for court yesterday to file it late in the afternoon. But I was too late. The clerk's office closes at 4:00 p.m. So I turned up bright and early this morning. Too early, it turns out. The clerk's office does not open until 9:00 a.m. Not to worry. I went to a local coffee shop. (Damn. I should have gone to Starbucks, the satellite office of many a lawyer, or so I read.)

Shortly after the clerk's office opened I was standing at the veritable counter of justice.

"It's been a while since I filed a motion to quash. What do I do?," I asked. My pleadings were prepared and I slid them across the counter. I signed the original in blue ink having long since learned that black ink is a "no no." How in the world is a clerk to know whether black ink is an original signature?

"I see you signed the original," the clerk said. My heart swelled with pride.

"This will have to be a new file. It is a special proceeding. There is a thirty-nine dollar filing fee," I was told.

I was ready for that. I pulled two twenty dollar bills out of my pocket and slid them across the counter.

"Do you have change?," the clerk said. "You have to give us the exact amount."

This threw me.

"I'm sorry?"

"We cannot make change," she said.

Of course, I had no change.

"Why don't I just contribute the dollar extra to the office coffee fund," I said, feeling magnanimous, but also sensing that a massive wall wave of bureaucratic irrationality was about to descend.

The clerk looked offended.

"We can't do that," she said officiously. It was as though I had offered a bribe.

It is at moments such as these that I envision how fun it must have been to dress up like an Indian, slip into Boston Harbor in the dead of night, and toss British tea into a harbor. This reverie is usually followed by more modern visions of a putsch, with miscellaneous government officials lined up face-first against a wall as I reload my revolver. These thoughts are dangerous. So I tamp them down.

I walked to a nearby shop and begged change for a twenty dollar bill all the while muttering about time wasted. It is inconceivable to me that the government will permit clerks to accept cash but not make change. What are they afraid will happen?

Can't someone preach sweet reason to the clerks in the New Haven federal court? I know they are good people. I think they are just constrained to follow stupid rules. It may be that irrationality governs in the state court as well, but I expect that there. The federal courts are supposed to be special.

Trial Lawyers Have To Love A Book That Opens As Follows ...

2010-09-09T18:33:00.001-04:00

"Those of you fortunate enough to have witnessed the fine acting of Paul Muni in Counsellor-at-Law will remember the last scene. One misfortune after another has befallen the lawyer -- hero of the piece. His wife has left him, and he feels himself a hopeless man. Planning self-destruction, in his despair he climbs out onto the window ledge preparatory to a fatal leap. But as he is about to jump, the telephone begins to ring. The ringing interrupts his suicidal purpose. He decides to answer it. And as he answers it, he undergoes a sudden change; his back stiffens, his eyes flash, his voice loses its dull tone. The son of a great industrialist has just been arrested, charged with murder! Disconsolate and without hope a moment back, the lawyer suddenly has become like a spirited fire horse eager to throw his whole weight into the collar. His troubles are forgotten, a new case has arrived!

"In the great law offices, with their innumerable partners, countless law clerks, and unfailing corporate retainers, a new case, I imagine excites no such emotion. But for the lawyer who devotes himself to advocacy and nothing else, a new and interesting case is always an event. Perhaps it may arrive in the turmoil of other preparations or it may be during the trial of some other case or, as is sometimes the case with even the most successful advocates, it may punctuate a long drought. For while there is nothing comparable in interest, so there is nothing similar to the uncertainties of a trial counsel practice."

Name the book. Better yet, read the book.

CCDLA Follow Up

2010-09-09T08:40:00.000-04:00

Incoming president of the Connecticut Criminal Defense Lawyers Association Jennifer Zito called yesterday to give me a piece of her mind: I had maligned the group needlessly, mischaracterized her reaction to my request for help with over-reaching federal prosecutors, and otherwise behaved like a shmuck. What's more, the board members she spoke to adamantly deny having spoken to the feds about investigating Martin Minnella.

The board is not going to submit to a polling. If I want someone recused from consideration of whether to protest to the Justice Department the new-fangled practice of interviewing a lawyer's current clients, I can ask for it. Indeed, one board member told Zito I lacked the courage to confront the board member directly on this issue. Please, spare me the juvenalia. What next, bitch slaps at three paces in some Dunkin Donuts parking lot? A public denial is at least reliable and capable of rebuttal.

The CCDLA is free to do as it pleases. I accept Zito's representations that she was told there wasn't any footsie being played with feds at the expense of the membership. I am nonetheless disappointed that there will be no formal statement or poll. But I understand that dignifying a critic with a public response empowers the critic. Better to ignore the ants at the picnic: the potato salad simply tastes better that way.

But I, too, am free to respond as I will to a board and body to which I pay dues. I will not be attending the CCDLA annual meeting or speaking as planned on voir dire at the CLE event. I am just not feeling that I am among friends. My time will be better spent defending Minnella. He needs friends just now. I can do without the bright lights of Mohegan Sun.

Foxhole Dick Takes Aim At Craigslist. Why?

2010-09-09T08:21:00.000-04:00

When I hear Richard Blumenthal chest-thump about Craigslist and advertising adult services, two words come to mind: Eliot Spitzer. What is it about aneroxic moralists that chills the blood?

Spitzer is now out of public life after getting caught between the sheets with a young high-price, well, child of the night. At once, this man who proclaimed righteousness was exposed as a preening fool. His dreams were of the tawdry X-rated type. He was sent from public service to something like private exile.

Increasingly, I think that Blumenthal deserves the same fate: his fantasy fox holes during Vietnam; his imaginary captainship of the Harvard swim team, a team he apparently wasn't even on; and his holier-than-thou claims never to have accepted PAC money, another whopper it turns out, make the sound of his voice fall flat. When Dick cries foul these days, I smell hypocrisy. I am hard-pressed to trust the man with a Senate seat.

Dick wants tough new federal laws to clamp down on Internet advertisements. "We are determined that Craigslist should be a model for good, not bad, in these practices dealing with prostitution ads," Blumenthal said. Oh, please Richard: would you just shut up? He sounds like he's still running for Attorney General and trading jibes with Martha Dean who, as candidate for that office, thinks our children should have firearms training in grade school. At what roadside vegetable stand are these candidates spawned?

The furor over Craiglist is another example of moral panic in American life. Something bad happens and people get scared. Out of the great need and desire to do something, laws get passed. These laws are often silly and overbroad. Consider the mess we've made of sex offender registration laws in the wake of those rare child abductions that make national news.

We now have a Craigslist Killer. Phillip Markoff, a horny and troubled young medical student in Boston, was accused of killing a "masseuse" he met on Craigslist. When Markoff killed himself last week it was as if some moralistic Greek chorus started chanting: "Beware Craigslist."

The market for human flesh, some progressive historians call it "sex work," is ancient. Tinkering with a federal law to make it easier to fine publishers who run advertisements for third parties seeking to pay for play isn't going to make the world any safer or more humane. Why not ban on single's bars, too?

Just why Craigslist tucked tail and pulled its adult ads section in response to a harrumph letter sent by Foxhole Dick and 17 other state attorneys general is a mystery. The company has not promised to stop running the ads. It merely reports to viewers that it has been censored. But it has not been censored. It backed down in response to moralistic bullying. Craigslist maintains that it is free to run the ads under federal law. The Communucations Decency Act permits it, the company says.

So why play footsie with the political class? If it's legal let Foxhole Dick and friends file suit. Test the scope of the law in litigation. The current state of the law treats Internet carriers more like telephone services than newspapers: While a newspaper might be charged with aiding and abetting a crime by running ads for sex workers, the telephone company is immune when folks chat about the fires they would like to quench in one another.

Foxhole Dick complains that Craigslist's may be an attempt to "mock the attorneys general." Give it a rest, Dickie. You've done a perfectly fine job of making politicians look like hypocritical asses this campaign season. Stop complaining about the mote in the eyes of others when you've got a Sequoia of deceit lodged in your own.

The thought of letting the likes of Spitzer and Blumenthal loose to regulate the Internet is far more chilling than random ads for pressed flesh. At least purchasers of adult services know what they're getting.

Reprinted with permission of the Connecticut Law Tribune.

The Revenge of the Nerds, Supreme Court Style

2010-09-07T18:07:00.028-04:00

"We have created an institutional situation where 26-year-olds are being given humongous legal authority in the actual wording of decisions, the actual compositional choices," a law professor told The New York Times recently. He was commenting on the role of fresh-faced graduates of the nation's top law schools serving as clerks at the United States Supreme Court.

Just why anyone would want a 26-year-ol lawyer to do anything other than cite check and take out the trash is beyond me. The life of the law is experience, not logic, Oliver Wendell Holmes, Jr., once famously remarked. Some tyro fresh out of law school is little more than an ideologue in a pin-striped suit.

But the Solons we place on the Court are seduced by youth. Disturbingly, the Times reports an increasing trend for conservative jurists to hire conservative clerks, and for liberal jurists to troll for liberal little geniuses. What's more, these young newly minted lawyers do a great deal of the law's heavy lifting, often playing key roles in deciding which cases the Court should hear, and drafting initial opinions. According to the Times, none of the current justices routinely writes the first draft of opinions.

There is something shameful about the law's nine superstars sitting in their chambers letting the children call life's larger shots. I don't care how smart a recent law school graduate is: After three years of hitting the books and learning to tap-dance to the satisfaction of law school professors, these kids don't know jack about life, liberty and pursuit of happiness. Little changes when then they spend a year or two preening for a Supreme Court clerkship at the feet of those feeder appellate judges such as former salon keeper J. Michael Luttig, who ran a high-class intellectual sweatshop for cranky little Federalists before fleeing the Fourth Circuit for big bucks as general counsel at Boeing.

I cannot fathom why a judge in his or her 50s, 60s or 70s is prepared to find intellectual solace in the company of someone young enough to be their grandchild. The law has texture gained only by experience; young lawyers are little more than social mathematicians. These rudderless young titans of the bar know the law's theory, but they have no sense of the human reality of the conflicts that bring a case to Court, and often keep a case in a court with often tragic consequences. What's even worse is the the folks at Biglaw are buying into this silly game: a kid fresh out of his clerkship can be paid a signing bonus of $250,000 for agreeing to work at some of the law's powerhouse firms.

It would make far more sense for justices to search for clerks who have shown brilliance and distinction at matching the law's theories to the messy assemblage of facts present in an actual conflict. Why are legal clerkships reserved for the least experienced members of the bar, the members without the wisdom that the passage of time can, but does not always, yield?

I say no Supreme Court clerk should be hired until they have practiced law for at least 20 years. Treat a clerkship as a sabbatical from the day-to-day reality of the practice of law. Let the justices spend time with trial lawyers, litigators and clients who do something other than navel gaze, write law review articles and avoid contact with actual clients with interests.

Not one of the current justices spent significant time as a trial lawyer, with the possible exception of Sonya Sotomayor. But she served as a prosecutor. There are no defense lawyers on the court. There are no defense lawyers among the clerks. The Court sits isolated in its pleasure palace spinning verbal webs that strangle real people. Is it too much to ask that at least a few of the clerks know what a trial court looks like and feels like?

Trying the "Inevitable" Case

2010-09-06T10:35:00.002-04:00

It is not uncommon in the practice of criminal law to counsel a client unable to make a choice. The alternatives are frequently too bleak. Regardless of whether your client has committed the act that results in prosecution, what's passed is past: Should the client plead guilty to a fifteen year sentence or run the risk of trial and a sentence potentially far longer? Of course, the answer depends in large measure on his odds of success at trial. Serving no time behind bars is the best outcome of all. It is the not-so-secret hope of every defendant.

What is a lawyer's responsibility when a client cannot focus on the alternatives?

I suppose physicians must confront this all the time. A patient is suddenly undone by a savage cancer. If the disease is left untreated, the result is foreseeable and all but certain. With treatment, there is some hope, no matter how remote. I suspect in medicine desperate people cling to unreasonable hopes, and consent to treat is easily obtained. The patient who refuses treatment is the outlier. In those rare cases where a patient is immobilized, the law steps in to determine whether the patient is capable of managing his or her own affairs. The presumption in favor of life makes fatalism seem irrational.

In criminal law, I've seen clients simply stuck, trapped between the proverbial rock and a hard place: They are unprepared to accept either the risk of trial or the plea offer tendered by the state. In such cases, the client all but screams: "Stop the boat. I want to get off." But there is no stopping the juggernaut of a prosecution. Inability to make a decision means the prosecution proceeds; trial is the default position in a criminal case.

What can medicine teach lawyers about this form of despair?

Medical ethics revolve around the notion of patient autonomy and its corresponding legal doctrine of informed consent. A patient trying to look a potentially fatal illness in the eye must, I suspect, be given a candid assessment of his or her options, and the risks of proceeding, or of doing nothing, must be explained. It seems to me that a physician is required to explain what can be done; the patient then signs off. But when a patient is incapacitated by the choices, the potential to appoint a conservator of the person renders it possible to end a stalemate caused by despair. A person incapable of making a choice is not treated as autonomous, but as a soul in need of help.

There is no equivalent to conservatorship in the law. Standards for incompetence are extraordinarily high. A client must either be unable to understand the nature of the charges or to assist in his or her own defense. The law says nothing really about a client's inability to intelligently weigh risks. Thus, a client gripped by fear and despair and unable to choose becomes a pawn of the system. Even the incompetent are held until such time as they are restored to competence.

It seems to me that in these hard and heart-breaking cases lawyers are ethically obliged to behave like good doctors: Perform a diagnosis by assessing the strength and weaknesses of the state's case, and then make a prognosis of the likelihood of success or failure and the consequence of failure. Provide the client with choices, and help the client make the choice by recommending what best serves the client's interests. Of course, such a course runs the risk of paternalism, the polar opposite of informed consent's vision of autonomy. But often clients have few resources other than a lawyer's shoulders to which to turn. Like it or not, you are good doctor, priest and lifeline. These roles are not the stuff of legal education.

I am aware of a troubling non-death capital case which the lawyers thought they could win at trial. The client insisted he was innocent of the charges. As a result, defense counsel refused even to plea bargain. The court did not insist that the parties try to agree on an outcome short of trial. The client, locked in hope, went to trial and was convicted, and now serves life without possibility of parole. I cannot escape the lingering suspicion that the lawyers in that case did only half the job they were retained to perform. A lawyer, like a doctor, should not blindly endorse the hope of a client. A lawyer's job behind closed doors is to play the role of loyal opposition. "What if," the lawyer should say, "what if you are convicted despite the odds?" A client should be given choices.

A client once confronted me on the courthouse steps the day jury selection was to begin. He was confused. Why?, I asked. He complained that I told him I was ready to fight the case to a verdict at trial, but I was still recommending that he consider the state's offer of a plea. Which was it?, he asked. The answer, of course, was both. The choice was the client's, not mine. My job was to be prepared for any possibility, governed only by the client's informed decision.

Note to Anon: I didn't post your snarky note. It was just too vituperative. No, I don't think I have the right to decide for a client. No one does. But there are hard cases where the client can't choose and the law simply grinds on. That was the point. I am sorry it was not clear enough to suit you.

And because some clients cannot make the difficult choices a criminal prosecution requires, a lawyer needs always to be prepared to try even the hardest case. Some days the fight is all we have to offer. It is enough for me. I worry, sometimes, that the law fails defendants, however.

It's All A Matter Of Perspective ...

2010-09-05T14:51:00.001-04:00

I often marvel than I escaped Detroit and am living now in tranquil Connecticut. Life was scary in the Motor City. I am happy to have outrun parts of my past,

But not everyone I know has been so lucky. I have friends who didn't make it. I have a friend or two doing serious time for one thing or another.

Someone I know doing life without possibility of parole sent me a long letter the other day. Here is how it ended: "Be careful out there. I continue to be thankful many days that I am in here where I don't have to deal with some of the goings on in the news."

Scenes From A Courthouse Or Two

2010-09-05T09:03:00.038-04:00

Getting into a criminal court is very easy for defendants. Look at someone funny, and get arrested for breach of the peace: lawmen will strip you down, cuff you, and shuffle you in through the back door. But suppose you are a lawyer, a juror or a loved on coming to view the proceedings? In that case, you come in through the front door, and that means you must clear the metal detector.

I am all in favor of courthouse security. Court is an often crazy place. The emotions released by litigation are rarely positive. Find a deadly sin, and watch it walk the halls of a criminal court. I want the marshals watching my back.

But just how dangerous is a good-looking young woman wearing a little too much jewelry?

It was hotter than a Haitian barbecue in Hartford, Connecticut last week. Bright sun, high temperatures and high humidity gave the city a tropical feel. The cool air conditioning of the courthouse was an oasis I sought eagerly after a lunchtime walk. There was a long line to get into the court.

I hate lines. In my version of Hell, I will wait forever with a group of gum-popping loudmouths before being admitted to no place in particular. But I view waiting as an occasion to work at being graceful; I am at least that much a Puritan.

The line at the door did not move. The Sun was hot. I was due in court to resume jury selection. Screw graciousness, I craned my neck to see what the hold up was.

A young woman dolled up and looking like she was heading for a night on the town stood at metal detector. A marshal was prowling through a purse large enough to serve as a mobile homeless shelter.

"Walk through he metal detector again," she was told. Three sets of eyes followed her as she swayed through. When the detector beeped again, folks in the line sighed; the marshals were looking all right. It was too hot for those of us in air conditioning to enjoy this epic.

"Take off your belt," a marshal said. As she removed it and walked through a detector that beeped yet again, I lost my patience. The three marshals stood debating what to do. Folks standing on line were now muttering aloud.

"Just ask her for her damn phone number and get it over with," I said.

In short order, she was determined to be no threat to security, and we were admitted to court. I don't know if anyone got a phone number. I've been to court thousands of times and never saw a stand off like that. Perhaps it was just the heat.

---

I stopped in a courthouse in New Haven one afternoon to interview a witness I intend to call in another case. I stopped outside the courtroom of a popular judge, hoping to pop in to say hello.

There was a metal detector on the sixth floor of the court. How odd, I thought. Normally, one at the front door downstairs is enough. Then I noticed a can of white paint and a paint brush near the door. A metal detector, a touch up? Since when did justice need a face lift? Was a Picasso going on display?

Then I spotted the telltale sign: The name on the courtroom door had been changed to that of the judge presiding over the case of Steven Hayes, one of the men accused of slaughtering the Petit family in Cheshire in 2007. The trial, it seems, has been moved to the building's largest courtroom.

That makes sense. I recall trying a notorious case in that very room five years ago. There were plenty of spectators at that trial.

But no one touched up the painting for my defendant. Someone in Judicial is playing Potemkin. I wonder if they will be passing out seat cushions at the door?

---

The woman sat in the front row as the judge told them about the case. When he told them the charge was murder, it was if a granite curtain fell. Her eyes grew cold, and she seemed almost to stiffen. I was at once wary of her as a potential juror, although I could not say why.

When I stood to tell the group my client's defense was self-defense, I stole a quick glance at her. She scared me.

Later in the day, when it came time to interview her for jury service, she sat alone in the witness box. Before the questioning could proceed, she told the judge her daughter had been murdered a decade ago. No killer had ever been arrested. "I will never get any justice," she said, in a tone so mournful it felt as though her daughter's grave had opened in the very courtroom, releasing a wandering soul in search of rest. The woman cried, childlike.

We all sat, stunned into respectful silence. When she left the room, all of us sat quietly for what seemed like a long time. Nothing could be said. Nothing could be done. The coldness I had seen in her eyes had overtaken the room. For an instant, we all knew the horror that had become a permanent part of her life.

The Good Harvest

2010-09-04T14:55:00.001-04:00

There is a season for everything, and this is the season of plenty. We are carrying armloads and baskets of produce from our garden and freezing enough to feed a small army, well, actually my wife and I, for a good time to come. Indeed, this is the first year I have succeeded in getting pumpkins past a killing fungus. We've got a couple of monsters who beat the others to punch sitting on the floor of our sun room now. In a few weeks, they'll make for roasted seeds and pies.

All this, and it is not yet Fall.

Every year we get a little better at gardening, but we've yet to have a completely successful year. We simply plant too much and run out of time as work intervenes to keep up with the weeding and pruning. For every three tomatoes we pick, one spoils. We've enough beans to bury feed ten Jacks and bury one giant. Today I started pulling carrots. They grow dense and deep in raised beds. I merely touched one corner of a bed to see what lay beneath the surface: we have enough to feed several horses, and, some years we do give carrots to neighbors to feed their horses.

It was a bad year for Brussels sprouts. I do not know why. The stalks are sturdy and tall, but nothing blossomed. I will soon pull the stalks and put the prepare the bed for its winter nap. A good friend's sprouts also failed. This is more disappointing to me than to my wife: she won't eat them when they grow; I, however, like the tart taste of a plant just this side of sour.

This year we grew ornamental gourds for sport. Lord, what sport the gourds have had with the garden. We harvested several today. One of them, a swan neck, stands three feet tall, a counter pose to the orange pumpkins next to which it sits.

CCDLA: A Call For Poll Of The Executive Committee

2010-09-04T09:24:00.001-04:00

I am a come-and-go member of the Connecticut Criminal Defense Lawyers Association. I say come and go because I from time to time quit in a huff about one thing or another. Just now, I am on the cusp of taking my dues elsewhere. But first, I would like some answers from the CCDLA executive committee.

Is it true that one of the executive committee members wrote to federal prosecutors urging a criminal investigation of a prominent Connecticut criminal defense lawyer? I am told that this is true. But I do not know it to be so. Rumor swirls right now about an investigation focused on the relationship between Waterbury State's Attorney John Connelly and Martin Minnella. A federal grand jury is pressing hard, reviewing files in the state's attorney's office and seeking to review records in Minnella's firm. I represent Mr. Minnella.

The other day, I asked the president-elect of the CCDLA, Jennifer Zito, to voice opposition to the federal government's decision to contact current and former clients of Mr. Minnella's. I do not know what the executive committee will do, if anything. But the scope of the investigation seems ominous to me.

But before the committee considers action on this topic, the committee should be polled, and each member should be asked the following question: Have you written or signed a letter to federal prosecutors suggesting or requesting that a criminal defense lawyer be investigated by federal prosecutors? Clearly, a "yes" answer to this question would disqualify the committee member from participating in any discussion of whether CCDLA should take a position on the investigation. It might also call into question whether the committee member should be on the committee at all.

The members of the Executive Committee are as follows: Conrad Seifert, President; Jennifer Zito, President-Elect, with a term to begin on September 16, 2010; Leonard Crone, Vice President; Moira Buckley, Secretary; John T. Walkley, Treasurer. The association's parliamentarian is Richard Emanuel.

I have been told by several sources that a committee member played a key role in initiating an investigation of Minnella. Before I pay another set of dues, I want to know if this is true, and, if so, what the committee's view of such conduct is. At a minimum, it seems that a leader in an association dedicated to serving the state's criminal defense bar has a fiduciary responsibility to the membership. Is that duty served by behaving as an informant for the federal government?

Most criminal defense lawyers take a dim view of confidential informants: we call them snitches, rats and other names. Some lawyers refuse to represent people who want to flip, or become informants. Is the CCDLA leadership harboring a snitch?

I really want to know the answer to this question. I am hoping the question can be answered by the next annual meeting on September 16 at the Mohegan Sun casino. If it's not answered, I may just put the question to the committee myself; I am, after all, scheduled to be a speaker at the meeting, so I know I will have everyone's attention, if only for a moment.

NOTE: The following comment was posted on another site and forwarded to me: Pamala wrote:

"For some reason I could not post a comment on the article website. What I want to post is this: The government likes to float red herrings. I think this is one of them. The government has no use for the CCDLA. This is a way to divide and weaken the organization. Why not name the sources in the same way the Board members have been named and accused? "

First, I am not the government. I am a member of CCDLA and I have no interest in weakening the organization.

Second, I have not accused anyone. I am asking for a poll of the board. If someone cares to confront a board member afterward, they can decide to come forward.

Finally, it is a legitimate question and should be answered. Obsfucation and blaming the messenger is not an answer.

Connecticut v. Texas: I Prefer Texas On Jury Selection

2010-09-04T08:45:00.001-04:00

A friend and I both began jury selection this past Monday. His case was in Texas; mine is in Connecticut. By Friday, he'd not only picked the jury, but had obtained an acquittal. (Congratulations to Mark Bennett.) By week's end in Connecticut, we were a little more than half-way through the process of picking a jury; we've budgeted another week to complete jury selection. (In January, it took 17 days to pick a jury in a non-death capital felony case; the trial itself took only two weeks.) What accounts for the glacial pace in Connecticut?

In Connecticut, we have the right to question prospective jurors one person at a time, outside the presence of all other panelists. The process has a fancy name: individual sequestered voir dire. In Texas, and in all other states and the federal system, the process of picking a jury is done on a group basis, with questions put to the group as a whole. I prefer the group method: you learn more about how jurors interact with others, it saves time and it is less expensive for clients.

Plenty of criminal defense lawyers in Connecticut disagree with me, including Gideon, a smart man with a heart of gold. But I am sticking to my guns: Connecticut should abolish individual sequestered voir dire as a matter of right. This time-consuming process of selecting a jury of one's peers ought to be reserved for extraordinary cases upon a finding of good cause by a trial court. Because no trial lawyer really trusts a trial judge not to abuse his or her discretion, I say permit an immediate appeal of a decision to deny a motion for individual sequestered voir dire.

I would not have moved for such a selection process in my current case. My client is accused of murder; his defense is self-defense. We tried the case a year ago and did not get a verdict. The lightning rod issues for Connecticut jurors include the fact that killing was accomplished with a gun. More folks have been excused for cause because of their deep hostility to gun possession than for any other reason. I wish, frankly, I could try this case in a state like Texas where gun ownership is, I suspect, not viewed as prima facie evidence of criminal intent.

I worked with a trial consultant not long ago to prepare for a case. The consultant is not a Connecticut resident. He suggested certain questions to ask during voir dire. "But those questions are clearly objectionable," I said at one point. "No matter," the consultant said. "You will have anchored the idea in the minds of potential jurors; it will also look as though the state is trying to hide something."

Such a cat-out-of-the-bag voir dire might actually work -- once. Gerry Spence, for example, is a master of the doleful eye roll. "I'm sorry, judge," he might say. "I didn't know you'd think it wrong to address this truth." That might work the first time, but when you see a different panel of jurors each and every day, you have no excuses on day two, three or four for gonzo tactics in voir dire. Individual voir dire paradoxically deprives the defense of great tools to educate a jury by means fair and foul about trial themes.

And let's not forget the matter of cost. It takes money to run a law practice. Divide your overhead by the number of days a week you work. My firm is larger than it should be, I suppose. I should charge tens of thousands of dollars for the time it takes to pick a jury alone. But who has that kind of money? A judge I know told me the other day that in his view the length of time it takes to pick a jury is killing misdemeanor trials: people plead guilty because on a cost-benefit analysis it makes more sense to pick up a minor ding on their criminal record that it does to take a second mortgage, if you can find a banker foolish enough to lend you money knowing full well you might be in prison when it comes time to repay the debt.

Picking two jurors a day is a good pace in Connecticut. Picking three or more is extraordinary. In most states, jury selection takes a couple of hours. Does anyone really believe the quality of justice is better in Connecticut? Perhaps Gideon does. But I have my doubts. I think I'd rather be in Texas.

Limousine Libertarians: Cato's Got Some Explaining To Do

2010-09-02T08:21:00.000-04:00

Tim Lynch of the Cato Institute sends me an email from time to time alerting me to a piece his think tank has published. I almost always find the pieces interesting, and I am grateful to Tim for thinking of me. Yesterday, when a piece arrived regarding indigent defense, I didn't open it right away. I sat there wondering how much Koch money went into the piece.

It is not that I regard the Cato Institute as sacrosanct. I suppose I knew someone had to pay the bills there. But last week's piece in The New Yorker, "Covert Operations: The Billionaire Koch Brothers' War Against Obama," was an eye opener. It felt like reading something out of Oliver Stone. Just behind the scenes there really are Oz-like figures manipulating the secret levers of American life. The Koch brothers, two of the wealthiest men in American, have staked their fortune in support of pressing a libertarian agenda.

Charles and David Koch earned their wealth the old-fashioned way: They inherited it. And through shrewd practices, they have compounded their wealth to an estimated $35 billion, one of the largest fortunes in America. Koch Industries operates oil refineries in Alaska, Texas, and Minnesota. It controls about four thousand miles of pipeline. The brothers own the companies that produce Brawny paper towels, Dixie cups, Georgia-Pacific lumber, Stainmaster carpet, and Lycra, among many other products.

God bless 'em, I say. Someone has to produce all this stuff. I often wondered who did so. I recall in high school being astounded by the fact of door knobs, and thinking that there must be billions of them in circulation on any given day. Turning one's mind to the quotidian task of churning out door knobs could make a man rich, I reasoned: One need only turn a small profit on each knob so long as one sold them in countless number.

I was never able to warm to the task of such pursuits, and wasted a youth in libraries, eventually gravitating to the law when it became obvious that a facility with words, fascination with ideas, and a desire to argue with my own shadow left few other options. Give me a case, almost any case, and I am happy to argue it. But for all that, I am no businessman: Making ends meet remains a daily struggle.

So I have a sort of Koch envy, I suppose, even though I do not actually want to be like the men themselves. Sure, they contribute lavishly to the arts, and to the upkeep of the New York Public Library. But they also spend tens of millions of dollars supporting political organizations espousing libertarian ideas. Calling them limousine libertarians isn't quite enough; these are the sort of fellows who read Ayn Rand's Atlas Shrugged and saw in it less a morality tale than a life's work. Call them Lear Jet Libertarians.

The closest I come to having a political creed is libertarianism, so I should be grateful to have such deep pockets supporting ideas I from time to time espouse. Hell, I've even entertained fantasies of seeking work at the Cato Institute, but doubt that I am enough of a team player to toe any party line.

But it troubles me to see big money trying to hide its tracks. Spokespersons for the Koch brothers seem less than forthcoming about the brothers' activities and financial commitments. The New Yorker piece went so far as to suggest that the Koch brothers helped engineer the Tea Party movement in order to generate grass roots support for ideas that typically are the province of a few eccentrics.

Transparency matters. I don't hold the Koch's wealth against them. But central to any version of libertarianism is a belief that individuals matter: The state is a legal fiction that often enslaves in the name of the good, true and beautiful. Yet individuals matter not just because the state is a fiction. There is a moral, neo-Kantian strain to liberalism: Individuals matter also because they are moral agents to be treated with respect. Playing hide the ball with wealth while preaching liberty and equality just plain smells funny.

The Koch brothers seem more than a little creepy; they seem like the sort of guys how plot assassinations and then make sure no one lives to talk about it. My mind kept turning to Oliver Stone's film on the JFK assassination as I read about the Koch's; I suspect my reaction was not idiosyncratic.

So I have yet to read the piece on indigent defense that Tim Lynch sent me. I can't quite get past the sense that someone with money to burn is trying to manipulate me, and that they regard the product of the think tanks they support, which, by the way, includes the Cato Institute, as mere propaganda. I don't care to be the dupe of plutocrats.

The Cato Institute owes those to whom it sends material a statement about the extent of support and control the Koch clan exerts over their daily doings. I still love the guys at Cato. I just need to know how that lipstick got on their collar. I'll even forgive a fling, so long as the prurient lips are honestly described.

The Grand Inquisitor Comes To Connecticut

2010-09-02T00:10:00.000-04:00

There was quiet rumbling in the office of the United States Attorney when the new regime seized power. “Beware the Southern District,” some folks whispered; “lawyers feed on their own in Manhattan.” There is an ambitious new kid on the block. David Fein, Connecticut’s new to federal prosecutor, was said to be a man on a mission: He was going to come marching into office smelling of Hellfire and brimstone.

I guess this Greek chorus got it right.

Fein’s one of those squeaky clean sorts of fellows with a resume that glows in the dark. He worked as associate legal counsel in the Clinton White House, and spent about six years in the U.S. Attorney’s Office in the Southern District of New York. He revolved through the doors of several status firms, Cravath, Swaine & Moore, among them. He then landed at Wiggin and Dana in Stamford, where he flourished, reportedly earning $1.8 million at the firm in 2008.

But trial experience has been hard for him to come by. The Department of Justice webpage introducing him as Connecticut’s new top prosecutor has this to say: “He has “tried approximately 15 cases … to verdict, of which he was chief counsel in approximately 10.” Let’s just say he’s not good with numbers.

He has been on tour in the state, reporting his agenda: he cares about public corruption and financial fraud. I’m also told he cares about the next rung in his career. With a net worth of more than $3.5 million, he is set for life. So why not strike high and hard? Perhaps ride the rocket docket of destiny to a judgeship or Washington by the end of the first Obama term.

I heard all this chatter from folks close to the office and listened with an impish interest. But I didn’t take the talk all that seriously. There are winners and losers in every pyramid. There is room at the top for but one. Perhaps what I was hearing were the sounds of sour grapes being mashed.

Then I learned that the U.S. Attorney’s Office had dropped yet another line in the fetid waters of a place called Waterbury. Why not topple a prosecutor, and bring down a defense lawyer for the ride? Hey, perhaps we can even topple a judge or two? When I got wind of this investigation I shuddered. This could be just the ticket for an ambitious prosecutor.

But still I was not persuaded that the legionnaires at Justice would come marching on orders from Washington to despoil the bar.

I believe it now. And here’s why. A client of mine, Attorney Martin Minnella, just received a grand jury subpoena. Among the items requested are a complete list of his clients for past six years together with the fees he was paid for representation. The subpoena even asked for the non-privileged portions of certain client files. Has Mr. Fein decided to go fishing with his 23 new buddies on the grand jury? Will he be fishing in your firm records next?

The grand jury was supposed to be a tool to protect ordinary people from the antics of government officials. The theory was that secrecy protected the parties investigated from the damage public accusations can cause.

The grand jury has become an investigative tool that works in secret, obscuring its purposes even from those whom it is intended to protect. When I have called prosecutors to ask about the scope of their inquiry, I am told these purposes cannot be revealed. Let me get this right: To protect my client the government sets about secretly to destroy him?

Welcome to the brave new world of lawyering in Connecticut. Your records and files can be summoned at will by a Government that believes it must protect you from its suspicions about you. This is the specious reasoning of a tyrant.

Of course, we will file a motion to quash this new subpoena. I do not know to what judge the motion shall be assigned. I hope the judge hearing the motion will have a question or two for Mr. Fein’s office. Among the questions is what view, if any, does the Government hold of the scope of the attorney-client privilege? I, for one, have more than one client who would not want the Government to know that they had paid me a fee to remain under the radar.

What role will the Court play in supervising the antics of the new, improved office of the Grand Inquisitor?

Reprinted courtesy of the Connecticut Law Tribune.

Lights, Camera, Kill!

2010-09-01T04:01:00.001-04:00

I have my doubts about whether Steven Hayes can get a fair trial in New Haven, Connecticut. He stands accused, after all, of the horrifying rape and murder of a physician's family in the affluent bedroom community of Cheshire, located just north of the Elm City. He and a co-defendant were caught fleeing the scene. Press reports reflect what appears to be a mountain of evidence against the two men. Trial seems like a formality.

At least the guilt phase of the trial seems like a formality. The real drama in this case arises from the decision the jury must make on whether to kill Steven Hayes. It will take a legal miracle to prevent that from happening. Well-placed sources suggest that among the evidence to be introduced at trial are text messages and photographs the killers sent to one another from different parts of the house as they went about their grim business.

Preventing this trial from devolving into the work of a lynch mob has been the work of Superior Court Judge Jon C. Blue. He has thus far succeeded in avoiding the Lance Ito syndrome that transformed the O.J. Simpson trial into a passionate farce. Several months of jury selection were orderly and, by Connecticut standards, efficient. (Why we require individual, sequestered voir dire in the state is a mystery to me; there is no evidence this wasteful process yields a higher quality of justice. The practice merely makes a long wait for trial in the state the norm; in many cases in Connecticut it takes far longer to pick the jury than it does to present the evidence.)

It takes a lot to get a Connecticut jury to kill. This isn't Texas or Florida; you don't see gun racks on cars, and folks here are generally wary of firearms. Indeed, I cannot recall the last time a New Haven jury decided to kill anyone. Passions will have to be stirred to just the right pitch to put jurors in a killing frame of mind.

Dr. William Petit, Jr., intends to do his part to see to it that Hayes is killed. Dr. Petit is the sole survivor of the home invasion. Although savagely beaten and left for dead, he managed to walk out of his burning house as his wife and children lay dying and the killers drove off. His miraculous survival comes, no doubt, laced with a savage case of survivor's guilt. Dr. Petit's rage is well founded.

Since the murders in the summer of 2007, Dr. Petit has become a veritable rock star of rage; he's the state's prime cheerleader chanting "Kill!, Kill!, Kill!," from the sidelines. And no one dares seek to stop him. When he arrives at the courthouse, he is flanked by reporters. A public relations firm guides him, helping to calibrate his message. He has political power. When the governor vetoed legislation repealing the death penalty, she referred to the Petit case. When Petit complains about how long it takes to get a case to trial in this state, the press reports his opinions. He all but gives press conferences on the courthouse steps.

It says something dark and disturbing about American mores than we glorify victims and pay them the heed due celebrities. Does any other society defer in almost hush tones to the most disturbed person in the room? I suspect in most places around the world, Dr. Petit would be pitied, and seen for what he is, a man broken by grief and consumed by a rage than nothing can slake. But why, in the United States, do we make heros of victims? Why is there an Adam Walsh, a Nancy Grace, and now, a Dr. Petit -- folks who transform private visions of Hell into near celebrity status?

The lawyers defending Steven Hayes this week asked the Court to place some limits on Dr. Petit. As a private citizen, the doctor has a First Amendment right to speak. Lawyers in the case, however, have been muzzled by a gag order, a murky and questionable power the court retains over them as offices of the court. But Dr. Petit is no stranger to these proceedings. He is a victim, and under our state constitution, a victim has a right to be heard. But why are victims given rights without attendant responsibilities? Sure, Dr. Petit has a right to heard, but it has no right to transform these proceedings into a circus of rage. With rights, we say to children, come responsibilities.

Thomas Ullman, lead counsel for Harris, complains that Dr. Petit is getting special treatment in this case because he is a white, upper middle class professional. Had the victims in this case been a poor black woman and her kids, the case would not be a media event. Of course, Ullman is right. This was rape and murder in the closest thing most Americans will ever get to Eden: an upper middle-class, white bedroom community.

If Judge Blue is reluctant to limit Dr. Petit's grief work on the courthouse steps, he should lift the gag order limiting what the lawyers defending Hayes can say. The right to a fair trial is too important to permit the court to become complicit in the work of a Grey Poupon lynch mob. Let the lawyers address Dr. Petit's tragic bloodlust in a forum equal to that which the doctor enjoys. Permitting doctor Petit to play sniper in these proceedings is uncalled for.

Dr. Petit is a tragic figure. But he is not a hero. His grief should be placed in perspective, and his point of view appreciated in the context from which it arose: the horror, rage and guilt of a man who walked away as his family was slaughtered. His is the last voice should heed in deciding what justice requires. Leaving him alone on the courthouse steps to hold press conferences transforms the pursuit of justice in the sort of ratings war Lance Ito would have enjoyed.

Who Is Talking To Your Clients?

2010-08-30T08:01:00.002-04:00

If you have ever tried to get the personal address of an FBI agent in an ongoing criminal case, you know what futility means. This sort of information is kept confidential. It is personal, off limits, and even asking for the addresses will yield a storm of consternation. I used to accept that as part of the process.

But then I learned that federal agents are now working through a list of clients represented by a Connecticut lawyer. Most of those interviewed are former clients. But, ominously, some of those interviewed are current clients. This intelligence shocks me, and suggests a bold new aggressiveness on the part of federal agents.

The interviews are taking place as part of a federal investigation of whether a Waterbury defense lawyer, Martin Minnella, has developed too close a relationship with a prosecutor, State's Attorney John Connelly of Waterbury. (Disclosure time: I represent Minnella.) The focus of the investigation seems to be whether Connelly received gifts and/or other things of value in exchange for favorable consideration of Minnella's cases.

So agents have been active in the state's prisons and residential neighborhoods. They are asking clients why they chose Minnella, how much they paid him, how they paid him, and whether he offered them assurances of an outcome. Some of these questions are clearly privileged, so I would like to think that the agents are reminding people that the attorney-client privilege is theirs to waive. But I suspect agents aren't so fastidious. Odds are, they are bulldozing their way into people's lives, trying sugar first, and resorting to spice when sweetness fails.

This is the first time I have become aware of federal agents systematically working their way down a list of a lawyer's clients, and I find the practice shocking. I sat next to the incoming president of the Connecticut Criminal Defense Lawyers Association the other day, Jennifer Zito. I urged her to action. I called the president of a sister organization and urged him on, too. Folks don't seem to be as shocked by this as I am.

Perhaps I am naive. But it seems to me that granting agents easy access to clients and former clients is over the line. I can understand an interview if a client reaches out to the feds, but permitting the feds to fish in our own backyards without so much as a protest is giving up too much without a fight.

Do you know whether the feds have been to your client's cell or home lately? Do you care? Is the defense bar asleep at their desks? Or are we all so busy being buddies with the government these days that these things don't matter?

Question: Do you know the home addresses of the agents working your client's case? How do you suppose those agents would react if your investigator turned up at their home some night to ask questions about their conversations with the prosecutor?

Anatomy of a Murder: Teaching by Exaggeration

2010-08-30T07:30:00.000-04:00

A friend recommended several films as classics about trial, so my wife and watched one of them over the weekend, Otto Preminger's, Anatomy of a Murder. The film won seven Academy Awards in 1959, and is based on the book by Robert Traver. (You can get a used copy of the book on Amazon.)

I find it almost impossible to watch a movie involving trial scenes. The real work of trial is slow, methodical and precise. There are evidentiary foundations to be laid, voir dires to conduct, rules of evidence constantly at play in a multi-dimensional game of something like chess. Watching another lawyer try a case, if you do not understand his strategy, is like watching ice melt. Watching a producer's idea of trial on film is like watching a field hand conduct surgery.

But I am old enough, finally, to have tried all the techniques in my bag of tricks many times. I am eager to learn how to become a better tryer. Why had this film been recommended to me? I watched eagerly.

The defendant is represented by James Stewart, a man who could play a sympathetic serial killer. He exudes a homespun sort of decency that makes you predisposed to like him. One of the defense lawyers was played by a very young and oh-so-slick George C. Scott, a man so polished it hurt to watch him. The issue: whether an army lieutenant killed a man in a fit of temporary insanity after the rape of the lieutenant's wife.

I hesitate to recommend this movie to youngish lawyers -- those who have tried fewer that 20 or 25 cases to a verdict. Doing what these lawyers did in a contemporary courtroom could well land you in the poky on a contempt citation. The lawyers give inflammatory speeches during their objections; they shoot sharp and lengthy barbs at one another again and again; the judge's admonishments are ignored. It's a great courtroom drama but it is, for all that, fiction. I'd hate to see some young stud defend himself against a judge's present day wrath by stammering, "But Jimmie Stewart did it."

But for all its exaggerated form, the movie does teach a great lesson: The art of trying a case is in telling a story. And sometimes the telling of a story requires drawing objections. This is the lesson an old lawyer learns watching the film.

Trial preparation is thinking. In the days and weeks leading up to a trial, a good lawyer is engaged in something like a non-stop internal monologue. Each fact, good and bad, material to the case is weighed and assessed from a variety of angles. How to meet the so-called bad facts? How to present the good facts in the most favorable and persuasive light? And always and forever the constant weight of the code of evidence. What is admissible? Why is it admissible? How will you meet your adversary's objections? What traps lay waiting for the unwary? What snares can you lay to entangle the other side?

I don't think lawyers take the evidence code seriously enough these days. The stress on arbitration and mediation is making dull tools of trial lawyers. When it's all kumbaya and sweet reason in the forum, forgive me if I yawn. Cases are won and lost based on evidentiary rulings: That's why there are so many reported appellate decisions.

In Anatomy of a Murder, whether the lieutenant's wife was in fact raped or was a strumpet on the prowl became a centerpiece of the trial. The state constructed a theory of the case that made it irrelevant, and then gave the theory up by opening evidentiary doors through sloppy questioning. Once the doors were opened, the character of the defendant's wife was on display in a manner that would not quiet suit the tender sensibilities of the rape-shield era.

What makes the film worth watching, however, was the manner in which both sides asked patently improper questions designed and intended to anchor themes in the minds of the jurors. Once such a question was asked, the other side predictably objected, and in the course of the objection reframed the issue at hand in the manner intended by the party asking the question. Here's an example: Question: And when you went out on prowl at night did you wear panties? Objection: The use of the word prowl is improper, and this case isn't about what the witness did or did not usually do. Court: Sustained.

This exchange told the jury plenty: The victim went out at night for questionable and furtive purposes. When she did so, she was dressed, or, as the case may be, not dressed, for questionable purposes. She's no longer a demure victim of a sexual assault; she is now a predator herself. The state drew an objection hoping for a response that would tell it's story. It was a brilliant move in a ham-handed Hollywood sort of way.

I once flirted with becoming a judge. I suppose it is a good thing that flirtation ended without success. Were I trying the case, I would have shut the lawyers down. No speeches. Questions patently improper would have drawn admonishments after a warning or two. The trial would not have become a sideshow. In Anatomy of a Murder, the real issue, whether the defendant was legally insane at the time of the shooting, got lost: Was the woman really raped? Of course, the answer to that question hardly mattered given the question presented. The state tried an incompetent case and was tricked into a dead end alley.

Therein lies the lesson for older lawyers. My fear is that as the hairs on my head gray, I have become increasingly conservative. Rather than thinking outside of the box, I reckon where the walls are before trial and then try to stay within them, to demonstrate my legal acumen. But since when is trial about anything other than the narrative at hand? Is time spent in silent struggle with evidence code time that could better have been spent constructing a narrative that persuades, and then finding the means to tell it, including the drawing of objections?

I think I know the answer to that question.

Check out Anatomy of a Murder. Young lawyers should keep an eye out for the technique of anchoring themes and reframing topics through an explosive question, but realize this is Hollywood. Older lawyers should be wary of the dead hand of legal doctrine: don't try your case so well that you leave the gripping story in the hallway. Trial is part passion, part learning: finding just the right mix is what makes the life of a trial lawyer the sort of intellectual combat that keeps you forever young.

The Coming Insurrection: Glenn Beck Deciphered

2010-08-28T17:00:00.002-04:00

A geriatric army marched on Washington, D.C. today and tried to appropriate language long since deprived of its historic force: Glenn Beck is no freedom rider. The civil rights of the aggrieved white upper middle class don't carry the blood stain of centuries of slavery. That anyone would think the Tea Party's petite rage can fill the outsize wine skin of Martin Luther King's passionate rhetoric is obscene.

But some good did come of today's political theater. It highlights the extent to which old forms are dead. A restless and disconnected people don't know where to turn. So they turn to yesteryear's theater to adopt a role, a pose. Absent any compelling new narrative to capture their lingering sense of malaise, they turn to an irretrievable past. Can anything better and more poignantly reflect the extent to which American politics has become sound and fury signifying nothing?

There is a legitimation crisis in the United States. Our politics and politicians are morally bankrupt. Consider the lead paragraph in this morning's New York Times regarding New York Governor David Patterson: "A thoroughly honest politician has pretty much always been considered an undiscovered specimen." How easily we assume that to be a politician is to be a liar. And yet we prosecute the liars we elect without irony. Does anyone really believe the rhetoric of the political elite? I suspect few do. We expect them to lie, and so they do. We expect them to lie because we have little or no sense of a shared truth.

I stumbled upon a little book I urge all of you to read. Its author is unknown. It is called The Coming Insurrection. The book was published in the United States in 2009 by Semiotext(e), 2007 Wilshire Blvd., Suite 427, Los Angeles, CA 90057. The author is called, simply enough, The Invisible Committee. (The publisher's web site is www.semiotexte.com.)

First published in France in 2007 as L'insurrection qui vient, the work is steeped in Sartrean and post-Marxian dialectic that makes for sometimes hard reading, especially in translation. Yet its assessment of a world in which politics and power are divorced from the
ordinary lives of people is compelling. "The business of voting and deciding a winner is enough to turn the assembly into a ... a theater where all the various little pretenders to power confront each other." Amen. Glenn Beck, Sarah Palin, Richard Blumenthal, Antonin Scalia, Barack Obama -- all tossing words into a void, hoping that something will stick. "From left to right, it's the same nothingness striking the pose of an emperor or a savior, the same sales assistants adjusting their discourse according to the findings of the latest surveys."

Politics, The Coming Insurrection argues, is passe. History doesn't end, institutions end. Their death sigh is observed in the widening gap between the rhetoric and reality of political life. Do we speak of freedom? "Freedom is no longer a name scrawled on walls, for today it is always followed, as if by its shadow, with the word 'security.'" What remains when rhetoric fails is the lived experience of those without rhetoric, possessing only the means, however limited, to act not in the name of mere survival, but in the joyous, almost Nietzschean spirit of overcoming. (I told you, the book is not easy.)

The dominant spirit of the age is the easy condescension of the raconteur: "[I]t's the eye-rolling or the wounded indignation at anyone who's stupid, primitive, or presumptuous enough to still believe in something, to affirm anything at all. You can see the dogmatism of constant questioning give its complicit wink of the eye everywhere in the universities and among the literary intelligentsia. No critique is too radical among postmodernist thinkers, so long as it maintains this total absence of certitude."

This is dangerous reading. The future, and there will be one, even its shape is not foreseeable, belongs to those who can find life and creative energy in new, as yet scarcely recognized forms. Think how troubling the world looked to the Roman elite in the late fifth century: there was new life in the manor and in the monastery, a life that had yet to emerge and be known.

What new form lingers in the shadow of our decay? Is this form the commune? "The commune is perhaps what gets decided at the very moment we would normally part ways. It's the joy of an encounter that survives its expected ends." Put another way, the commune is connection after the ends of utility have been served. I am reminded of Cicero's definition of a commonwealth: a collection of people bound together not just by common interests but also by a shared sense of right. New communes arise daily all around us. I observed one the other night in an after-dinner gathering of friends in a small-town restaurant: the people there rejoiced in one another's presence. Who rejoices any longer in a public forum?

The American Century has ended abroad, and the rhetoric of American politics no longer matches the lives of most Americans. Glenn Beck's play-acting appeals out of an act hunger that must be served. He is a caricature energized by forces seduced into playing at politics when politics no longer matters. But as the Sun sets tonight on Washington the loud clanging of Beck's mordant cymbals already grows faint.

The Coming Insurrection is a dangerous book. It is a centerpiece of the French prosecution of nine individuals accused of terrorism. Indeed, the French government has called it a manual for terrorism. It is no such thing. The Coming Insurrection is a simple book about dangerous times. Read it, I tell you. Read it and ask yourself whether a little revolution now and again isn't a good thing.

Glenn Beck is a sign of a revolution, but he is no revolutionary. He is yesteryear in effigy. Anyone got a match?

Some Questions About The Prosecution of Omar Khadr

2010-08-28T11:26:00.001-04:00

Was anyone really surprised that 15-year-old Omar Khadr was lied to and threatened with what amounts to sadistic torture by U.S. interrogators? Our courts condone police lying. Police departments tolerate it. Officers do it all the time, and then lie about doing it. Only defendants are held accountable for lying.

What surprises about the Khadr prosecution is that the interrogators admit lying. Therein lies the difference, I suspect, between the civilian and military justice system: In the military, officers who lie under oath can be punished severely. Few would dream of punishing a lying cop.

Khadr was captured by U.S. troops in Afghanistan and is accused of throwing a hand grenade at a U.S. solider, killing Army sergeant Christopher Speer. That was eight years ago. Khadr, now 23, is set to face trial in the first case to be tried before the Guantanamo Tribunal.

While the boy solider was being interrogated years ago by a burly he-man of a intelligence operative, he was told that another young man who had not been forthcoming had been sent to an American prison where he died after a gang rape. Presumably, this implied threat loosened the lips of Khadr. His words, no doubt, will now be used in the effort to condemn him.

My clients often tell me of threats being made to them by civilian police officers. When officers are confronted on the witness stand with these allegations, they routinely deny them, often times feigning great insult that anyone would accuse them of such a thing. The police are no doubt afraid that civilian jurors would disapprove of such thuggery. The reason police have a policy against tape-recording interrogations is so that they can lie about what goes on behind closed doors.

In the Khadr case, the trial judge was not offended at all by thuggery. Threatening a boy with gang rape was not so coercive as to render his confession involuntary, no, not at all.

What astonishes about the Khadr prosecution is that the interrogator admitted behaving like a two-bit punk. I suspect that was because in some fundamental respects the military justice system is superior to its civilian counterpart: Military officers found to have lied to superiors can be court-martialed, dishonorably discharged or even imprisoned. There is an honor code in the military that imposes a requirement to be truthful. Our civilian police departments too often give only lip service to the truth. That's why scholars write about the phenomenon known as the blue wall of silence. Ask Frank Serpico about what happens when you violate that code.

The Obama administration is rightly concerned about international reaction to this the first of the Guantanamo trials. Just why we are prosecuting the boy in a military tribunal is not at all clear to me. If the child cloaked himself in the garb of a soldier, and we are truly at war with terror, then why a trial at all? Don't combatants aim to kill one another? A war against terror is a war against a shadowy non-state entity peopled by non-conventional soldiers. Just what is it that we are trying to prove with this trial?

If the claim is that the boy is a civilian then why try him in a military court? We look like a cowardly giant placing a kid on trial in a kangaroo court while simultaneously thumbing our nose at the International Criminal Court. If this boy attacked us because we have declared war on something he cares to defend, then how does a military tribunal gain jurisdiction over this civilian? Shouldn't this really be a matter of international law? Trying Khadr in a military tribunal looks a lot like Mafia chieftans convening to pass judgment on the lone Irishman in their neighborhood.

Someone enlighten me about why this improvident prosecution is taking place. I just don't get it.

"Injustice Is Where Hopelessness Prevails"

2010-08-27T08:20:00.000-04:00

On Monday, I'll start jury selection in a murder case I tried for the first time last September. The jury could not agree unanimously on whether my client was justified in shooting two women who rushed at him in his kitchen. So we'll do it all over again. As is so often the case in Connecticut, I expect jury selection to last longer than the evidence. It will take two weeks to pick the jury; evidence should take six or seven days.

Preparing for this trial has been an exercise in humility. It is painful to read the transcript of your own work. I've winced, thrown transcripts aside in disgust, and tossed and turned at night trying to reconceive the trial from start to finish. A good friend has helped me by reading the transcript; his critique has from time to time stung. But I have done my best to listen. Listening is hard work for me.

What I have yet to do is prepare my client for the retrial. I am not sure how to do that. How does a man watch the worst moment in his life replayed frame by frame before strangers? How do you sit silently and still when you are attacked, scorned and ridiculed by a prosecutor? How to accept the fact that 12 strangers will now make a judgment about a split second or two they have never, and may never, experience for themselves? The answer is simple yet so very difficult: You walk them throw the valley of the shadow of death; that valley exists in each of us, just beyond the threshold of what we see.

Self-defense is a hard defense to the charge of murder. You ask the jury to conclude the killing was justified. And you do that as the family of the dead sit staring daggers into you. It is a difficult journey, taking strangers to the secret place we all harbor where killing is done not out of joy but of sad necessity.

Trial is tense, and I meet tension too often with dark humor. There is nothing funny about the death of another. But the heavy silence of a courtroom in such cases is the moment before a heart stops beating. I've turned at such moments to clients to say something to distract them from the pain. Too often we've smiled together at some inane aside.

Prosecutors have called a client or two of mine on this during their closing arguments. "The defendant smiled here as the evidence was presented. He has shown and shows now no remorse," they will intone. I've heard those comments and fumed. Does the state now claim the right to dictate even the demeanor we must show as it tries to slay us?

I'm a born contrarian and a approach the simplest of tasks in a fighting frame of mind. Hell, I'd argue with my shadow if I could get it to talk back. There has to be a better way to do just about anything, and rarely is reality the sum of that which simply appears. My favorite figure in literature remains Milton's Satan in Paradise Lost; Yes, the battle may be pointless, but the effort is all. Defiant unto death seems about the right attitude. Or, to put it another way, once I see the freight train coming, if there is no time to step aside, I'll lunge to greet it, hoping to dislodge it from the tracks. There's no point in running, and simply waiting for the inevitable. Attack, attack, attack has become a way of life for me.

All this and more flooded into my mind in an instant as I read a short piece written by Jeff Gamso this morning. Gamso is the high-priest of criminal defense lawyers writing on the life the mind as it confronts the brutal realities of the law. He attended a seminar not long ago. "Injustice is where hopelessness prevails," the speaker said. I might recast the line just a bit to make it fit my emerging sensibilities: "Despair is where hopelessness prevails." Despair is, in my view, the deadliest of the Seven Deadly sins. A criminal defense lawyer cannot despair; there is fight in ever gesture a lawyer makes in defense of a client.

But how to retain hope amid the horror of autopsy photos, tears and fear? Perhaps Satan's sin was the open rebellion, the defiant posture? Perhaps dark humor is less anesthetic than concession.

Read Elaine Pagel's The Gnostic Gospels, my friend told me this summer. "I read it years ago," I snapped, ever too eager to demonstrate my learning. What a pointless display of pride in that simple response of mine. So I reread it. The kingdom of heaven might just be at hand but never arriving. Looking outward for signs and portents is looking away from the kingdom emerging within. Looking within to find the source of righteousness is hard and painful work; pride distracts. Looking within, embracing sorrows, becoming acquainted with grief, peering with an unwavering glance into horror: these are almost spiritual exercises I must learn and somehow teach my client in the hard confines of a courtroom.

Tell me, truly, what are we taught of the care of souls in law school? The hardest truths we must learn and teach on our own, speaking with lips unclean from having uttered so many scorning and mocking words. Trial now beckons as a circle of Hell. And Hell is no laughing matter ...

In Memoriam: Tony Perez

2010-08-26T17:33:00.001-04:00

When I heard the news some part of me stopped cold. A former client's sister called late yesterday. She had horrible news. Her brother, Tony, was murdered. Would I please return her call? She needed to talk. I heard the message this morning. Getting to court suddenly seemed less important than talking to Tony's sister.

Tony Perez was sentenced to multiple life terms after a trial on federal murder for hire charges. The federal government elected not to seek death. In the government's view, he was a lieutenant in an organization headed by his brother. The two men were convicted of conspiring to have a rival shot to death. The shooting was in retaliation for another gang's kidnapping and torture of a trusted friend.

Tony was a heroin addict of limited education. He knew the stakes at trial were enormous. From the day I met him until the last time I spoke to him, he insisted that he was merely present as the hit was planned and executed. He did not know it was going down. He'd follow his older brother anywhere, even to the gates of Hell. But he was no killer.

The jury rejected the defense of mere presence. There was a suspicious phone call moments before a man was savagely gunned down on a busy Hartford street. There was motive aplenty. The government introduced dangerous looking guns and big bricks of cocaine, together with photographs of my client always at his brother's side. He was more than a mere sidekick, the government argued.

When Tony was sentenced, the judge imposed multiple life terms. Those terms were imposed consecutively, meaning, somehow, that once one life term was satisfied, Tony would be required to serve another. She tacked on several score more years for good measure. She wanted to make sure he never walked our streets again.

"What does this sentence mean?" Tony asked as the judge left the bench. I resorted to gallows humor. "It means that once you die, the government has to revive you to start serving another life term. Otherwise it is an illegal sentence."

Tony looked at me for a moment, unsure whether I was kidding. Then he smiled. He hugged me and then turned to say good bye to his family. It was a bitter moment, the sort of moment you learn to bury and then avoid in the practice of criminal law.

His sister reports that in the past seven or so years, he'd kicked his drug habit. He was healthy, clean and looking forward to transferring to a prison closer to home. The family hoped he would be incarcerated with his older brother not far from Connecticut. "You should have seen him," the sister said. "He looked good."

I'll be at his memorial service on Monday. It is hard to believe he is dead, although I cannot honestly say I wish he had the chance to begin serving the second of his several consecutive life terms. Prison seems pointless. His life was hard, except when he smiled. It is his smile I will remember.

A Shameful Squeeze In Waterbury

2010-08-26T03:43:00.006-04:00

The law of supply and demand influences almost everything, including legal services. There is only so much chaos to go around. In a bad economy, few clients can afford the legal services they need. Lawyers straining to makes end meet may resort to sharp practices to gain competitive advantage. Sadly, that means some lawyers will disparage other members of the bar.

Such disparagement can get you sued for defamation or other torts. So most lawyers are careful about what they say and how they say it. But there is a forum that makes such disparagement risk free: Whisper into the ear of a federal prosecutor, and suddenly your words are cloaked in either the law enforcement privilege or grand jury secrecy.

Consider Connecticut’s own rotten borough, the City of Waterbury. Federal prosecutors have toppled and imprisoned several of the city’s mayors. They have deposed and imprisoned a governor hailing from Waterbury. And now federal cross hairs are fixed on the back of State’s Attorney John Connelly. To get to Connelly, federal investigators have placed one of the City’s most successful criminal defense lawyers, Martin Minella, under a microscope. Marty’s competitors, fellow members of the bar, are jumping on this federal bandwagon hoping to grab a few new clients.

I represent Marty, so I write this without the detachment you might expect. I rarely write so directly and openly about a case I am handling. But I write about this case because I believe the investigation presents a clear and present danger to the bar of this state. I write to say to those among the Waterbury bar using the pending federal grand jury investigation of Connelly and Marty to settle personal and petty scores of their own: Shame on you.

Marty is a legend. At 62, he is no longer young, but he brings the zeal of a young warrior to every trial. Juries listen to him. He has won 17 of the past 18 criminal cases he has tried in to a verdict. As of today, he has 24 cases awaiting trial on the court’s serious crimes docket. He’s worked doggedly in Waterbury for decades. As a result, his practice thrives. I cannot think of another lawyer in Connecticut who can boast of Marty’s success with a jury in recent years, a fact which pains me to admit as I myself compete in the same market.

Although the Waterbury criminal court is the domain of Connelly, the state’s attorney himself does not try cases against Marty. They are, you see, good friends outside the courtroom. But, as anyone who has ever seen them discuss a case in a judicial pretrial will attest, they spar intensely in negotiations. Suggestions that Marty gets a break from Connelly or his office are ludicrous. One lawyer in Connelly’s office told me just the other day they try harder to beat Marty because he is, well, Marty. His earthy and almost irresistible jury appeal will someday earn him the nickname "My Cousin Marty."

Federal investigators have been fed a line by several disgruntled lawyers in town. The claim is that Marty has somehow procured favorable treatment from Connelly. Federal agents are scouring through tax records, credit card receipts and every record they can use a grand jury subpoena to obtain to try to show some quid pro quo. But they can look until the Republic collapses. There is nothing there. I sense they know this.

In the past week, the federal investigation has taken an ominous turn. Federal agents now appear to be working their way down a list of Marty’s former, and, potentially, current clients. They are asking questions. What did you pay? Why Marty? Did he promise you anything because of his friendship with Connelly?

When the agents don’t get the answers they like, the questions have from time to time turned mean, with witnesses being confronted with salacious allegations about their spouses. Veiled threats have been made. The prisons are aflame just now with chatter. Government agents are trolling the cell blocks looking for people prepared to say just the right thing.

All this is done under the cloak of secrecy, of course. My efforts to get information are met with stone walling. A grand jury is in place, you see.

Just when did the grand jury, an ancient device intended to stand between a citizen and a rogue government, become an investigative tool that could be resorted to by any fool with a chip on his shoulder?
Why, I keep wondering, are competitors of Marty’s in Waterbury so eager to chip away at the reputation of a man who worked for decades to learn to succeed? Don’t these lawyers realize what befalls Marty today awaits them tomorrow? Is jealousy so powerful a drug that it cannot be resisted?

Economics is often called the dismal science. But there is a science ever more dismal. It is the dark science of using grand jury secrecy to try to destroy a man. In Marty’s case the effort will fail. I will see to it. The effort is shameful and a discredit to the bar and the pursuit of justice.

Reprinted courtesy of the Connecticut Law Tribune.

Four Films and a Good Mentor

2010-08-25T08:19:00.000-04:00

Perhaps the most impressive lawyer I ever met no longer appears in court. But that does not stop me from seeking his advice from time to time. Remarkably, F. Lee Bailey is also a man of tremendous generosity. So I spent the afternoon with him yesterday talking about the law and life.

Talking with Bailey can be an ego-bruising experience: His career is unique in American law and letters. He has written widely and well, dabbling in fiction, writing popular books about the law and lawyering, and authoring practice aids in a wide variety of fields for lawyers. He's been involved in some of the highest profile cases of the past half century, too, ranging from the Boston strangler to, of course, O.J. Simpson. His is a household name throughout the country. Bottomline: When speaking with him there's no point trying to raise an eyebrow with a war story of your own. He's been there and done that, twice.

I find him an easier companion than Gerry Spence. Sure, both are great talents. Somehow Bailey seems to need less from those around him than does Spence.

At 77, Bailey now lives in Southern Maine. His mind remains sharp and incisive, and, although he is no longer practicing law, his insight on trial problems remains amazing. One of the great joys of talking to him about a case is that the evidence code remains so much a part of him that his assessment of the world cannot help, or so it seems, to begin and end with a candid appraisal of a fact's admissibility.

Bailey remains passionate about the potential use of polygraphs in criminal proceedings. I am somewhat dubious, but he is adamant. I left his home with a copy of a recent brief on which he collaborated together with instructions not to share its contents unless given permission to do so. I learned a long time ago that when he gives you something to read, you may as well just read the material before asking more questions. He tolerates ignorance well; he is a good teacher. He tolerates fools not at all.

Conversation turned at some point to the state of the American criminal bar. Bailey is a keen student of the game. He has so many facts and stories at his finger tips I wonder whether he ever sleeps. It may just be that his is a rare form of genius. What I struggle to learn he merely absorbs.

I am, of course, keeping the best parts of the conversation to myself. I went for advice on a few things, and came home amply rewarded for the pilgrimage. But I do have a little something to share. When he was in the business of hiring and training young lawyers, he used to insist that they watch four films on trial lawyering. Here they are: QB7. Anatomy of a Murder, Witness for the Prosecution and To Kill a Mockingbird.

His recommendation is enough to prompt me to watch them all. And the afternoon I spent largely listening reminds that I am blessed with mentors I do not deserve.

Grand Jury Abuse: Time For A More Aggressive Assertion of the Fifth Amendment?

2010-08-22T14:28:00.000-04:00

We've come a long, long way from the era of the founding in the United States. Federal grand juries, which were once a means of protecting people from the infamy attendant to being investigated for a crime, are now the secret tool of prosecutors free to rummage with subpoenas through virtually every area of your life. Fear of the unknown has become a prosecutor's best friend. Prosecutors play on that fear, claiming all the while that grand jury secrecy is sacrosanct.

Consider the following: Prosecutors reach out to talk to you. There are suspicions that you have broken the law. You retain a lawyer. Your lawyer speaks to federal prosecutors to get a sense of what's going on.

At this point, you have several choices. Obviously, if you are the target of such an investigation, you have every reason to want to know the nature of the allegations being leveled against you. You press. "Grand jury secrecy," the prosecutor intones and he says little. But this is really little more than self-righteous bullshit. You are pouring through the offal of my life and you must keep secret what you are doing to me? The history of the grand jury is rooted in a different source: A grand jury was supposed to protect a citizen against the abuse of government power. Today the grand jury has been transformed into an investigative Star Chamber.

It is not uncommon for lawyers faced with a pending investigation of their clients to attend what I call a "show and tell proffer." You sit with a prosecutor and a "special agent" or two of the FBI -- practice pointer, all FBI agents are "special." The government lays out in general terms the evidence that it thinks supports criminal charges against you. At this point, you can either respond to the claims or not.

If you choose to respond, your lawyer will insist that you do so under cloak of what is known as a proffer agreement. This is a contract. The government promises not to use your words against you; you promise to tell the truth. All best are off, however, if you lie. Then you can be prosecuted for making a false statement to federal officials. That's what happened to Rod Blagojevich. Making a false statement is far different from a perjury charge; your statement needn't be under oath, as is the case with perjury, it merely need be on some material fact and made to a federal official acting within the scope of his or her duty. The feds can often make something of nothing by scaring the wits out of a person at a proffer, and then prosecuting them for the lying when all else fails.

A story in today's New York Times reflects this nasty pattern. Barry Bonds will face criminal trial next year lying to a grand jury about his steroid use. (He was under oath then.) Roger Clemens will be prosecuted for lying to Congress about his steroid use. (He, too, was under oath.) Marion Jones, a gold medal sprinter went to prison for lying to investigators. And now there are reports that the Postal Service bicycling team, the star of which is Lance Armstrong, is under federal investigation and may face charges of fraud, drug distribution, tax evasion and money laundering. Expect a few counts of lying to be tossed in as well. As a general rule, and with few exceptions, it is wise to plead the Fifth whenever the government comes calling. There is no telling how your words will be used against you.

These prosecutions for perjury and false statement would be less frequent with a more transparent grand jury process. I am not suggesting that the grand jury should be opened to public view. What I am saying is that a process that was intended to protect citizens from over aggressive government officials should be open and transparent to those targeted for prosecution. Using grand juries to develop secret cases against folks and then playing hide and go seek with the truth when interviewing targets is obscene; it wreaks of Stalin, not Jefferson.

The early stages of a federal investigation are steeped in fear. A target hopes against hope that someone will listen. Sure, there is an inculpatory cast that be spun for the issues at hand. But considered fairly, the truth is far more complex. A target hopes that by being candid, the government will listen. But candor is a one-way street in this secret process. Too often, grand juries are used as secret tools to rebut the claims made by targets in proffer sessions. Frightened clients are inclined to trust and hope that a true word will deflect the secret ambitions of prosecutors looking for new scalps to mount on their totem pole. The temptation to waive the Fifth Amendment and speak at a proffer is great.

It cannot be good law to permit prosecutors to use secret grand juries to unearth awkward half-truths about a person and then not tell the person about these misperceptions while there is still time to avoid the train wreck and expense of a trial.

I am increasingly inclined to take a hard line about discussions with the federal government on my client's behalf. If the government is going to be coy about speaking the truth, then it seems prudent to consider seriously whether they deserve the right to speak to my client. Sure, the risks of silence can be great: misperceptions can yield a trial, with all the risk that entails. But I'd rather let a jury sort out the truth than play cat and mouse with a government that has turned the use of grand juries on its heads and has transformed the grand jury into a secret chamber of terror.

Don't grand jurors ever revolt and ask the prosecutors tending them behind closed doors why the other side isn't present to offer its point of view?

Liar, Liar, Dick's On Fire

2010-08-22T12:17:00.001-04:00

One of the hardest things about being married to a woman far smarter than I am is that I never really get to enjoy a movie: We'll be sitting there watching the plot unfold. About the time I sense that there is an issue to resolve, my wife has already figured it out and solved it. It happened last night, watching Roman Polanski's The Ghost Writer. I bear the burden of her genius with an admiration tinged with a smattering of intimidation.

So I take seriously her impressions of the Connecticut Senate race pitting Richard Blumenthal against Linda McMahon. Months ago, it seemed like a no brainer: Blumenthal may well be a media-loving pretty boy, but he has been a good consumers' attorney general. Let's send him to the Senate, I thought. He knows his way around the political process. Linda McMahon, by contrast, seemed like a caricature: another wealthy entrepreneur riding the outsider's wave of rage and discontent, Sarah Palin with a bank account. I was not prepared to send McMahon from the executive suite of the World Wrestling Entertainment to the Senate. Somehow the prospects of Hulk Hogan's mommy sitting in the Senate did not sit well with me.

But that was before Blumenthal was shown to be a liar about his Vietnam war record. Why would a man with a sterling resume feel the need to lie? If ever a man dripped credentials, it is he. His efforts to spin the catastrophe following revelation of his lies hardly inspired confidence. But the crisis passed, and I was prepared if not to forgive, then at least to try to forget the prospect of Fox Hole Dick's talking to his imaginary friends in the red glare of his hallucinogenic rockets.

Then came the recent revelation that Blumenthal has once again played stranger to the simple imperatives of truth-telling: He boasts of never having received PAC money. Yet federal records reflect he's taken almost $500,000 from PACs since making his claim to be purer than the driven snow. This from a man independently wealthy. Why the almost compulsive need to lie and to posture as something better than he is?

My wife sent me a press report about Blumenthal's latest whoppers. I read it and found myself doing the unthinkable: It is November. I enter a polling booth and read the ballots. I see the name Richard Blumethal for U.S. Senate, and I pass over it. With reluctance, I pull the lever for Linda McMahon. As I pull the lever I am aware I am not so much voting for her as I am against a man of near sociopathic arrogance.

I told my wife this. She was, of course, shocked. She is a good lefty. I, on the other hand, rarely vote. The candidates all seem to look alike to me, a bunch of lying opportunists who serve interests largely foreign to me. I asked her why Blumenthal's lies bug me so much; it's not as though I expected to find virtue in the brothel. Oddly, revulsion over repeated lies could push from a no-show to voter in November.

My moral compass reports she too is bothered by his lies: It is because in contrasts so vividly with his self-righteousness, she told me.

But when I told her some inchoate notion of voting for McMahon was taking shape, she rebuked me. "She's awful," she told me. "But what of Blumethal?," I asked. "He's merely yellow," she said. As always when she says things I don't want to hear, I did not then, and do not now, fully understand her. She is wise, I well you. (I concede her decision to accept my proposal was a lapse in otherwise exemplary judgment.)

Pollsters, don't bother calling our home. We have one reluctant vote for Blumenthal, and one undecided drifting toward McMahon out of a sense of almost visceral disgust. Just now, I suspect the Dicker's a winner. My wife sees that. But come Labor Day who knows what new whoppers will surface?

The Trial Tax And Cancer: Stonum's Concern

2010-08-22T11:25:00.000-04:00

Lee Stonum called me on a point that is worth pondering in a comment yesterday about my post wondering whether good lawyers can learn from good doctors. The premise of that piece was an analogy between cancer and a criminal charge: In both cases, professionals help those dependent upon them to manage risk. Central to the task of both lawyers and doctors is the management of hope and expectation in the face of catastrophe.

Lee's point disconcerted me. He so quickly found a fatal flaw in my analogy that I went about my chores yesterday (it was Saturday, and there are only so many days left in the Summer; I've plenty of outside work to get done before winter, and I worry that I cannot it all done) with a heavy heart and a spinning head.

Facing trial is not like facing cancer for the simple reason that, unlike cancer, a trial is the product of deliberate human will and conscious deliberation. Cancer occurs, whether the proximate but indirect result of human conduct, e.g., the use of pesticides. A trial is the result of a decision by prosecutors to single out a person for some real or imagined violation of the law. What's more, in a criminal prosecution, a judge is charged with the responsibility to see that the parties are treated fairly. There is no role analogous that of the judge in the oncologist's word; a doctor faces forces at once darker and more oblique. The law boasts of transparency; the physician struggles against opaque and primitive forces.

This is nowhere so evident as in the case of what criminal defense lawyers call the trial tax, the iron fist hidden beneath the Bill of Rights's velvet glove. As Stonum points out, there is a great risk in the criminal justice system that lawyers counsel guilty pleas in cases in which clients are either overcharged or actually innocent in order to avoid the punitive hammer that comes of holding the state to its burden of proof at trial. The trial tax, an opaque factor looming forever in the background, betrays the law's promise of transparency to be a farce.

Consider the following: Police observe a suspicious transaction between two men. As the officers walk toward the men one flees; it appears as though something was tossed as the man fled. The remaining man hands police officers his wallet on request. He, too, then breaks free and runs, escaping. The police still have a wallet, however. The officers find small bags of crack cocaine in the area where things appeared to be thrown.

An hour or so after this confrontation, the owner of the wallet calls the police station to report his wallet stolen. When officers go to the home of the man reporting the missing wallet, they recognize him as the very man who fled their custody. He is charged with possession with intent to sell crack cocaine and related offenses.

During plea negotiations the state offers the man two years to plead guilty to lesser charges. The man rejects the deal, and the case his tried. His father, sister and girlfriend testify he was at home with them at the very time officers claim to have stopped the man. It is a case claiming mistaken identity and alibi.

The jury convicts the man. His sentence? Eighteen years in prison. The tax imposed for going to trial was assessed at a rate of 900 percent! (The sentence was so severe the man's mother headed for a balcony on the courthouse's sixth floor after sentence was imposed. As her husband watched this, he collapsed with chest pain.)

In retrospect, I am sure this young man and his family wish that he had taken the two-year offer. The case was tried a decade ago; the man is still behind bars. Hindsight is 20-20.

But what of foresight? What is the lawyer's role? Stonum describes the process he goes through of counseling clients facing hard choices. But that process works best with clients possessing the intellectual and emotional resources to make candid judgments about their prospects. Some clients and families cannot face these decisions any more than a cancer victim can frankly assess their odds. Hope, perhaps like free will, is a necessary illusion.

I am troubled by the trial tax. I wonder, really, whether there ought to be something like binding high-low offers on the criminal side. The practice of setting upper and lower limits on recovery in civil arbitrations is common: Parties agree to avoid the risk of a zero-sum game by agreeing that recovery can fall within a given range. Why, if we value the Bill of Rights and the presumption of innocence as much as we say we do are we not engaged in imposing limits on the trial tax? When lawyers counsel clients about the punitive nature of claiming the rights all defendants are guaranteed something is wrong.

I hope Stonum sees this post. I would like to advance the discussion here. I concede the trial tax is a real and present danger to defendants seeking to resolve their case. And lawyers too timid to try cases will easily quake in the face of harsh offers, thus encouraging the state to overcharge and engage in legally sanctioned extortion. The system fails if lawyers are unwilling to try cases. I wonder, finally, whether there ought not to be due process limitations on the trial tax.

There is something fundamentally wrong with the practice. Good lawyers need to acknowledge the reality of this silent killer of Constitutional hopes and dreams; it adds a layer of complexity to our counseling of clients that physicians do not face.

What Can Good Doctors Teach Good Lawyers?

2010-08-21T10:53:00.002-04:00

Are trial lawyers supposed to have good bedside manners?

The question itself should not be answered uncritically, or too quickly. Packed within it is an analogy between lawyering and doctoring that may well be too facilely drawn. A recent article by Atul Gawande, a surgeon, in The New Yorker, "The last days of life," The New Yorker, August 2, 2010, pushed me headlong into a lost morning of rumination: How well do I serve the needs of my clients when it comes time to deciding whether to go to trial? Is there an analogy between doctors counseling patients at the end of life and lawyers counseling clients on the eve of trial?

Gawande is a surgeon at the Brigham and Young Hospital in Boston, and an associate professor at the Harvard Medical School. He is among a handful of medical doctors who write convincingly and well about the human dimension of medicine. (My personal favorite is Sherwin Niland.) No one seems to be writing in this vein among trial lawyers; we favor brash chest-thumping.

Gawande takes us bedside to explore why we spend so many of our health care dollars caring for those in the final few months of life. He notes that 25 percent of all Medicare spending is for the five percent of patients in the final year of their lives. Why do we throw money at the inevitable? Are there better choices that can be made?

Framing the question in this way pits patient autonomy against social utility. We defer, and rightly so in my view, to autonomy. But Gawande points convincingly to a third way: Shouldn't end of life decisions be governed by an ethic of enhancing the quality of life, rather than mere extension of its duration? Surprisingly, when patients are given a choice between hospice and hospital care in the treatment of end-of life conditions, many choose hospice care. Paradoxically, this may well extend not just the quality of a person's final days, but the number of days themselves.

But doctors, no less than patients, do not want to face the cold reality of a fatal prognosis. It is easier in some instances to avoid the issue by offering bland assessments -- "there is hope" -- than it is to sit cheek by jowl with a patient and family facing death and talking frankly about what the future holds.

What has this to do with lawyering, more specifically with criminal lawyering?

Whatever conduct a client may have engaged in to draw the attention of law enforcement, few clients want to be prosecuted. A prosecution, like cancer, is something that happens to a client against their will. Sure, a smoker brings the odds of cancer down upon himself, just as a drug dealer flirts with prison. But criminal law shares much with medicine: we fight invasions of liberty, just as physicians fight threats to life. Patient and client view things as happening to them; we are supposed to control these things. Many clients "catch" cases, reflecting the same process by which they come down with a common cold.

In both the case of medicine and the law, experienced practitioners develop a sense of what is reasonable to expect; I suppose this is what doctors call a prognosis. In the context of the law, a lawyer looks at the evidence, the law and available defenses when assessing a foreseeable outcome. How different is a lawyer's pretrial work from that of a diagnostician ordering tests? Both aim at the same result: What can be done to meet the crisis at hand?

Despite medicine's hybrid character as art and science, there is a growing body of statistical data that permits some objectivity in forecasting outcomes. Federal regulators, for example, engage in extensive clinical trials to decide whether to approve the use of certain drugs. All physicians have elementary training in statistics, and are trained to consult databases to assess the efficacy and risks of proposed courses of treatment for given diagnoses. Obviously, skill in diagnosis differ greatly among physicians.

Outcomes that are common fall along the middle of a bell-shaped curve, but there are foreseeable cases much worse and much better than the norm. Desperate people always seize the favorable outlier as hope: If there is a one in one thousandth chance of a cure, I want to be the one thousandth person; indeed, I expect to be that person. Medicine and medical costs are driven by the unrealistic hope that each of us will enjoy the miracle rarely dispensed.

Put in terms of a trial lawyer's life: All of our clients expect to be Rod Blagojevich or O.J. Simpson, at least on the criminal side. Sure, there was a mountain of evidence against the governor. But he was convicted, at his first trial at least, of but one count, the flimsiest count of all. O. J. was acquitted. Shouldn't well all go to trial against such hope?

There is glamor, fame and fortune to be made by lawyers riding the outliers. Gerry Spence announces he has never lost a criminal trial. We celebrate Vincent Bugliosi for much the same thing. We praise the winners and shun the losers in the high-stakes world of criminal defense. There is nothing wrong with that, but, I wonder whether the race horses of the bar actually do more damage than good when they hold themselves out as models for young lawyers.

There are times when it is foreseeable that given the facts and the evidence, a client will be convicted at trial. Isn't it a lawyer's responsibility at that time to counsel caution?

Consider the following case: A businessman facing a white collar prosecution is told by his lawyers that he has a fifty-fifty chance of winning his case at trial. Is that really a candid assessment of the risk going forward, or the sort of evasion a physician might make when asked by a client about whether the client will die? It sounds perilously like telling a person there is hope. (There are no databases in the law to permit a practitioner to consult data on potential outcomes.) On a plea, the client faces a handful of years in prison; after trial, the number is far higher.) Shouldn't the lawyer do more than dodge the question with a breezy sort of optimism that likens trial to a game of chance?

The client wants to hear hope, but candor may require a bleak assessment of a grim future. In the medical system evasion of difficult truths often results in wasteful care that actually decreases the quality of life for patients suffering fatal and final illnesses. I suspect in the law there is similar waste: misplaced hope yields extra decades in prison.

Gawande is on the cutting edge of discussions about medical risk, responsibility and quality of life for patients. The law has yet even to begin this discussion in meaningful ways. Instead, we celebrate the law's outliers, lawyers smart enough to pick winners, and good enough to win most cases. (Their losses, when they have them, are rarely discussed.)

I want to meet Dr. Gawande. Better yet, I will be looking for seminars at which physicians speak about counseling patients at the end of life. I suspect trial lawyers can learn a lot from doctors.

Hey, Brother, Can You Spare A Partnership?

2010-08-20T12:08:00.000-04:00

I once stumbled upon a description of my dream job in a John Grisham novel. (I don't recall which one, they do tend to look a like from a distance.) A firm rolling with cash had one partner devoted to pro bono work. He was paid handsomely, never had to worry about fees, and was free to dive head first into bewildering complexity without having to cover his overhead. That's the job I want.

The job I have is head of a small firm composed of three full-time lawyers, an of counsel lawyer, paralegals, assistants and an office manager. We don't have institutional clients. What we have is overhead and attitude. It's the attitude that attracts plenty of phone calls and letters; more phone calls and letters, frankly, than we can respond to with ease. The overhead is what keeps me up at night.

So I read with envy the report in this morning's New York Times about young lawyers given year-long paid deferments from big law firms to work on the public interest side. The bar's elite can be paid a stipend of $60,000 or so to stay away from their shop and go to work in a less remunerative area of the law. One young man, Nathan Richardson, worked for an environmental police group; another young lawyer decided to work in a public defender's office. Imagine being paid by big law to do public interest work?

"The rich are different than you and me," F. Scott Fitzgerald once said. That's certainly true in the practice of law. I cannot imagine what it must be like to be well-financed and capable of choosing how to spend your largess. We're more like the little Dutch boy with only so many fingers and a dike leaking in far too many places. How can we remain afloat as the dam threatens to burst?

I spent a day not long ago answering correspondence from folks, mostly prisoners, seeking representation. Some had been abused physically by guards, many had medical issues that were unaddressed by prison officials, some sought counsel about issues relating to their release date. Almost all of them made clear that they were seeking pro bono representation. It was overwhelming. At some level I felt something almost like anger: It seemed a long line of folks had formed consisting of folks who had decided that I was just the guy to give them my services free of charge. I had to turn down these folks with apologies: a tough economy makes it hard to take all the cases we would like to take. But even if I practiced at the Law Offices of Croesus, I couldn't have taken all these cases. There is so much need; so much sorrow.

And then a letter arrived from London, from an international human rights group. A prisoner not far from here is being force-fed against his will. Can we assist? At once, my imagination is engaged. A man in the belly of the beast has lost all, his liberty, his reputation and his autonomy. Now the state seeks to deprive him even of his right to protest the terms of confinement. The state will keep the man alive solely to imprison him. This is shades of the Michael Ross case all over again. He was the death-row inmate who decided to seek no further appeals. He decided that after more than 15 years of fighting he just wanted to die. Frankly, I supported that decision: Who are we to tell a person they must live? "Be careful," a staff member tells me. "This is case is a financial black hole."

But black holes seem to be all I know. This morning another potential client calls. He's been advised by other lawyers that the wrong he seeks to right may be beyond repair. "It's a one in a million chance," he tells me. "That's why I called you." My heart sinks. I wonder if I would recognize a sure winner if it walked in the door? I tell him I cannot do the work for free: he'd need to pay a fee. But already I'm liking his odds. One in a million means that all hope is not lost. I am David, looking for the perfect stone to cast at giants.

All these fights and so little time. Nowhere in legal fiction have I seen the economic reality of running a small firm portrayed. Folks don't just tumble through the door with small fortunes to pay for legal fees. Staff members need to get paid; the lights must be turned on; bills arrive daily. All these fights and so few clients able to pay for them. Every day a new request for pro bono service; every day another David asking for justice against Goliath. I realize now that my it is frustration and not anger that I feel.

The rich do live different kinds of lives. So do partners at big firms. So do associates at those firms. I'm envious. I've made a pet of the wolf who stalks our door. Even so, I am envious. So what do you say ye titans of the megafirms? Can you spare a partnership for a lawyer with a lot of fight and little economic sense?

I already know the answer. I don't expect the phone to ring with your call. Instead, the next caller will no doubt be desperate and broke. He'll need a lawyer. Odds are he won't be calling big law.

A Good Judge Is Hard To Find

2010-08-19T14:45:00.004-04:00

Milford Superior Court Judge Eddie Rodriguez Jr. was in the hot seat the other day. The editorial board of the New Haven Register took aim at him for comments he made while sentencing a man who pled guilty to the possession of child pornography to five years in prison.

"You're being sentenced by the legislature," the judge told him. "Our hands are tied." The judge apparently had reservations about whether the sentence was just.

Why do we permit lawmakers, most of whom would probably wet themselves if they ever darkened the door of an actual courtroom, to belch out mandatory minimum sentences for offenses as though they were passing out government contracts to favored constituents? It's too easy for them to pander to angry voters, especially when it comes to folks stigmatized as sex offenders.

The editorial board of The New Haven Register opined that Rodriguez was a discredit to the bar, further fanning flames sure to come back to haunt the jurist when he stands for reappointment years from now. Great, just great. Now we're going to sentence people according to what editorial writers want?

Charles Rish was sentenced to five years because he possessed child pornography. He had some 1,500 images downloaded on his computer, including some of a six-year-old boy engaged in sex acts with another child. One image was that of a three-year-old. These are revolting images.

But Mr. Rish had apparently persuaded the judge that he had sought treatment and was a low-risk to offend again. The 53-year-old defendant had already been shamed in the community. The judge who knew the case concluded the man was not a predator.

Connecticut has tough new mandatory minimum laws for possession of child pornography. Passed in 2007, An Act Concerning Jessica's Law was passed in a wave of moral panic stirred by the rape and murder of Jessica Lunsford in Florida. Paradoxically, Jessica's father had child pornography in his computer at the time his daughter was abducted; no one charged Mr. Lunsford with being a predator. It would have been obscene to over-react in such a manner: the poor man had been through enough. Why is that if all possessors are predators in the making?

Jessica's abduction, assault and murder feeds the fear of stranger danger, the sense that all of our children are at risk each and every moment of every day. We cannot do enough to feel safe, so we enact new laws, each designed to eliminate more risk. But what, really, has Jessica's murder to do with child pornography?

Empirical evidence suggests that so-called sex offenders have among the lowest recidivism rates of all persons convicted of crimes. There is no evidence to support a "Reefer Madness" sort of theory of sex offenses. What research supports the contention that mere exposure to child pornography leads inevitable to rape and murder? There is none. There is only hysteria.

Lawmakers enacting tough new laws with mandatory minimum sentences hobble judges and the administration of justice. We shouldn't sentence stereotypes. One size does not fit all.

Defendants are "human beings, regardless of the crime they've committed, they're all human beings and they should be told something by the court in terms of why they're being punished. You're depriving a man or a woman of their liberty. ... Sentencing is a very delicate and extremely difficult task for any judge," Rodriguez said in an interview. Amen.

I repeat what I have suggest here before: Anyone wanting to serve as a lawmaker should be required to spend a week or so behind bars, locked up in a cell. Prison is a harsh sanction, and it should be meted out only after a judge has been given the ability to assess whether it is required. Too often lawmakers dole out mandatory sentences as though they are candy. I say make them eat a pound or two of the garbage they call justice. Let them see how it tastes.

Judge Rodriguez is a good man. I only wish he had simply refused to impose the mandatory minimum lawmakers imposed. Let's litigate this issue anew. Why under the separation of powers doctrine under the state constitution are we permitting people who never set foot in a courtroom or read a pre-sentencing report to set what sentences a judge must impose?

Reprinted courtesy of The Connecticut Law Tribune.

Laura And Imus, Sitting In A Crib ...

2010-08-19T07:32:00.001-04:00

What's all this fuss about Dr. Laura Schlessinger and, gasp!, the N-word? I confess that I have not followed it closely. It struck me as even less consequential than the Don Imus dust up. So she said "nigger" on the air. That doesn't exactly make her a white supremacist now, does it?

I was sitting at a stop light the other day, windows rolled up, air conditioning on, waiting for a light to change. A car ahead of me and to the right had its windows open. Music was pounding; the beat felt like it echoed right through me. But I couldn't make out all the words. I rarely can with music. It's worse than tone deafness in my case.

But what I could hear neither shocked nor offended me. "Boom, boom, boom.... Yeah, niggah. ... this bitch ... Fuck dat, Niggah.... Yo, Niggah, niggah, niggah." All at once I reached the assumption that Dr. Laura was probably not driving that car. As I eased by I saw the driver: Young, black, proud, and oh-so pleased to share his music with us. Why wasn't he slapping the dashboard silly and calling in a complaint to the NAACP?

Attorney General Eric Holder was right when he said the nation lacks the courage to have a meaningful discussion about race. Instead we posture. We sell music about niggahs, bitches and hos. When young black men listen to it, it is somehow cool, acceptable, a badge of racial pride. When white people listen to it they are wannabes; that's still all right, but it is somehow less authentic than being a gangsta rapper. No race owns the language.

But if some stuffy old white women utters the word, the heavens part. She's a racist. She must apologize. She should be driven from the airwaves for spewing hate, even if it was not hate she was spewing at all.

What amazes is that Dr. Laura isn't letting this controversy role off her expensively clad back. She said something nasty. Folks listened. They were free to tune in or tune out as the case may be. If she regrets using the word, say so and move on. But submitting to an electronic lynching cheapens the discourse, and avoids a chance to engage meaningfully about race. It emboldens bullies.

This evokes memories of Imus on the run. His remarks about the girls' basketball team at Rutgers were far more offensive that Dr. Laura's comments. But even there, what did folks really expect from Imus? He's a high brow shock jock after all.

Dr. Laura says she is leaving the radio to vindicate her First Amendment rights. Huh? You don't win a fight by running, Dr. L. And besides, no state or government is forcing you from the radio. You are running from angry listeners. You are refusing a chance to take a long and hard look at double standards, race and the language of hate. Hang in there, niggah.

So a new nursery rhyme springs to mind:

Don and Laura running like chumps,
Both too scared to take their lumps.
First comes words and then comes hate,
Why are they quick to make an escape?

Grow up, Dr. Laura. Seize the chance to explore a dark side of American life. Race is too often a wound in America. Explore this pain rather than run from it. We're all living in the midst of plenty that is unspoken but felt. Lead a discussion rather than pouting like some privileged cracker.

Blagojevich: Who Holds The Government Accountable?

2010-08-17T18:00:00.003-04:00

The United States Government huffed, puffed and blew an elected governor out of office in the State of Illinois. But at the end of the day, all prosecutors have to show for their efforts in the prosecution of Rod Blagojevich is a single count of making a false statement. The jury could not reach a verdict on the remaining 23 counts. Here's to hoping United States District Judge James B. Zagel grants a motion by Blagojevich to acquit him of the sole count of conviction.

I am no fan of Blagojevich. The conversations he reportedly had on tape were ugly. He is a guttersnipe. But he is a politician, after all. He is such stuff as Congressmen and Governors are made.

But I wonder how many lies the government told Blagojevich during the course of its investigation? I wonder how many witnesses were intentionally misled? I wonder how often jurors were kept in the dark about how prosecutions of this sort are made?

Let's begin with fundamentals: It is a federal offense to lie to a government agent performing his duties. But guess what? The United States Supreme Court has stated it is all right for government agents to lie to you. In other words, if you lie to the Government, you face five years in prison; if the Government lies to you, that's business as usual. Why the asymmetry? Shouldn't the Government be held to the same standard as the people it serves?

Just the other day I learned of a prosecution of a man for making a false statement based on the following facts: The FBI thought a man disposed to take bribes. Two agents dressed up and pretended to be organized crime figures. They approached the target and offered him cash to do the wrong thing. The man declined to take the cash. So much for that theory of prosecution.

As the agents left the meeting, they told the man to be sure to deny meeting with them if the feds ever came calling.

Sure enough, two new agents, this time proudly displaying their FBI badge, showed up at the man's house. They asked whether the man had ever met with two men who had offered him a bribe. The man denied the meeting; he lied, in other words. Bingo! Now the fellow is prosecuted for making a false statement to federal agents. There is something inherently sleazy about this.

I don't know the Blagojevich case well enough to know whether similar Government chicanery was used to trip up Blagojevich, or whether the former governor is such a scum bag that he needs no encouragement to lie. But, really now: Twenty-four counts of fraud and claims that he tried to sell a United States Senate seat and all the Government can prove is a lie to federal agents? This is a humiliating defeat for the Government. Period.

We say that our courts are open, but does the public really know about how many cooperation agreements are struck between the Government and witnesses behind closed doors in a judge's chambers, with half-truths then placed on the record in open court?

I've seen men sit in private and have a judge accept their cooperation agreement. Moments after the deal is struck, everyone appears in open court to accept a guilty plea. The client is asked by the same judge who just took the secret cooperation agreement whether anyone has promised him anything to induce him to plead guilty. The man says no, and no one mentions the Government's promise to seek a lesser sentence if the man testifies truthfully against someone else. Are we supposed to be amused by what amounts to judicially sanctioned deceit?

It's far too early for popping champagne corks in the Blagojevich case. The Government can, and most likely will, try him again on the 23-counts on which the jury could not agree. Most likely, the judge will not grant a motion to acquit on the false statement count. But at the very least, sentencing should be deferred on the false statement count until after the next trial in this matter. If Blagojevich is eventually acquitted of all counts, the judge should then send the Government home empty handed, and the Government should be forced to pay Blagojevich's legal bill.

In the meantime, hats off to Sam Adam Jr. It didn't look like he had a prayer from afar: but he did well. He almost succeeded in pulling his client out of the jaws of a lying beast with the audacity to prosecute those who do as the beast does.

P.S. The more I think about this the angrier I get. Here is a practice pointer: Don't bother bringing in a tape recorder to a meeting with a federal official, the feds won't let you record an interview. It is against policy? Question: Why don't you get to protect yourself when they interview you?

Sotomayor, Skilling and Fair Trials: Trial Experience Matters

2010-08-16T09:30:00.000-04:00

If you think that trial experience doesn't matter for a Supreme Court justice, I urge you to read Justice Sonya Sotomayor's dissent in Skilling v. United States. Having actually tried cases, albeit as a prosecutor, Sotomayor is not uncritically seduced by the embrace of a cold trial record. She knows better. Not many judges, or, for that matter, justices, do.

The Skilling decision has been the subject of a lot of commentary, but almost all of it is focused on the court's limitation of white collar prosecutions for theft of honest services. Prior to Skilling, almost any act of dishonesty or deceit by an employee, whether in government service or private employment, was enough to land you on the wrong side of federal cross hairs. After Skilling, at least on the surface, only conduct related to bribery or extortion will support such a prosecution: the Court held that to do otherwise would yield a statute so vague as to leave us all guessing as to what and was not a crime; it would also empower prosecutors to pick and choose defendants almost at will, for reasons that often smell of politics. (I say only on the surface because a group of senior lawyers in the Justice Department have formed a work group deciding how best to live in creative harmony with this rule. Expect more creative prosecutions.)

But the honest services claim was only one part of Skilling. The former Enron executive also claimed that he had been deprived a fair trial by the trial court's decision to grant his motion for a change of venue. Among other things, the panel of jurors was so saturated with hostility whipped up by the media, that sitting an impartial jury was impossible, he claimed. Try as it might, the trial court could not, and did not, seat a panel of jurors prepared to decide the case solely on the evidence presented in the courtroom.

Skilling's lawyers asked for lawyer-conducted voir dire as a means of flushing out bias and making a record in support of a change of venue. The trial judge denied the claim, stating that in his experience jurors were more candid with judges than lawyers. Only a federal judge who has never tried a case could buy this specious swill. The conduct of voir dire by federal judges is almost always a farce. Put an authority figure in a black robe on an elevated perch and set him lose on prospective panelists: most would-be jurors are so intimidated they'd agree to just about anything the judge suggests with his questions. This God-in-the-box form of voir dire is meaningless. Almost no one is prepared to challenge the mighty Jehovah when he sits wielding a gavel. Distrustful as folks may be of lawyers, they are at least more inclined to be honest with them.

I recall a case in Bridgeport years ago in which a federal judge permitted lawyer-conduced voir dire. I was the last lawyer in a series of lawyers to speak. The panelists were tired and irritable by the time I was permitted to speak. One of them took a verbal swipe at me early in my questioning. The hostility spread like wildfire. Soon, several wiseacres were challenging me, suggesting my client would be better served by a better and different lawyer. I hung in there, thanking the folks for their honesty. I was afraid of that group, but treated them with respect. The respect was returned a weak or so later when the jury acquitted by client of worker's compensation fraud charges. I would never have learned about the dark underside of that group so long as the judge chirped along, producing polite, almost grade-schoolish answers to his questions. Judge conducted voir dire is, I repeat, a farce.

But few on the Supreme Court saw that in the Skilling case. The glittering intellects sitting on high buy what is printed on the page, and why shouldn't they, since that is all they ever see of a trial court? Writing for the majority, Justice Ginsburg cited the trial court's confidence in its ability to get candor from jurors as though it was an authoritative pronouncement. That is simply not credible, as any trial lawyer with more than a court trial under his or her belt will tell you.

What's worse, the majority was so in love with the cold record in this case and so lacked critical perspective that it accepted the claim that jurors were not biased once they but uttered the pledge that they could be fair. Never mind the halting and confused comments leading to this profession of faith. All was forgiven once a juror but declared she could believe.

Justice Sotomayor was not so easily fooled. I submit that is because she has been an advocate in a courtroom. She knows a thing or two about how jurors react when facing a judge determined to pick a jury as quickly as possible. (It took all of five hours to select the Skilling jury, this in a town ravaged by the Enron bankruptcy.)

Consider the following: Jurors were selected who expressed reservations about whether they could be fair and had intimations that Mr. Skilling might just be guilty before the evidence began. It wasn't enough for a juror to be disqualified as biased if they uttered "shame on him," of Mr. Skilling. One potential juror couldn't honestly say whether he could afford Mr. Skilling the presumption of innocence. That's OK, the trial judge ruled, so long as the juror could ultimately be persuaded to answer yes to a question about whether he would acquit if the the government failed to prove doubt beyond a reasonable doubt. Sotomayor's dissection of the trial judge's voir dire, see page 33 of her dissent, is grim reading. It seems the trial judge was disposed to sit just about anyone with a pulse.

Justice Sotomayor, joined by Justices Stevens and Breyer, would have reversed Mr. Skilling's conviction because she thinks his panel was unfair either in appearance or in fact. I submit her dissent would never have been written if she had never seen with her own two eyes just what goes on in a courtroom. She knows that a record reflects words on page, but that those words are but a reflection of a more nuanced reality. Her dissent is a sobering reminder that the quality of justice meted out by the high court is a reflection of the experience of the justices presiding. A court composed largely of jurists who have never been other than tourists in a courtroom is a court less credible than it ought to be.

We need more trial lawyers on the court. The work of evaluating the fairness of a trial is too important to be left to rank amateurs.

Harold Turner: Why Not "Not Guilty" After First Two Trials?

2010-08-15T16:21:00.001-04:00

Here's something I have never understood. In a criminal case, the government has the burden of proof. It must prove its case beyond a reasonable doubt. To do that, all jurors must agree. In other words, it takes a unanimous verdict to convict a man. Anything less amounts to a failure on the part of the government. The defendant need not prove anything, we say. So why is it that when the government fails to persuade all of the jurors of a man's guilt that he is not acquitted? Failure is failure, correct?

I was reminded of this gnawing sense of absurdity while reading about the Harold C. Turner case. He was tried three times for threatening three federal judges. Jurors were unable to reach a verdict in the first two trials. But the third time was a charm for the government. It wasn't so charming for Mr. Turner, who now faces up to ten years in federal prison.

Turner was displeased when three judges of the United States Court of Appeals for the Seventh Circuit upheld a ban on handguns. He wrote on a blog page that "[i]f they are allowed to get away with this by surviving, other judges will act the same way." The judges "deserve to be killed," he went on to say. He also posted photos of the judges, together with their office addresses. Of course, the Supreme Court later reversed the Seventh Circuit, overturning the Chicago hand-gun ban at issue.

This is menacing stuff.

The first jury to hear the case rejected the govnerment's case by a vote of nine to three, with the majority voting to acquit Mr. Turner, who argued that he had not issued a directive, but had, instead, merely engaged in critical speech. The government did not call the three judges as witnesses in the first trial. The government failed to prove its case.

At the next trial, the judges, Richard Posner, Frank Easterbrook and William Bauer, did take the stand. But still, jurors could not agree, although it is unclear what the vote was in that case. Call it strike two for the government.

But Mr. Turner's luck ran out at the third trial last week. Jurors returned a quick verdict against the white supremacist. All 12 jurors agreed the government had proven its case.

Threatening prosecutions are unusual when the threat is not conveyed to the target. In this case, it is unclear that three busy judges ever really took the time to read Mr. Turner. Quite frankly, I suspect the tenor and content of his prose did not exactly make the judicial radar in Chicago.

But it did catch the eye of prosecutors, who dug in three times to make their point.

Protecting robust speech is important, and I concede that Mr. Turner's speech is troubling. But is it threatening when a blogger pops off? Or is it more threatening when the government prosecutes a man for engaging in mencacing speech absent any evidence that the speech was uttered in the presence of the intended target?

From time to time folks threaten me. It goes with the turf in a criminal law practice. I don't worry much about the folks who talk smack, especially those who do so by way of blogs or other public venues. The ones you worry about are the silent types. Those are the bullets you'll never see coming.

But really, why wasn't Mr. Turner released after the first trial, the one in which the government failed to prove its case by the requisite standard? Don't tell me the lack of a unanimous verdict resulted in no verdict. If it takes a unanimous jury to yield a not-guilty verdict, then it is the case that we are requiring the defendant to prove something: namely, that he is not guilty. The government's failure ought to be enough to render a not guilty verdict.

Almost Cut My Hair ...

2010-08-15T15:52:00.000-04:00

I swear it almost happen the other day. It really did. I was sauntering into a bookstore when the barbershop nearby caught my eye. "Why not?," I thought. "How long's it been?"

In truth, it's been a good twenty years since I checked into a barbershop. Oh, I get hair cuts every so often. We've reduced it to something of a game in my house. Every four or five years I announce abrubtly that I am ready for a trim. I count to ten. So long as my wife can get to me with a pair of scissors before I am done counting, she can take as much as she likes. Of course, you know what follows. I boast for days that my wife cut off five or six inches but mine is still longer than most anyone I know.

But I was close the other day. Very close. I bought a couple of new suits and some new shirts. I suppose I was contemplating a complete make over. And then I remembered one of my favorite songs. For now, the hair stays.

Alvin M. Greene: What Would Be The Harm?

2010-08-14T19:23:00.001-04:00

A recent issue of The New Yorker carried an article George Packer that painted an unflattering picture of the United States Senate. "The Empty Chamber," The New Yorker, August 9, 2010. Far from the greatest deliberative body on the planet, the Senate looks more like a geriatric Animal House, with Senators preening before unmanned cameras in empty chambers and rarely engaging in anything liker serious debate.

So I ask you: What would be the harm of electing Alvin M. Greene to the Senate in South Carolina? Greene appears to be a classic no-nothig, do-nothing sort of guy. But is he any different than the folks in the Senate now?

Consider the words of Tom Daschle, the former Senate Majority leader from South Dakota:

"Sometimes, you're dialing for dollars, you get the call, you've got fifteen minutes. [To appear for a vote.] You don't have a clue what's on the floor, your staff is whispering in your ears, your running onto the floor, then you check with your leader -- you double check -- but, just to make triple sure, there's a little sheet of paper on the clerk's table: the leader recommends an aye vote, or a no vote. So you've got all these checks just to make sure you don't screw up sometimes. But, if you're ever pressed, 'Why did you vote that way?' -- you just walk out thinkinh, Oh, my God, I hope nobody asks, because I don't have a clue."

Greene is a 32-year-old political novice who mumbles rather than speaks. He won the Democratic primary for the Senate in June, and is believed by some to have been put up to running by mischief-making Republicans. He will face Senator Jim DeMint, a Republican incumbent in November. Pundits predict slaughter.

Greene's chances grew even dimmer this past week. He now faces two obscenity counts for showing a college coed some pornographic films and trying to accompany her to his room. But, once again, such shenanigans hardly disqualify him from sitting in the Senate.

What would be the harm in voting for Greene? I hope South Carolina voters call the bluff of politicos and send this man to Washington. Just once, I'd like to see someone sit in that chamber who wasn't full of more feces than a sewage treatment center.

What would be the harm of sending Greene to the Senate? It's not as though Solon is expected to arrive there anytime soon. According to packer, the chamber is dominated by a culter where lofty thoughts and generous impulses have no place. Would anyone really notice if Greene were elected?

Second Verse Same As The First?

2010-08-14T12:47:00.000-04:00

One of the most dismal experiences a trial lawyer can have is reading a transcript of a case you have already tried. The only thing worse is having to sit through a read back or replay of testimony> I think of myself as fluent, sometimes even eloquent. My transcripts betray me to be a stuttering mess of non-fluencies.

I am preparing now for a special version of this Hell: the retrial of a murder case I tried last September. The jury could not agree on counts of murder as to one victim and attempted murder as to another. So come this September, we will try the case all over again.

I had hoped this week to travel to Omaha, Nebraska to work with a trial consultant who reads this blog and volunteered his time. I generally don't play well with others, but this fellow reads: We started a correspondence that of sorts around the time I noted with glee the publication of C.J. Jung's Red Book. I say you've got to love a guy who tried cases and reads difficult books.

Omaha will have to wait, however. I have two lawyers out of the office for the month of August. I am running from one end of the state trying to put out fires. It's too busy a time to leave.

So I sit, staring at transcripts of my work and looking for ways to improve. (The prosecutor told my partner that the verdict was 11-1 in favor of conviction; I have a lot of improving to do.)

It is a close case; the defense is self-defense. My client, a male, claims he was backed into a corner near steep stairs descending to basement by a drug-crazed woman. He shot her dead and wounded a friend of hers as they argued.

It is hard work, reappraising a trial. The thought of trying the case again fills me with dread. There was anger aplenty in the room, with grieving and bitter family members of the victims present daily. The prosecutor became embittered, too. I did not help matters at all. I sometimes attack when no attack is needed.

Jury selection begins August 30. It will take a couple of weeks to pick the jury, given our state's quirky and entirely wasteful manner of picking jurors by speaking to candidates one at a time out of the presence of all other jurors. Evidence won't begin for at least another month. I have time aplenty to ponder a job half done last trial. This much I know; the retrial will not look like the first trial. Oh, the defense will be the same. But I have an opportunity to do better this time around. I will.

White Collar Warrior: Silverglate and Three Felonies A Day

2010-08-14T09:33:00.006-04:00

I have a confession to make: I've always been wary of the white collar criminal defense bar. Real criminal defense lawyers defend those accused of murder, rape and other crimes of violence, right? I mean, wassup with the pinstripe suits and the Grey Poupon sensibilities of those with money to burn? Isn't white collar work for momma's boys and wannabes?

Harvey Silverglate has slapped me silly and forced me to see just how wrong I am. His Three Felonies A Day: How The Feds Target the Innocent, is a tale told from the trenches by a white collar warrior worthy of any courtroom. It may well be that the threat to liberty is greatest in the world of white collar crime, where prosecutors armed with vague laws, investigative grand juries and infinite resources can crush virtually anyone, regardless of whether the person has committed a crime.

Silverglate practices in Boston and writes a column for The Boston Phoenix; he is a sixty-something lawyer and litigator who managed to survive Harvard Law School without losing a taste for street smarts. I've never met him, but his photograph on the dust jacket of the book bears an uncanny resemblance to Robert Fogelnest, former president of the National Association of Criminal Defense Lawyers, and now an expatriate living in Mexico. Fogelnest is a good friend, so I suppose there is a danger that I read too much into Silverglate's feisty prose, but I don't think so.

Economic hard times make populists of all who struggle, and yield the temptation to indulge in a sort of populist dualism, separating the world in good and evil. The current bad guys are Wall Street bankers, those smarmy folks who packaged derivatives, traded them like baseball cards among themselves, exploited the Barnum-like quality in each of us that wants something for nothing, and then crashed the economy. We're enraged, most of us, that these banking bandits pulled this off and still got a free ride from the government. What a country: The rich get bailed out by Government and ordinary people are forced into bankruptcy.

It plays, doesn't it? This neo-populist rage slips easily off of my tongue. Tar and feather the leisure class, I say.

But not so fast. Silverglate warns against this sort of easy anger. It is the sort of thing the prosecutors use to fuel prosecutions of doctors, lawyers, businessmen, salesmen, bankers, virtually everyone who, in this complex and regulated economy of ours, sell goods and services under the watchful eye of the government. Each can be prosecuted on a whim; all of us are criminals when viewed through lenses tilted just so. In the world of white collar crime, mail fraud, wire fraud, obstruction of justice, become fall back crimes prosecutors can allege when all else fails. Many defendants chose to enter pleas rather than fight costly and expensive wars than might well vindicate them but at the expense of bankruptcy.

A friend recommended Three Felonies a Day when he learned I was representing a lawyer in an ongoing federal investigation. I told my friend how terrifying the investigation was. When questions were raised about one topic, I met with the feds. I provided documents that rebutted their suspicions that anything was amiss. They acknowledged that they did not know about the documents I showed them. I assumed that the case would be closed and all would return to normal.

How naive.

You see, the government wants to turn this lawyer into a witness against another lawyer. So they are sparing no expense to try to terrify my client. Federal agents have visited his neighbors, his favorite restaurants, his clients: The agents are behaving like organized crime goons, flashing badges and guns in an effort to scare up some evidence of any kind of wrongdoing that they can dream up. Why? They want my client to flip against someone who is the real target of their ire. There are reputations to be made in high-profile prosecutions, you see. The feds are trying to "climb the ladder," as Silverglate calls it, using my client as a rung. The trouble is, there is nothing for them to seize upon.

But they want their man. So they dog my client, sending almost daily reminders of their ability to root through all the electronic trash they can find: banking records, credit card receipts, old tax returns. They will press until they find something they can use as a club to bludgeon my client. All this with the aid of a secret grand jury, a body that was intended to protect liberty but not serves as the American equivalent of Stalin's secret police.

I've handled white collar cases before, cases involving government employees, bank employees and those alleged to have abused positions of trust. But, frankly, I did not see the political significance of each of these prosecutions clearly enough.

The defense of a crime of violence is challenging. Jurors are terrified by glimpses of a frightening world. Stepping across the divide separating law-abiding jurors and the blood and gore of the event alleged is difficult. Jurors look upon the allegations as they would upon a foreign culture.

But in white collar cases, there is no divide. When the government can accuse anyone of a crime and the crime is simply engaging in business, or taking advice from a professional, we are all potential defendants. The gap between juror and defendant is eliminated. What is evil now is not the blood on the murder weapon. No, what is evil now is the secret hand of a federal agent, lying, intimidating and insinuating his way into our lives. White collar work, Silverglate persuades, is one of the front lines in the battle against abuse of government power.

Silverglate radicalized me. There is no mob quite so dangerous as a self-righteous mob, and populism is the rage of the day. White collar defense is less the work of those who don't want to get blood on their lapels than it is a world in which spreadsheets and ledgers become the new Molotov cocktail. Reading Silverglate made me eager to get into the front lines and trade blows with a government all too ready to take without restraint.

Read Three Felonies a Day.

Morals, Mortgages And Risky Business

2010-08-13T07:31:00.000-04:00

Yesterday's New York Times carried a story about morals and mortgages. The news value of the story was that plenty of folks are simply walking away from mortgages they can no longer pay. As real estate values have plummeted many home owners now found themselves "under water," paying down a debt to a bank for a home in which they have no equity. Many folks are renegotiating the terms of their debt, some lucky folks paying as little as 10 cents on the dollar for delinquent home equity loans.

Is walking away from such a mortgage or renegotiating a sweetheart deal immoral? Some folks think so.

A mortgage is a contract between borrower and lender. Money is advanced, and the borrower agrees to repay on certain terms. In the case of a home, those terms typically require payment over a lifetime of work. Thirty year mortgages are the norm.

But contracts are not moral pledges. They are not lifetime vows of fidelity to gods and goddesses. Contracts are merely promises that the law will enforce. Making them into neo-Kantian sorts of obligations divorced from any sense of utility or context makes them more rigid than they should be. I wonder, really, whether bankers have underwritten the notion that contracts are akin to moral pledges; bankers certainly do well receiving mortgage payments that make little economic sense for homeowners to pay.

The law recognizes that contracts aren't merely enforceable on the terms in which they were written. Parties have obligations to one another that transcend the written word. Equity reads into contracts such obligations as fair dealing and good faith. These are what as known as implied warranties. The law will not enforce a contract unfairly struck.

When the banking industry complains that folks walking away from mortgage commitments are behaving poorly, I wonder why there is no counterclaim that banks unwilling to voluntarily write down their debt aren't behaving in a similarly immoral fashion. It's apparent to all that the real estate bubble has burst; home values have fallen from one coast to another. One of the things that fed the ballooning of mortgage values was easy credit: bankers extended that easy credit to make money in the form of points and interest.

Why isn't there a claim that refusal to voluntarily write down mortgage debt is immoral?

Forgive the lame analogy: But isn't the moral protest of bankers about folks walking away from mortgages sort of like a drug dealers claim that the junkies just aren't buying like they used to?

I see the logic of walking away from a mortgage that never ends to pay for a house worth far less than the debt it takes to carry it. Why not just leave the keys on the doorstep and let the bank sell it to the next guy in search of a home. Let the bank take the loss upfront and fast. Why should consumers continue to underwrite banks well into the future. Who is giving consumers a break?

Watching Ice Melt In Connecticut

2010-08-12T08:01:00.001-04:00

I’ve toyed with the idea of a form letter along the following lines to be sent every six months to clients::

“Herewith a periodic report on the status of your case. We are ready for trial and have been for some time. We are awaiting assignment of the case. As we explained when suit commenced, long delays are typical in Connecticut, especially in the federal courts. We are powerless to compel the court to call you case any sooner. I am sorry.”

There is a thriving market on the criminal side of things in clients who believe that their lawyers are doing nothing because six, seven, eights months have passed and they are still not called to trial. When you explain to them that they aren’t even eligible for a speedy trial at this point, that not enough time has passed, they seem stunned: An eight month or a one year delay is speedy? We send almost all of these potential clients back to their original lawyer: We can’t make ice melt any faster than the next guy.

I want to blame the glacial pace of justice in Connecticut on our manner of picking jurors: individual questioning of each potential juror outside the presence of all other jurors makes it common for jury selection to take longer than the presentation of evidence. But that is only part of the problem. The federal courts, where group voir dire is the norm, also move at a snail’s pace. I think we’re just slow as a molasses and proud of it in this state.

Consider the following: I have two civil cases that have been ready for trial on the docket of one federal judge. They’ve been ready for trial for a long, long time. In one case, the plaintiff withstood summary judgment; in the other case, the defendant filed no motion. Discovery has been closed for quite some time. My clients want to know when their cases will be tried.

I get defensive when such a question is asked of me. I am an officer of the court. I want the system to work. But I tell clients the truth: I have no idea. It could be another year or more before anything happens. Some clients get angry.

So I wrote a letter to the judge requesting action, with a copy certified to my adversaries, of course. I was hardly surprised to receive no response to my letter. It has fallen into the same black hole my cases have tumbled into; perhaps the judge has been swallowed whole himself.

This is the same judge, mind you, who many years ago awarded me a paltry attorney’s fee in a federal civil rights case. My client prevailed at trial in a case claiming a police officer illegally searched his car. We vindicated the Fourth Amendment’s right to free from illegal searches and seizures. But the jury did not like the client or me, and awarded only one dollar. I requested attorney’s fees of about $5,700. The judge gave me thirty-three cents, one-third of the award. I’ll bet he thought that was funny. About ten cents a day for my efforts was a reasonable fee for the work of a private attorney general.

I suppose that the world simply looks different once you secure the Zen-like position of lifetime employment. Imagine a lifetime of income in exchange for doing as much or as little as you please.

But watching my cases linger on justice’s vine has me wondering whether ten cents a day is too great a rate of compensation for some judges. What will I tell my client’s about their cases next year at this time?

Reprinted courtesy of the Connecticut Law Tribune.

Victims As Pawns, Connecticut Style

2010-08-11T07:18:00.000-04:00

Connecticut's constitution gives alleged victims of crimes certain rights. Among these are the right to be heard before the court accepts a plea bargain, the right to be heard at sentencing and the right to be treated with fairness and respect. Surprisingly, the constitution does not give to victims the most fundamental right of all: the right to stop a prosecution they do not want to take place.

Consider the following fact pattern: A young woman under the age of eighteen reveals to a third party that she has been sexually abused by her step-father. This information finds its way to a mandated reporter, a person obliged to report it to authorities. A criminal investigation begins. The child's outraged mother signs medical releases for the child's information. The child is interviewed. Prosecution ensues.

Several years pass between the allegations and the trial, as is customary in Connecticut. (Rumor has it that the state will soon change the logo on license plates to "Justice Delayed.")

By the time of trial, the alleged victim, now eighteen, wants no part of the trial. She moves overseas to live with relatives and refuses to return to the United States to testify against her step-father. What rights does this young woman have?

I tried to find out yesterday in a Connecticut courtroom, where I represented just such an alleged victim on these facts. R.P. authorized me to make every lawful effort to stop the trial. Evidence was set to begin yesterday.

The judge gave me a respectful hearing and then summarily denied every motion I argued.

Among other things, we argued that the right to be treated with decency and respect was a constitutional right much like the federal right to due process: it needed to be given flesh and blood in the hurly burly of actual litigation. How is this young woman treated with respect and dignity when she has no say in whether this prosecution goes forward? Giving her rights to comment only on the plea is weighted against the presumption of innocence. Do we only want to hear from victims when they are a pawn or token of the state's prosecutorial activity?

Of course, the judge suspected that the woman had been intimidated by family members not testify. Without saying as much, he intimated that giving victims the right to stop prosecutions would yield to the inevitable sorts of pressures victims feel whenever a crime is charged against a family member. That is a valid concern.

But a blanket rule that insists that the prosecution has the right to haul go to trial over the objection of the person most affected by the alleged misconduct seems one-sided. The issue is preserved for appeal, should evidence proceed today. It is by no means clear to me how they state can proceed to evidence in the case without a victim, although it seemed determined to do so.

More disturbing yesterday was the trial court's refusal to rescind the releases signed for the child's medical records by her mother before the child was eighteen. The judge wanted the young woman to appear in court herself to make that claim. I argued that doing so would expose her to a subpoena in the very case in which she was refusing to testify. Would the court consider permitting her to appear with immunity from subpoena from the state, a sort of limited appearance to contest jurisdiction only, the old form of such struggles at common law? The answer was no.

So victims can object to punishment, address the court about a defendant, be advised about the proceeding and more or less be treated well: They just don't have the right to tell the court that the prosecution ought not to take place at all. There's something wrong here.

What To Do About Docket Creep?

2010-08-10T06:31:00.000-04:00

I almost envy those folks who practice in jurisdictions with short statutes of limitations and fast-moving dockets. In my state, Connecticut, docket creep is the norm. You can't get some judges to act even by pleading with them. Cases linger seemingly forever.

I have a couple of federal civil rights actions on the docket of one judge in particular. He's a lifetime appointee with decidedly eccentric views of what is reasonable. A decade or so ago, I won an illegal search case in his courtroom. The jury awarded my client all of a dollar in damages, but I was entitled to attorney's fees. I submitted an application for about $5,700 for this very simple case.

The judge thought that was unreasonable, so he awarded a fee he thought consonant with the verdict: One-third the gross proceed of the litigation, or thirty-three cents. I am sure he thought it was funny.

Only someone with lifetime employment could make such a ruling.

I wrote the judge awhile back asking him to docket two of my cases for trial. They have been sitting for a long time with no activity of any sort. In one case, a defense motion for summary judgment has been denied; in another no motion was filed. The discovery deadlines have long since passed.

I was polite in my letter. My clients simply want their day in court. What am I supposed to tell them in their semi-annual calls? I've run out of excuses for a court that won't act.

I am beginning to wonder whether there is some deeper meaning to the judge's award of a thirty-three cent fee. Perhaps it wasn't malicious or twisted at all. Perhaps that is the judge's assessment of an honest day's work. It sure looks that way based on the court's inability to call my two cases.

I wonder if the judge will refund to taxpayers any salary he thinks he has taken but not earned.

A Personal Note To Elena Kagan

2010-08-08T11:54:00.002-04:00

You did it. You set your sights on one of the nation's top jobs and spent a lifetime pursuing it. You spared no effort to accomplish your goal. You bent your will steadfastly and brilliantly to the task. Your resume glitters. You are a star of the bar, and now a justice on the United States Supreme Court. Congratulations, Madame Justice. As you sit in your new chambers today you should feel justifiable pride in all the you have accomplished and you should look forward to the future. No one, least of all me, can take it away from you. You are a brilliant woman and now, finally, a jurist.

But you have still never stood next to a man or woman in the well of a court who risked everything in a confrontation with the government on the result of a verdict. Sadly, not one of your colleagues has ever done that. You join a club of jurists who determine what the law is and is not but yet lacks any critical perspective based on experience of the law's power to shatter the lives of little people. I hope you can understand, Madame Justice, why some of us view your ascension to the bench as simply more of the same old brilliant gruel.

Our paths have never crossed, and there is a good chance they never will. I did not attend an Ivy League law school; I am not a law professor; I have never worked for the government or a big firm. I graduated from a second tier law school, the University of Connecticut, and have spent the overwhelming majority of my career representing folks accused of crimes or suing state actors under federal civil rights statutes. I lack the diplomatic and social skills to garner the necessary support to become a judge. Most days, it is simply a struggle to pay my employees and meet my firm's expenses. My clients typically have little or nothing with which to meet the challenges of a prosecution.

By the time a case of the sort I handle reaches you, the client is long forgotten. If there was an error at trial, the record speaks for itself. The man whose life depends on your ruling is someone you never see. It worries me that you have never once in your career sat with a client facing indictment and listened to him plead with you to make prosecutors understand that their perspective on the facts is wrong. It worries me that the errors you will dismiss as harmless aren't of the sort you have ever even seen committed in a courtroom. A jury is for you merely the stuff of legend: You've never asked a jury for anything. You think jury and you see a room of people presumed to be reasonable and presumed to follow the law. Madame Justice, there are no reasonable people; there are merely people with reasons. But how would you know that?

Years ago, I argued many cases before a colleague of yours, Sonya Sotomayor, when she sat on the United States Court of Appeals for the Second Circuit. I found her always to be well prepared and possessed of a keen and penetrating intellect. She was one of the few judges on that panel who seemed actually to enjoy the intellectual give and take of the law. But time was always short at argument. She had a tendency to ask a hypothetical question and then press me to move on when I tried to answer it. One day I stopped her when she did that. "Judge Sotomayor," I said, "you did that last time I was here. I'd love to engage you in a philosophical debate about these issues. When are you going to call to invite me to dinner for us to hash some of these issues out?"

Imagine my surprise a year or so later when Judge Sotomayor called. This was before she was nominated to the Supreme Court. I will count as a high point of my career a dinner I had with her and former Solicitor General Charles Fried in Manhattan. Yes, I was overmatched intellectually, and lacked the sense to listen more: but for a moment, I felt that the law was the common possession of us all, and that three lawyers of differing perspectives and temperaments could share views and learn a little something. I give Justice Sotomayor credit for not forgetting that the law is not all glitter and polish: That she reached into the ranks of the bar to listen and to exchange views moved me. She has not forgotten where she came from, and although she worked as a prosecutor, and not a criminal defense lawyer, she never forgot the sights and sounds of a trial court. Get to know Justice Sotomayor, Madame Justice. Whether Wise Latina or not, she has plenty to teach. And go ahead and tell her Norm sent you.

I wonder why no former public defender sits on the Supreme Court. Why no trial lawyer? Why is every justice a variation on the same theme: Ivy League, former federal law clerk, former judge or dean? Are people's lawyers not good enough for the high court? What message does that send the very people whose lives are often defined by the decisions the Court makes?

Cherish your new role, Madame Justice, but please don't get too comfortable. Try to learn about trial, about the rights at issue in a courtroom. Never again will you look for work or need to aspire to anything other than excellence and the pursuit of justice. Go ahead and unpack your boxes, settle into the palatial chambers bought and paid for by the people. But try, please try, to remember that the decisions you make are about real people in crisis.

How long, President Obama, how long until a people's lawyer is nominated to the Supreme Court?

Prisoners and Slaves

2010-08-08T09:22:00.002-04:00

It says something about me, I suppose, that my preferences go to the long-timers. But my list of fantasy cellmates consists mostly of folks doing life for their crimes of conviction. I was reminded of that yet again this week when I spent some time, very little time, mind you, with a man convicted of murder. He's a former member of the Hell's Angels. The state thinks he killed a witness on orders from a superior in the biker's group.

Mike, I will call him, is in his late 40s. He has already been away for more than a decade. But he is trim, fit, and seemingly at peace in a situation most folks would find impossible. Unless he has the genes of Methuselah, he will die behind bars. And yet there is a quiet strength about the man, and an aura of modesty, that makes time spent with him almost a spiritual oasis.

After we talked through the business that brought me to his prison, I asked the following: "How do you reconcile yourself to the situation you are in? You look fantastic and seem totally at peace with your surroundings."

He assured me he'd rather be out in the world, but that prison is really just a place in which your body sits. He placed two fingers to his temple, tapping his now salt and pepper head. "I don't let them in here," he said. He will do his bid; his bid will not do him. My thoughts turned immediately to Epictetus, a slave, but free in ways most of us never are. We become slaves to status, possessions and appearances; prisoners are stripped of many of the easy opportunities to fritter away their lives.

Perhaps it is easier to face prison when one knows he will never leave its confines; readjustment is the hardest part both of becoming incarcerated and being released from prison.

Heidegger wrote from a cottage deep in the woods, but Being and Time could as easily, perhaps more easily, be written in a cell. How many are the lawyers who have sidled up to me in a courtroom and complained of all the time wasted in our profession. Never come to court without something to read, I tell them. Take your revenge on the time that wastes us. A prison cell is the incarnation of a stark philosophic truth about unsparing time; it wastes us all.

Mike's calm stood in contrast to the scene I confronted at a different prison earlier in the day. A person wanted to see me about new charges. He'd just been arrested. His life was in turmoil: One day a man with a home, a job and the press of many demands. The next day, a federal inmate, facing decades of time in a box. I checked into the prison and sat waiting in the visiting area. I dozed for a while as I waited. When I awoke, a guard came by to apologize for the long delay. "No worries," I said. "I need my beauty sleep."

But when I'd slept enough for seven beauties I made further inquiries. I learned the man I had come to visit had gouged his wrists the night before. Prison officials weren't sure they'd let me see him. That, of course, was not an answer I was prepared to accept. I asked for permission to see him in the infirmary. Denied. I fussed that the man had a right to legal visits; a right to know that in his darkest hour there was someone in the world who cared enough to come to his side no matter where he was. I mused aloud that I might not leave unless until I saw him, wondering whether they'd prepare a cell for me. An hour later I saw the man. He lacked Mike's calm; he was just learning about how time can waste a man one day at a time.

I spend a lot of time talking to clients about prison. I've litigated claims about prisoners, taking one case all the way to the United States Supreme Court. I've spent so much time looking at this institutional beast that I now feel the beast looking into me. When I consider all the men and women I have met who are serving life or facing death behind bars I find myself ranking them in terms of their spiritual strength. Some of the strongest men I know are looking at life through eyes that see beyond despair, and despair is, in my view, the deadliest sin of all.

Don't get me wrong: I want to live a full and complete life without time of my own spent behind a prison wall. But that doesn't mean I cannot admire some of the men I have met there; men who may be prisoners but are no longer slaves. Mike is a giant.

What To Make Of Omar Thornton's Rampage?

2010-08-06T07:48:00.001-04:00

In 1967, Detroit burst into flames. People got shot to death in what amounted to race riots. Paratroopers occupied the city to restore order. I was 11 years old and living on the city's lower East side. I took it all in stride. The violence seemed about right to me. Detroit was a racist shit-hole. I wondered what took so long for people of color to strike back. Years later, while a student at Columbia, I'd look uneasily over to Harlem and wonder when it would erupt. Racism was and is alive and well in the United States. I even avoided law school preferring political philosophy as a field of study: Why devote years to studying institutions that could not survive, I thought.

So you might think I am nodding a sort of "I-told-you-so" smile over Omar S. Thornton's bloody rampage in Manchester, Connecticut. Accused of stealing beer from his employer, a beer warehouse, the young man was ushered into a meeting with union and management. Resign or be fired, they told him. He took a gun out of a paper bag and shot the place up, killing eight people before killing himself.

I was in a court about 30 miles from Manchester when news of the shooting broke. No one thought race then. Someone had gone postal at a workplace. Thoughts turned to jilted lovers and disgruntled employees. These sorts of events happen, and the roots of the violence are usually mundane.

Before he killed himself, Thornton spoke for about four minutes with the Connecticut state police. The 24-year-old man told the officer: "This place here is a racist place." Family members told the press in the wake of the shooting that Thornton had long felt victimized by both his employers at the Hartford Distributors, and by his union, the Teamsters, on account of his race. Both union and management deny racial harassment.

When I first learned that the shooter was black and all the victims were white I worried in a plantation-owner sort of way about copy cat crimes. I have represented many people of color in employment-related disputes. Anyone who believes, even for a moment, that the color line is not alive and well in the United States lives in a dream world. There are simmering tensions. There is black rage and white resentment. The "N" word is often spoken in hush terms.

Attorney General Eric Holder is dead right: We are too cowardly to meaningfully discuss race in the United States.

Even so, I am not prepared to excuse of justice Omar Thornton's rampage. He is not the warrior Malcolm X pretended to be. If every dispossessed Omar Thornton in the country were armed and took aim today at noon, the country would be no better off by 1 p.m. As deeply satisfying as it must have been in some rage-soaked way for Thornton to shoot and kill, this rage merely destroyed: It built nothing other than a castle of sorrow and caskets of shame. One of those caskets contains Omar Thornton today.

This is not the first time I have heard someone complaint that the Teamsters in Connecticut have issues with race. Nor is it the first company to be accused of racism. But neither is Omar Thornton to the first employee, black or white, to be accused of theft from his employer.

I don't know whether Omar Thornton was a thief. I do know he was a murderer. And I do not know whether his employers and union were trying to sell a little Jim Crow with their Budweiser; it wouldn't surprise me if they were.

I do know that race matters in the United States. A person's life chances are determined largely on the basis of socio-economic class. Many people of color live the legacy of slavery. The result is an economy and society composed of many different Americas. The privileged and talented get great rewards. Those less fortunate are forced to settle for far, far less: Too often the line between haves and have-nots corresponds to the color line. A person forced to the margin, whether white or black, will come to believe that the current regime of laws, institutions and social conventions are illegitimate. Omar Thornton apparently lived on the other side of the line dividing haves and have-nots.

I suspect there are millions of Omar Thorntons out there, fuming at the vast gap between the rhetoric and reality of American life. For many folks, that gulf is cast in racial hues; for others the chasm is purely economic. But for all there is a lingering sense that there is something askew in a nation that promises equality for all and then denies so much to so many.

I suppose some part of me still awaits the conflagration that never came in 1967. We will contemplate Omar Thornton's rampage and write it off as solitary rage. Perhaps that's all it is. Or perhaps its a sign of the fire next time, a sign we might want to heed before dismissing it as the act of just another discontented and angry man. Or maybe we will continue to shuffle along, promising more than we can deliver, and incarcerating millions who just can't get it right because we won't let them.

Proposition 8 And An Early Halloween

2010-08-04T23:50:00.000-04:00

Expect an early Halloween. This year's favored outfit is that of the Old Testament prophet. Expect the street corners, the airwaves and the world of print to be swamped with cries of doom and gloom. A federal judge has decided that a California ban on gay marriage violates the federal constitution. Heaven help us! Soon three-headed children will tumble from the wombs of young mothers; water will turn to blood in fetid streams once alive with fish; the Earth itself may stand still in its tracks. Expect the apocalypse.

Bring on wrath, I say. Unleash the fury of ill-concealed hatred. Weep, gnash your teeth, pray that Jehovah will turn us all to pillars of stone.

Do all this and more and then grow up and face the fact that opposition to gay marriage is rooted in nothing more than religious prejudice.

Chief Judge Vaughn R.Walker's ruling held that the state of California has no compelling legal interest in banning gay marriage. Hence, the judge tossed Proposition 8 into the ash heap. The case will now head to the United States Court of Appeals and then, inevitably, to the United States Supreme Court. It will easily become one of the most significant of the twenty-first century.

It was really no surprise that Judge Vaughn ruled as he did. The record developed during trial can support no other conclusion. The right to marry is a fundamental right, our courts have long held. The state can limit it only out of compelling necessity. No such necessity was demonstrated at trial.

Consider the arguments launched against gay marriage.

First, it is a right of recent vintage not rooted in our history or heritage.

This is true but irrelevant. Slavery is well rooted in our history and heritage, as is the doctrine of separate but equal as regards the treatment of African-Americans. But the great weight of this sin against human decency was unsustainable. We say that all men and women are equal under the law. We are closer than ever to meaning what we say as regards race relations, although we still have a long way to go.

History resolves little. While I do not subscribe to a theory of historic progress, the fact remains that yesterday's hypocrisy is no moral guidepost.

Second, the very purpose of marriage is procreation and society's need for stable families.

This is a subtle two step than seeks to bootstrap an obviously true proposition onto a dubious assertion. Yes, a society needs to replicate itself. Children must be raised amid love and stability. This is a truism. But that doesn't mean that only a biological mom and a biological father are up to the task. There are many children without nurturing adults to raise them. There is no reason both parents cannot be members of the same sex. None whatsoever.

The claim that the sole purpose of marriage is to promote families is one-step removed from assertions that sole legitimate value of intercourse is procreation. How many people really both believe and practice that? Our courts have recognized that sexual relations express something deep and nourishing.

Finally, society is imperiled by easy tolerance of homosexuality. Frankly, this is risible tripe. I suspect the closet antics of Catholic priests have done far more to harm young people than exposing a child to a gay teacher or scout leader.

My how the right will fume. This is judge-made law in defiance of the people, they will say. To the states belongs the power to govern health, education and welfare. This is spiritual abortion, they will eventually say. It's Halloween, I tell you. Everyman is now Jeremiah.

Whether this ruling stands on review is an open question. We will see ever more clearly that law is politics writ obscure. But for today what pleasure to see hope on the faces of those long scorned. It is almost safe to be different today. Almost, I say. Hatred never dies without a fight. Ask the slaves.

Reprinted courtesy of the Connecticut Law Tribune.

When Is It A Good Time To Talk To The Government?

2010-08-04T06:20:00.000-04:00

One of the cases of which I am most proud is a case involving a prominent man who was never arrested. Police had questions about his conduct. He contacted me. We answered the questions and provided details. Had we circled the wagons and told law enforcement to take a hike, the man would most certainly have been arrested. Although I am confident he would have been acquitted at trial, the allegations would have destroyed his reputation. The case raises a difficult question: When should you talk to the police?

First things first: An unrepresented person should not talk to the police. Period. That leaves far too much to chance. You have a right to remain silent, and a right to obtain counsel. Use those rights. Police officers are trained on interrogation techniques and have no legal obligation to be honest. You are not trained and, when confronted with an authority figure, will most likely be compelled to be honest, even if it is against your interests. People confess all the time out of the misplaced belief that confessing to a cop is good for the soul. Repeat after me: Cops aren't priests; the soul is not their watch.

But suppose a detective knocks on your door and wants to talk. Or that your receive a target letter from the federal government informing you that you are the focus of a criminal investigation. That's when you should immediately lawyer up. It is sometimes the case that timely and quick intervention by a lawyer can spare you the trauma of an arrest.

Most often, once the police come calling, the decision to arrest has already been made. You are being visited by an officer looking for icing on the cake. Confessions are, after all, solid evidence in most cases. But suppose you've done nothing wrong. Or that even if you have broken the law it is not in the manner or to the extent that the authorities believe. In these cases, a lawyer can do you a great deal of good.

Not long ago, a young man came to see me. He was accused of molesting a niece. He told me he had already spoken to the police, but had denied the misconduct. I predicted an arrest. The allegation of one victim, however old, is enough to prosecute. I regretted the decision of the young man to speak to the police. "A weak case is often bolstered by corroboration of the inessential," I told him. I contacted the police and told them to have no further contact with my client.

Months passed and there was still no arrest. Then an unexpected call. There would be no arrest. The complainant was not found credible. My client's statement to the police helped focus the investigation.

I realize the last two paragraphs undermine, rather than support my premise about needing a lawyer. I view the case as a rare exception to a rule too often proven by a high conviction rate among those who talk to police. While I won't be a slave to consistency when experience is teaching, I am still prepared to play the odds: Lawyer up.

In the federal system, where investigative grand juries can grind away in secret for months before you even know you're in trouble, you should seize the opportunity to engage the government. An ambitious prosecutor looking to make a name on your back will send agents trolling through your bank records, your associates, your friends, your enemies, your former colleagues and clients. Some of these people have reasons all their own to malign you: some will speak nuanced half-truths; some will lie. You want to learn about these things before you are indicted.

But what about the right to remain silent? Sure you can assert that, and you can tell the police to go enjoy some safe sex by, er, well, f*2king themselves. "I'll see you in court," is deeply satisfying bluster. But far better to avoid court if you can. Bad things can happen there.

I am not bashful about asking federal prosecutors for what I call a "show and tell proffer." A client and I will meet with a prosecutor and federal agents. We will strike a deal. Nothing we say or do, including facial gestures, will be used as evidence against my client.We will simply sit down and listen to a brief overview of the case contemplated against my client. In such instances, the government doesn't show its complete hand, but it shows enough to permit you to determine what's coming.

Suppose you hear the government's claim and know it to be false or filled with misleading half-truths. At that point, you can negotiate a proffer: You can waive your Fifth Amendment right to silence in exchange for a commitment not to use your words against you. In other words, you can answer questions that may divert the prosecution. This is an extremely risky move and should never be done without counsel. First, you can be prosecuted for lying during the proffer, so don't. But there is a deeper and more subtle danger: In most parts of the country, case law holds that if you commit to a theme in a proffer -- some other dude did it -- you and your lawyer are bound to that theme at trial. Thus, a lawyer who argues against what his client said in a proffer, opens the door to the use of the client's proffer. I hate that rule of law, but it's there. So be careful.

The sad fact remains that in most cases by the time you receive a target letter the indictment decision is already made. The feds may be reaching out to try to scare you into cooperating against another witness. Or they may think their case is so strong they want to overwhelm you into pleading to charges without an indictment. But there are cases in which knowledge is power and where you can strategically intervene to avoid prosecution.

I've been neck deep in discussions for the past several weeks with the feds seeking to avoid indictment of another client. Thus far, we've learned plenty about the government's claims. We have effectively rebutted some, forcing the government to reassess. I remain guardedly optimistic that the government will not indict, but am preparing, as is my client, for the worst. Along the way, I am learning more and more about the government's claims, and, should the case go to trial, will be better prepared to defend.

Discussions between your lawyer and prosecutors are not admissible evidence. If it is too risky for you to talk to the government yourself, your lawyer can represent your position in private discussions that will almost certainly not be admissible as evidence. Again, a strategic word might divert prosecution; in the worst case, your lawyer learns the government's case.

Machiavelli once counselled keeping your enemy close. Negotiating with the Devil is tricky business. But once you smell his sulphur, it's time to ask questions, and, perhaps, to answer a few in a form that will not come back to haunt you. I know of several people whose reputations and liberty were salvaged in such discussions. I count those cases as silent victories.

Blagojevich: Trial, Personality and Justice

2010-08-03T03:00:00.006-04:00

I am not sure what the sputtering was all about on the eve of the closing arguments in the Rod Blagojevich trial. United States District Judge James Zagel issued a standard ruling prohibiting the defense from arguing that the government's failure to call certain witnesses damned the government's case against the former Illinois mayor. Sam Adam Jr. the lawyer, not a lite version of the popular beer, fussed and fumed: I'll go to jail in a heartbeat, he said, rather than obey a ruling such as this.

It was the second time that week that I wondered whether the 38-year-old Chicago lawyer knew what he was doing.

Friends in Chicago tell me the young lawyer is well regarded, a passionate advocate with great jury appeal. He is to be forgiven showing signs of some stress fractures in this high profile case. But the law regarding adverse inferences for missing witnesses isn't exactly new. Lawyers are generally prohibited from arguing about what witnesses the other side did not call might have said had they testified when those witnesses are equally available to both sides.

This rule makes more sense in civil cases. The plaintiff in such a case can call a defendant as a witness. Both sides typically put on evidence in civil cases. The rule against gratuitously asking for adverse inferences when a party does not call a witness is justified in civil proceedings where the witness can be called with ease and without legal consequence by either side.

But in a criminal case, the government and the government alone has the burden of proof. A defendant need not call a witness and need not himself testify. Great fuss is made in jury instructions about the government having the burden of proof. It seems to me the law is wrong to prohibit the defense from arguing an adverse inference when the government refuses to call a witness. Suggesting that the defense could just as well have called the witness in question involves a subtle shifting of something very much like the burden of proof. Such rules of law are what persuade criminal defense lawyers that many judges are an adjunct to the prosecution.

Surely Mr. Adam knew this long before United States District Judge James Zagel issued his ruling. It should have come as no surprise.

But it appeared to, and the result was unedifying. Mr. Adam blustered about going to jail. The judge had to remind the lawyer he'd do his client no good behind bars. So Adam gave a closing argument in which he rambled, later telling people he'd argued only 70 percent of what he had planned.

It was almost as awkward as Mr. Adam's promising the jury they'd hear from Blagojevich during trial, and then deciding not to call the witness at all. Sure, I understand that the decision to testify is the client's and the client's alone. But it is a risky gambit to promise something and then not deliver it. I know, I know: simply claim that the government did not prove its case; plans changed. That's one way to explain this change of course. Another, of course, is to wonder whether the defense lost its focus as the trial blossomed. It looks that way from afar.

I've watched the Blagojevich trial with an uneasy sense that trial really isn't a young man's game. Mr. Adam has a reputation to make. This is his moment in the Sun, and he wants to bask in it all he can. Win or lose, reputations are made in cases such as this. Mr. Adam will always be the guy who ate ice for lunch during the trial of the former governor and lost all that weight. But for my money, Mr. Adam made the mistake every trial lawyer makes at various points in his career: the trial became too much about him.

Announcing that he'd rather go to jail than follow the court's ruling was a rookie's bluster. Mr. Adam should well have known that this ruling was likely, and he should have prepared his argument on the missing witnesses in such a way that it could be delivered without permission by the judge. Trial lawyers learn year after year where the hidden lines are drawn in a courtroom. We are paid to tiptoe quietly up to those lines by means often subtle. Mr. Adam drove a diesel tractor trailer into a church and then complained that he was making too much noise. He'll outgrow those theatrics. All of us do.

I'm reminded of a professor's remark: You will find teenage math prodigies, but not teenage prodigies in philosophy, or other arts requiring judgment or experience. Thirty-eight is young; the owl of Minerva is not easily found.

In the end, the pursuit of justice is not about the personalities of the lawyers, although there is a school of trial advocacy that teaches otherwise. Personality is what celebrities have. Mr. Adam needs to decide whether to be a celebrity or a trial lawyer.

Mind you, I am not claiming to be any better than he. I've acted up in courtrooms far too many times. But I've learned that just because something feels good, it is not necessarily right. My experience blogging about the law reinforces that. Just the other day, I was called out by another blogger I respect, Mark Bennett, for a "passive aggressive" style: I write about issues without naming those who espouse various positions.I should, apparently, spread link-love and name those with whom I disagree. Perhaps that would be better marketing.

But I don't want law blogging to become the equivalent of Sam Adams Jr.'s tantrum: Issues matter to me; personalities don't. There's a nasty trend among bloggers to engage in ad hominem tripe: John Kindley of People v. State just got mobbed. He wrote a contrarian's piece about justice and criminal law. What followed were comments about his profile on his webpage, etc. This is tedious grammar school antics. Sure, it's fun to huff and puff and finger point at one another. But to what end? Writers, like trial lawyers, are mere vehicles for the messages they convey: personalities rarely matter. If someone writes something I think ill founded, it is far less aggressive, whether passive or not, simply to disagree, than it is to advertise his or her error more effectively.

Sam Adam Jr. looks like he's got the makings of a great lawyer. I hope he and his client dodge the bullet in this case, although I have my doubts. But win or lose, I hope Mr. Adam decides that living large isn't the same thing as effective representation of a defendant in need of an advocate first, and a showman second.

Justice and Factual Guilt? Not My Problems

2010-08-02T07:09:00.002-04:00

I am partial to libertarians, so John Kindley of People v. State has a soft spot in my heart. To others, Kindley has a soft spot in his head, at least when it comes to the topic of justice in the courtroom. Kindley has sparked a discussion that has not exactly gone viral, but has been passed back and forth among a couple of law bloggers. See Kindley here.

The issue is whether criminal defense lawyers do justice. Kindley believes they ought to aspire to do so. Justice is, after all, all that there is. I don't share Kindley's view. Frankly, I am not sure Kindley even shares the position he has asserted.

What drew me into this discussion was Kindley's reliance upon several quotations from Vincent Bugliosi. The former LA prosecutor is now a defender. But he only chooses to represent those people he believes are factually innocent. He notes he doesn't want to spend 100 hours a week defending someone accused of a crime of violence if the person actually deserves punishment. As a result of Findley's piece, I've been reading Bugliosi; I love reading books by lawyers more accomplished than I am. There is always something to learn.

What seems to be missing from Bugliosi is any sense of the function of a criminal defense lawyer as a check on the state and on the self-righteous fury of the mob. What's worse, Bugliosi seems to confuse law and morals.

Whether a client has actually done what is alleged rarely crosses my mind when making a decision about whether to represent someone. It just does not matter to me. Law is not morals. I am not a priest or a psychologist. Killing may be against God's law, but I am not a member of the celestial bar. I presume God can take care of His own enforcement issues.

I defend people accused of engaging in conduct prohibited by the state. The state defines the crime by way of legislative fiat. Prosecutors then seek to punish those they have good reason to believe broke the law. My job is to defend people from the state. In doing so, I am inspired by the conviction that the state, like any other human institution, is far from perfect: It makes mistakes, acts in fury, and is capable of waste. Bugliosi lacks a tragic vision of what the state can do. Oddly, even with his many years in the criminal justice system, he writes as though the state were the church.

But even assuming the state were rational, even God-like, I would still defend a person accused of a crime. In other words, I would defend a person I believed to be factually guilty against the state. The role of Devil's advocate comes easily and naturally to me. (TX to Mark Bennett for catching typo this a.m.)

How could I do that with good conscience?

It isn't a question of conscience, or a matter of morals. The state must prove its case beyond a reasonable doubt. Dicta in our cases say, and I believe, that it is better for ten guilty men to be set free than for one innocent person to be convicted. The reason for this is that a state that is too powerful is a danger to liberty. If the state wants to take anyone of us and put us in a cage, it should have to fight for the privilege. Otherwise, we will all find ourselves in cages of one sort or another.

Factual guilt is not legal guilt. A person can commit a heinous act but be not guilty as a matter of law. That happens when the state fails, for any of a number of reasons, to meet its burden of proof. When this happens, I am not troubled at all. I simply don't want an omnipotent or omniscient state governing me. Such a state suffocates.

Where does that leave justice? I am not a minister of justice. I defend people within the scope of the rules of professional conduct. Justice is not a goal I seek; rather, it is, if the system performs well, a product of a process of which I am but a mere participant. As a lawyer I do not pick and choose clients based on my conception of justice.

Kindley has been criticized for aspiring to a Bugliosi-like posture. That criticism seems misplaced to me. Lawyers are free to pick their clients any way they choose. If Kindley and Bugliosi have more fastidious tastes for factual innocence than I possess, I begrudge them nothing.

I confess to a certain sorrow over Kindley's view, however. I love People v. State as a blog devoted to libertarianism. I learn things reading his page. I am hoping he becomes more of a libertarian rather than less. If he does, perhaps factual guilt or innocence will become irrelevant to him too.

A New Year Begins

2010-08-01T10:11:00.000-04:00

I suppose I will never stop reckoning years like a student. Some part of me still believes that the year begins right after summer vacation. Thus, today marks the beginning of another year. I returned to the office this morning after a month away. Just as when I was a student, the new year excites and terrifies. I always wondered then, as I do now, whether I would be able to meet the challenges ahead.

It's funny how little things change, even after the passage of so many years. But the fact is I spent more than a quarter of a century on the student's clock. I completed grade school, junior high school and high school in Chicago and Detroit. Then it was on to college, graduate school and then law school. Some part of me is still a student: the other night a new textbook arrived in the mail on the use of DNA evidence in litigation. I performed the by now ancient ritual that comes with the arrival of each new textbook: I looked at the table of contents, and then leafed through the book, looking at the illustrations, tables and charts. The thought that I might master this material excited me; the work it would take to get from my present state of ignorance to that distant goal intimidated me. I can do all that is required, I reminded myself; I just cannot do it all at once.

Life is a lot more challenging now than it was as a student. Then all I had to worry about was passing tests, a task that was easy enough in retrospect. Now the tasks are more complex. I represent people in conflicts that often define them for the rest of their lives. There is no textbook I can survey on the eve of a new year to see where the road ahead leads. The road ahead is open, even if experience suggests the sorts of destinations I can be expected to visit each year. This year will bring heartache, joy and fatigue. It will be a year like many others.

A few nights ago, I sat in something like dread and sorrow. I didn't know whether I could walk into the tornado of grief that comes of running a small practice devoted to criminal defense and civil rights. So few of the folks who come to see me bear glad tidings. Most are afraid, or angry. I am in my office on a Sunday morning with appointments scheduled, a familiar ritual. Strangers will come and tell me their woe; I will tell them what I think can be done for them. We will negotiate fees. Listening takes courage.

But after entertaining fear, an old and odd resilience returned. I could almost feel it seeping into me, just below the radar of what I can easily perceive. I know how to fight, and I am good at it. People come to me because I am, like all trial lawyers are, a prize fighter. The fights most of my clients are engaged in are not fights they chose; they ask me to fight for their liberty and for their dignity. I am flattered and stunned that someone would trust me with something so valuable. I may not have the larger truths of a priest to dispense, but I am entrusted nonetheless with something sacred: I am a criminal defense lawyer, the keeper of another's hope. From small sparks I am expected to fan great flames without becoming consumed in the conflagration: No wonder I face each new year with anxious trepidation.

But the new year has begun. It started about an hour ago. I am lucky to have had the past month to find peace, solace and joy in my wife and our dogs. They have given me much by way of internal strength. Comes now the time to share what strength I possess. Comes now another year of warfare, joy and sorrow. Comes now another in a seemingly endless series of years that I know will someday end. But not today. Today is for fighting.

Mass Incarceration, Legitimacy and the DMV

2010-07-31T09:24:00.000-04:00

Did you know that the state of California imprisons more people than do the nations of France, Great Britain, Germany, Japan, Singapore and the Netherlands combined? We have 2.3 million people behind bars in this country. That is 25 percent of the total number of persons imprisoned worldwide. By contrast, the population of the United States constitutes five percent of the world's population.

There is something seriously wrong with these numbers. We call our selves the land of the free, and then we imprison more people per capita than any other nation. Nowhere does the rhetoric and reality of American life collide quite so violently as it does in the criminal justice system.

I was thinking about that this week as I stood on line at the Department of Motor Vehicle to renew my expired car registration. Three white, middle-aged and prosperous looking folks were standing within ear shot. The woman had just purchased a used Mercedes Benz convertible. It was a dream to drive and ride in, she told the admiring listeners.

Talk then turned to how much she paid for it. It was a bargain, she reported: She paid $10,000. She wondered how much she would have to pay in taxes on the car as she thought the car was more likely worth close to $20,000.

"For cars of that age, the DMV simply accepts your estimate of value," one man said. "You don't need to report the actual amount you paid and pay all that tax on the sale."

This struck the woman as a revelation. Her reaction surprised me. Here were three apparently prosperous Americans openly discussing tax fraud in a public place, conceivably within earshot of regulatory personnel manning the counters of the DMV. They assumed that cheating on taxes was all right, so long as you don't get caught, of course. In other words, there is nothing intrinsically wrong with tax fraud, so long as you can avoid the consequences: the found it morally acceptable to cheat but pragmatically undesirable to get caught cheating.

A sense of legitimacy is the glue that holds a civil society together. Without legitimacy, a sense of fairness among free and equal people, there is really no meaningful social cooperation. Does the high incarceration rate in the United States reflect a legitimation crisis?

I think it may well. There are simply too many criminal laws. No one knows just how many criminal laws circumscribe the conduct of any of us at the state and federal levels. Prosecutors have broad discretion to charge or not on a bewildering range of offenses: I read recently that two lobstermen are now serving lengthy federal sentences for importing shell fish in Central America in plastic bags rather than boxes. We put people in prison for that?

Our penal code fails miserable when it comes to race, drugs and sex offenses. A young black man in the United States has a one in three chance of imprisonment during the course of his lifetime, as opposed to a six percent chance for a white male. We incarcerate folks sometimes for life for selling narcotics, but permit alcohol and nicotine to be pedaled without consequence. We make it a crime for young people to fall in love. For far too many Americans the criminal law is a foreign curse, a plague that falls upon them much like cancer and must be endured as a state-sanctioned illness. Over criminalization breeds a crisis in legitimacy.

What is amazing is that we are doing this to ourselves. Rather than fighting back and asking questions, jurors far too often make decisions about people without demanding answers about what the consequences of their verdicts will be. We've gone mad, really. We incarcerate more and more Americans for more and more prohibited acts, and we don't even ask why. Perhaps that's why folks chat freely about cheating on their taxes in public places. If government is simply a curse, a necessary illness much like a fall cold, then doesn't it make sense to swap remedies whenever possible with fellow sufferers?

Time, Forever Short, Seems To Fly Amid The Play

2010-07-30T08:49:00.000-04:00

The dogs know something up. I swear it. I am sitting with a cup of coffee planning the day. Odysseus saunters up tossing a sock into the air. I take the sock, reminding him that they are not toys. He sits looking at me; his sister Penny hustles over, she sits too. They are extra obedient this morning. We frequently call Penny ostentatiously good. Today they are as close to perfect as border collies can be.

Do they really know that I return to work after a month off next week?

To say that I have enjoyed my time with my wife and dogs is an understatement. We've lived at a slower pace, one in which there is more time to respond to the dogs' longing for work. I swear that Odysseus has become a different dog. He's calmer. The other day, he simply sat on a couch absorbing all the love I showered on him. This is not unusual behavior for Penny. But not Ody is in on the act. To live is to be adored, he seems to whisper.

There's little doubt that dogs perceive the energy a person gives off. I suspect that our dogs can sense my ambivalence about vacation's end. I've had to spend a lot of time this month on the phone and attending meetings involving the pending federal indictment of a client. But most of this work was done at home. The dogs seems to like that. They can watch me talk.

But I have a full week in the courts next week: sentencing in one criminal case, an arraignment in a new federal case, a suppression hearing in a third case, a motion to withdraw in another case. And then comes Wednesday. The week looks to be a blur, and some part of me is already preoccupied with preparation. The life of a litigator is one of constant planning and contemplation.

So this morning, Odysseus is my guide. Once my feet hit the floor, he came rushing to my side. As I brushed my teeth, he sat beside me, calmly awaiting instruction. I walked down the stairs just behind him; he kept looking back over his shoulder to check on me. I sat for awhile with a coffee. Both he and Penny remained close. Indeed, even know Penny sits at my feet, just out of arm's length, looking pensive. She knows I am a handful, and she is resting, awaiting her next assignment. Ody sits just around the corner, outside, surveying a flower garden lest a chipmunk or squirrel saunter too close.

Today will be a day of domestic chores. The garden, which explodes with produce just now, needs weeding. I need to finish cleaning a chicken coop. I also want to clear a little more unwanted growth from our emu's pen. It's been hot and humid this past month; progress on my outdoor tasks has been slow.

The dogs will watch me perform each chore, and will offer me one tennis ball after another throughout the day. Their work is fetching what I toss. They look forward to my praise.

This morning I swear they know that my mind is elsewhere. A new client is coming to see me Sunday morning. I have pleadings to review. Phone calls to return. Soon the lawyer's wheel will whirl again and I will do my best to tap dance atop it, hoping not to fall too often.

"Stay home with us," Ody says. "I agree," chirps Penny. I need to remind them of why we named them as we did. Penelope was ever faithful awaiting the return of her man. And Odysseus, ever wily Odysseus, struggled through his wandering to find a way home, a task in which he succeeded against all odds. These dogs represent home to me. They yield a sort of faithful courage and serve as an ever present reminder than amid a life of struggle there is peace and a sense of home within reach, I need only to open my heart to be there.

I hear what these dogs teach. They remain a gift I do not deserve. They are good, even best, friends. They know a lot today, and today I am lucky to have no task more important than learning what they have to teach.

The Futile Battle Against Illegal Immigration

2010-07-29T10:16:00.000-04:00

I am the son of an illegal immigrant. My father was born in Crete. He and his father snuck across the border from Canada to the United States in the 1930s. My father eventually forged papers to create a paper trail that permitted him to live in the United States for the vast majority of his 84 years. So successful was he as a forger that when he died, no one was really sure how old he was, even his wife.

But for all that he was an American. He spoke flawless English. He sired a son and a daughter, although, truth be told, I’ve never met my sister; I take my father at his word on this. He lived for many years as an outlaw, robbing payroll trucks at gunpoint and living off the books on the proceeds. He shot a man once. And when he was about the age I am now, he settled down to a long and productive career helping troubled teens find their way in the world.

And somehow through all the chapters and heartache of his life the republic survived. Indeed, I argue it got stronger.

I think of my father when I read about the debate on immigration reform, and when I watch the lingering conflict in Arizona about the state’s new immigration law. We kid ourselves if we think we can build a wall high enough to keep struggling people seeking minimum standards of living from entering this country. We diminish the quality of life of all Americans by creating yet another set of laws and law enforcement officers empowered to snatch and grab folks who simply want to live as well as we do.

My father told me he was born and spent his early years in Sfakia, a port city looking toward North Africa. He and his father fled to North America because of poverty. They settled on Detroit because it offered opportunities they did not have in Crete. My grandfather worked and sent money home to his wife and struggling family. My father broke free of Crete and turned his face to the new world.

Neither of these men read civics books before they traveled here. Neither thought that government was of much use or relevance to their pragmatic concerns. Both viewed the world warily, as a place of opportunities and obstacles. For my father, the law was an obstacle to the opportunities he sensed. So he ignored the law.

My hunch is that most of those crossing our border from the South are just like my father. They pledge allegiance to nothing more than survival. They come here any way they can without any sense of loyalty to the laws and institutions governing this country. For many, government and law lack legitimacy because the law seeks to drive a wedge between an immigrant and something like an inchoate sense of the right to a decent life. A sense of legitimacy is an acquired taste; loyalty is a luxury only those two steps removed from starvation can afford.

My father died several years ago. I never told him I understood his struggle. I never told him I was proud of what he had overcome and become. When I look at the illegal immigrants swimming against the current of our laws now, I see my father’s face. I see his face and I know that no power alive can keep people from fighting to survive. We kid ourselves thinking we can close our borders. We never will.

Reprinted courtesy of the Connecticut Law Tribune.

Jessica Lunsford And Hypocrisy

2010-07-28T01:58:00.000-04:00

The rape and murder of nine-year-old Jessisa Lunsford in 2005 was a terrible thing. The fact that her attacker was a violent sexual predator with a past reinforces our fear that the world is filled with dangerous sexual predators. But the fact remains that most people accused of sex offenses are harmless, and do not deserve to be treated like quarantined beasts. Jessica Lunsford's father knows this. He knows it because he might just be a sex offender himself; his son certainly is, at least by standards of current law.

Question? Why were lawmakers so quick to pass Jessica's law, demonizing people without distinction on the urging of a man who had deleted images of child pornography in his own computer the day his daughter went missing in Homasse, Florida in 2005? Why wasn't John Lunsford charged? Why wasn't his 18-year-old son required to register as a sex offender several years later when he pleaded guilty to sexual contact with a minor? Why, finally, the double standards?

Don't get me wrong: I don't think that possession of pornographic images on a computer makes a person a sex offender or a danger to society. If Mark Lunsford had such images in his possession the day his daughter was kidnapped, raped and murdered that should not make Lunsford a criminal.

But the prisons are filled with men who did no more than Jessica's father did. Why are those men in prison? Why are they required to register as sex offenders on release and to be forced into substandard housing, labelled a public health menace and then prosecuted for technical violations of the law?

One reason that sex offender laws have become undiscriminating and driven by hysteria is our tendency to make rock stars of rage out of the surviving members of the family of a violent crime. When Jessica became one of those rare children who are abducted by a stranger, all of our hearts went out to the family. But rather than sequester Mr. Lunsford away and offer him the counseling he needed to cope with shattering grief, we opened the airwaves and legislative chambers to him. We permitted him to make a poster child of Jessica, and politicians piled on to ramp up laws that are already far too draconian.

Why aren't lawmakers extending similar attention to other men who had child pornography in their computers? They are victimized too?

I blame Oprah, frankly. Panic and sympathy sell. We gave Mr. Lunsford a pass because of what he has lost. It is no wonder that victims of the current sex offender hysteria are outraged at the hypocrisy. Mark Lunsford is permitted to stir the demons lurking in other people's homes without being held accountable for the demons in his own computer. See: child porn on the computer the day she went missing?

It gets worse, of course. Joshua Lunsford, Mark's son and Jessica's brother, was eighteen when he was charged with felony sex assault of a minor. He was permitted to plea to a misdemeanor. He spent 10 days in jail and was not required to register as a sex offender. Our prisons are filled with men serving prison sentences measured in far longer terms for the same offense. Why did Joshua catch a pass?

Once again, don't mistake me. I don't think Joshua should have gone to jail at all or been required to register as a sex offender. My understanding his contact with a 14 year old was consensual. For many years in the United States the ages of consent for sexual contact was far lower than fourteen. Romeo wasn't a felon when he wooed Juliet.

But the Lunsford's ought not to be given a libidinal past because of Jessica's murder. When Joshua turned up at his own sentencing wearing a T-shirt with Jessica's picture on it, where was his father to insist that son not engage in such tasteless theatrics? And why did Clark County Ohio Judge Tomas Trempe give this boy a slap on the wrist while presumably hammering others?

Jessica Lunsford has been used by politicians pandering to frightened voters to increase monitoring of those on sex offender lists and to increase mandatory minimum sentences. But it turns out that Jessica's family knows more truths than one. Losing a child to a stranger is horrible, but not every person possessing child pornography, and not every Romeo in pursuit of a Juliet, are sex offenders. If the Lunsford's believed that, father and son would be registered now, and their neighbors warned that predators are in their midst.

Why Fox News called upon Mr. Lunsford to serve as a spokesman for ramped up sex offender news suggests that the network is using Jessica too. To what end?, I ask. Perhaps it's high time to stop sanctifying the rage of crime victims. We say that no one can be a judge in their own case. But let a child get murdered, and grieved parents get a free pass: they get to sublimate their rage into national fame. Just ask John Walsh, who, decades after his son went missing, still hosts a national television show.

There is something sick about a society that tolerates such rank hypocrisy and hysteria. The illness isn't caused by so-called sex offenders.

Who Killed Jessica Lunsford?

2010-07-27T07:15:00.001-04:00

I ought to be grateful that Fox News even hosted a debate. Normally, the mere mention of the topic has folks running for the doors. Acknowledging that the issues are complex is progress. When it comes to reform of sex offender legislation, there is too often too little time given to debate. So thank you to Fox News for the four minutes devoted to the topic on Monday's "Fox and Friends." It was a good first step.

The discussion pitted the father of a child abducted and killed by a sex offender against a man convicted of the possession of child pornography. On the one side, the inconsolable rage of a victim's family; on the other, a demon man who had never hurt anyone so much as himself. It was a debate pitting two forms of pain against one another. But tell me, Fox? Did you really expect meaningful public policy debate by offering a seat on the forum to a man undone by his tragic sorrow?

Mark Lunsford, Jessica's father, plead from his heart. He told viewers that no one in the history of the mankind had ever been reformed by sex offender treatment. This is, of course, categorical nonsense. Liberally translated his statement comes down to this: Nothing we do will ever bring his daughter Jessica back to us. His is the infinite sorrow of a man whose loss can never be made good. Jessica was murdered in 2005 at the age of nine by a violent sexual predator.

Of course, Mr. Lunsford was unaware of the numerous studies, including one by Human Rights Watch, that find America's amalgam of sex offender laws to be little more than an obscene mockery of justice. We've created a body of law devoted to combating stranger danger. Never again, we hope, will a stranger abduct and kill a child, we utter. But the sad fact remains that we know there will be other abductions. The human psyche is perverse, and we cannot police desire at the very same time we appeal to sex to sell everything from toothpaste to cars. The laws passed in the wake of Jessica's murder requiring ramped up sex offender registration and harsher treatment of a sex offenders of all types satisfy the need to act, but do so at the cost of social justice.

Debating against Mr. Lunsford was Kelly Pierce of Georgians for Sex Reform, an affiliate of the National Reform Sex Offenders Laws. Mr. Pierce was convicted of looking at child pornography. He is therefore a sex offender. But he is not a violent sexual predator. When Mr. Pierce referred to such things as the low recidivism rate among non-violent offenders, Mr. Lunsford looked surprised. Rarely do advocates for tougher sex offender laws let facts get in the way of their demand for more draconian laws.

Georgia has been a hotbed of reform energy, with recent successes in chipping at away at the perimeter of over-inclusive registration requirements. Central to the arguments for reform in Georgia has been the argument that too broad and aggressive a set of sex offender laws actually harms children. It does so first simply by failing to draw meaningful distinctions between violent and non-violent offenders. It simply makes no sense to require everyone who has colored outside the proscribed libidinal lines in any way whatsoever to register as an offender: this overtaxes law enforcement, which then loses track of the truly violent. Similarly, draconian residency restrictions force offenders of all sorts into tiny ghettos where the lack of meaningful residential and employment opportunities yields the very stressors than undermine efforts at rehabilitation.

Mr. Lunsford was not deaf to these arguments, but he urged litigation to correct these problems. The courts are a hollow hope when it comes to reform of sex offender legislation. Judges run scared far too often of the rage of lawmakers. Effective reform must begin in legislative assemblies. Those affected by sex offender laws need to appear before lawmakers to tell their stories. I know this is difficult and there deal of fear among those who have been victimized by these laws. But lawmakers need to see the faces of those they are stigmatizing with insufficient reason.

So a word of thanks to Kelly Pierce for a heroic performance on Fox News. As everyone with any sense, Mr. Pierce did not kill Jessica Lunsford. A criminal justice system that chooses willful blindness to this is hardly worthy of support. We need more and better debates in the national news media about the harm our sex offender laws is doing to too many Americans, Americans like Kelly Pierce.

Letting The Sheep Go Their Merry Way

2010-07-25T11:43:00.005-04:00

One thing that dogs teach is patience. Odysseus has taught me plenty. When it comes to sheep, he is a monster. I can train him only at the cost of hurting him. That's a step I am unwilling to take.

Ody is a border collie, a member of a breed cultivated for its instinct in herding sheep. But in the battle of nature versus nurture it is sometimes the case that nature trumps. When that happens, it is time to back off.

When my wife and I decided to make a venture into the world of dogs six years ago, we researched breeds. We were raising poultry at the time. We wanted dogs smart enough to stay away from the birds, which free range and come and go as they please. My initial fancy turned to golden retrievers: they are loyal and affectionate. What more could a guy want? My wife, the intellect of the family, wanted smart. She wanted dogs we could train to stay away from the chickens and guinea fowl. So she settled upon border collies. We acquired two, without realizing just what a ride we were about to take.

At the time this choice was made, I had no interest in sheep. I did spend a summer on a sheep farm in Michigan many years ago, fencing in some 40 acres for a black sheep farm. But that farm worked without dogs. The animals were raised primarily for their wool. I didn't know about border collies then.

We took Ody and his sister Penelope to Glen Highland Farm in the summer of 2006. Warren Mick, a champion shepherd, was there with a small flock of sheep. My dogs, who had shown little or no herding instinct with respect to fowl, were transformed into near homicidal maniacs once they saw the sheep. A deep trigger was switched.

"Where'd you get these dogs?," Warren asked. We mentioned the breeder's name.

"Oh, I know their father. He was also too keen for sheep." It turns out that the world of border collies is a small one. Ody and Penny came from a line that may well have been overbred for herding.

The concept made no sense to me at first. I imagined that dogs were more or less a tabula rasa at birth; given the right instincts, a dog could be trained. But suppose that the instinct were too keen? Could a dog be broken of what amounts to something like a compulsion?

I tried with Ody. We worked another summer with Warren. We worked with a shepherdess in Northeastern Connecticut. We traveled to the Delaware Water Gap to spend a week with another trainer. We made some progress, but in the end, I sensed something wild and unreachable in Odysseus. (Penny, you might wonder, is a different story: She could be a very successful sheep dog with sufficient time. But I am unwilling to work one dog at something the other cannot do.)

Over a couple of years time, I fell in love with the romance of sheep herding. I read books on sheep and shepherds. I read about trials and competitions. I watched videos. But Odysseus seemed to be wired in a way that I could not unravel. I spoke to one trainer who told me we could get Ody in line, but we would have to cause him physical pain to break him. I was, and am, unwilling to do that to a dog I love. It is not in me to return his loyalty with injury.

I spoke to the breeder who sold us Ody and Penny a year or so ago about Ody. "If I had known you wanted a sheep dog I would never have sold him to you," she said. Of course, I did not want a sheep dog when the deal was struck. I wanted a loyal and smart companion, which is exactly what I got. That brief conversation opened my eyes. I was frustrated because he would not do something I wanted him to do, something his sister does well.

This past summer, I kept Ody off sheep and away from the sheep. Instead, we worked with agility and play endless games of frisbee toss. Ody is still transfixed by sheep, of course. One day, we were working on a jump sequence when he turned away. He began to trot toward a meadow where several sheep grazed. "Ody," I called. "Come here." He paused for a moment, considering obedience to me. But then some ancient gear was turned and he was off in a sprint, heading for the gate to the sheep meadow. All I could do was smile and walk over to console him. He misses the sheep.

And Penny? She doesn't seem to miss the sheep at all. She's simply happy to play at whatever it is we do. I am happier, too, without the battle of Ody versus the sheep. A relaxed dog makes for a relaxed man.

A Few Questions For Gerry Spence

2010-07-25T09:54:00.001-04:00

I have a question or two remaining for Gerry Spence. Since he no longer publishes my comments on his blog, I will post them here. (He recently returned to blogging after a hiatus of several months. I shot a note to welcome him back, but the note sits, "awaiting moderation," in Internet oblivion while scores of others have been posted.) Several of his readers will no doubt find this piece and send it along. I am something of a bete noire for messing with the master in the minds of those with a greater need to believe than I possess.

Question Number One: How many criminal cases have you tried to a verdict as defense counsel?

I ask this question because, frankly, I am struck with shame-faced awe over your claim never to have lost a criminal case. I have lost many. Each loss sears me. I cannot accept the sort of glib mentality that asserts that loss is part of what criminal defense lawyers do, so get over it and move on. That is callow chatter.

Mark Bennett's recent piece on picking winners inspires this question. Implicit in Bennett's piece is the suggestion that Spence is a masterful marketer. I concede that you can only market what you have to sell. Lawyers are free to represent a person coming to them for any of a number of reasons, including how well the client's needs fit within a lawyer's "business plan." But still, if you are going to announce that you have never lost a criminal case, it seems fair to respond to a follow up question: How many criminal cases have you tried to a verdict as defense counsel?

It won't do to say you cannot recall, although, frankly, I understand that answer. I can no longer recall how many cases I have tried. Over the years, they all tend to run together into one long Kafkaesque montage. So in fairness, Gerry, is it more than 10? Fewer than 25? A good faith estimate will do.

Do I expect an answer? Yes. Spence sends private notes from time to time, so I know my words find their way to him. I don't necessarily expect him to answer here, however. The mountain must go to Mohammed in his universe. He neither comments on the blogs of others or acknowledges publicly what others have written. To do so would be a form of power-sharing, one of the deadly sins in his universe. So answer anyway you can, Gerry. It is a fair question.

Question Number Two: Since you have never lost a criminal trial as defense counsel does it follow that you can win any case?

Again, Bennett's essay crystallized things for me. Telling the world you cannot lose is perhaps the world's best marketing device. The world will beat a path to the door of the lawyer who cannot lose a case. What price freedom?

I understand the view of those who say we are expected to lose. But, frankly, I never really expect to lose once trial begins. A guilty verdict always surprises me, deflating my ego and undermining my confidence. If you cannot, Gerry, win any case that comes your way, then how do you pick and choose the cases you will take?

Spence was a good and faithful mentor to me years ago, and he deserves better than the treatment I have given him in public comments. But as his Sun prepares to set, I, too, must reckon with the role I permitted him to play in my life. I went to Wyoming years ago to learn from him, and I learned plenty. But what I learned tasted a little sour when I saw the boast on his web page that he is "America's Finest Trial Lawyer." Modesty must count for something, even among warriors. But suppose he has no reason for modesty? If he's tried scores of cases and never lost, I must respect that. If he can win any case at all, I must concede his skill.

I still don't have answers to these questions. I am hoping he will provide them.

Must Listening: Daniel Schorr and Frank Zappa

2010-07-24T12:56:00.005-04:00

Yeah, Schorr couldn't sing, but he did anyhow. And with Frank Zappa. Somehow, this strikes me as almost sublime in a homely sort of way. Listen here.

Is The Law Social Oncology?

2010-07-24T09:54:00.000-04:00

A former law partner used to say that the practice of law is really social oncology: Criminal defense and civil rights lawyers spend their time dealing with things that just don't fit within a well-functioning social organism. A man accused of murder represents an aggressive malignancy; a person complaining of discrimination presents a challenge to a settled practice in a given location. But using illness as a metaphor is perilous, as Susan Sontag noticed long ago. Using illness as a metaphor to metaphorically describe something else altogether is perhaps impossible.

I am sometimes stunned into silence at the sheer waste of it all: The law is messy, untidy, and raw. It is rarely the case that a legal conflict does anyone real good. Trial, for example, is a zero-sum game: Two parties collide: one wins and the other loses. I suppose that trial represents the surgeon's approach to illness. Cut, cut, cut and discard the leavings. That may work in medicine, but what about the law? In our work, the leavings are people and their families.

Consider the carnage done in the name of justice in our criminal courts. This week's Economist reports the by now familiar statistics about mass incarceration in the United States. We have 2.3 million people in prison. That exceeds the population of 15 states. Our incarceration rate exceeds that of any other wealthy nation. And this ignores the effect of incarceration on families: Imprison a father, and leave a child home without guidance. We imprison too many, for too long and for inadequate reasons. How is it that in the land of the free we so freely treat so many people as though they were little more than social tumors?

I am not claiming that a man or woman prone to violence should be set free to terrorize others. There are people who should be removed from society. But treating each breach of the law as a crime worthy of incarceration is like treating the common cold by surgically removing noses: the results are unnecessary and leave disfiguring scars.

A model other than the surgeon's scalpel needs to be brought to the criminal law. Perhaps we can learn from alternative medicine. Is the person who committed a minor crime in need of something other than surgery? Treating a social irritant in his or her environment makes more sense: Criminal law as homeopathy?

The oncology model is more troubling on the civil side. In these cases, the irritant might well be a settled social practice in need of change, e.g., housing discrimination. But it might also be a person with expectations that are wholly rational, yet entirely unreasonable. Representing a person wholly capable of rationalizing his or her desires yet deaf to what society is prepared to offer is one of the law's most difficult challenges. Where the oncology there? Is the client the tumor? Or is the society a form of blood cancer, circulating toxic fluids?

The real danger in the social oncology model is that it creates the illusion among lawyers that they are immune to the very illnesses they treat. Others suffer indictments, or mistreatment at the hands of others: We lawyers diagnose and treat. Except we are not immune. Some of the most difficult and disconcerting things I have seen are lawyers themselves facing criminal charges. I've seen confidence men reduced suddenly to childlike terror. The line separating lawyer and client is entirely arbitrary.

I am not prepared to discard the social oncology model, but I am suspicious of it. In a better world, a utopia, lawyers would not be necessary. The rule of reason would govern and like minds would concur about the right solution in any conflict. But this world is far from perfect. Things go bump in the night. Passion, not reason, rules, and we are all members of herds in conflict with other herds. The law might better be conceived as a skilled animal trainer, shaping behaviors around common norms. We work by increments shaping expectations in an environment filled with people who are not so much different in degree, but in kind. I sometimes feel that we are many different species united in appearance only.

The law may not be social oncology. We are too quick to remove those from our midst who transgress norms that may make little sense. Ignorance of the law should be an excuse when the law becomes so complex that even lawyers aren't sure what is and is not prohibited. But people and processes aren't tumors. The oncological metaphor is too violent. Treating people as though they are cancer is wrong. I wonder what metaphor better captures the emotional and social violence of the law?

Anger: I Haven't Missed It At All

2010-07-23T19:39:00.001-04:00

My wife and I have taken the better part of July off this year. The plan was to take the entire month, but the feds got interested in a client of mine. I interrupted the vacation for several days to try to talk them out of an indictment. I still don't know whether I succeeded, but I suspect not. So as I write this, I expect to have one more week off, unless I need to spend another day or so locked up with federal agents and prosecutors. Then it is back to the law.

Today I found myself thinking that I do not want to go back. There is too much anger in it to suit me. I've not missed the fear, the rage, the anger of people undone by their situation in the world. For the past three weeks, I've simply let go of anger. It feels good. I am cleansed, refreshed, and lighter on my feet. Or so it seems.

Aristotle wrote of anger that it is difficult to be angry in the right way, to the right degree, at the right things and in the right manner. I wonder whether his concept of moderation sheds light on what Christians mean by sin. Surely, the love of the wrong thing, in this case anger, can warp a soul. How many are the lawyers I've seen sigh, some nearly on the verge of tears, when discussing their clients' rage?

My temper has certainly cost me much. Too often, I've perceived a slight where none was intended and then reacted in anger. I am quick to judge, and quicker still to attack, even if the attack is not justified. Some defect in my character or upbringing made anger a convenient weapon for me. I use it to defend, even when the only thing I need to defend against are the shadows I cast.

The law suits an angry man or woman. One can check concerns about the nature of truth or goodness at the courthouse door and navigate guided solely by a client's conception of his or her interest. The hard work of sitting cheek by jowl with a client and asking whether their desire is reasonable is also optional. Many are the lawyers who simply fight for what their clients want, regardless of whether the client's desires are wise.

I came to the law from other pursuits. I despaired of an academic career in large part due to a failure of nerve. I did not believe there were larger truths worth conveying in the form of teaching. Yet I realized that this realization was itself a larger truth of the very sort I thought impossible. Rather than work my way through this deeper contradiction and commit to principles I found acceptable, I succumbed to something like nihilism. I found the law liberating for the very reason that it did not require me to make epistemological commitments broader than the narrowly conceived interests of my client. The law had mere instrumental value.

That view no longer sustains, and I am once again forced to examine commitments and attitudes that make me uncomfortable. It is no longer enough to fight for the sake of fighting. I want to fight for something worth believing in. But cynicism and scoffing are old friends. Leaving them behind requires courage; it also requires turning aside from a form of anger that was cheap substitute for something more destructive. Anger, I conclude, is less damaging a sin than despair.

Every summer I vow to return to the law a better man. Late each summer I return only marginally chastened by the failings I have observed in myself. This year has been a long meditation on hope and love, lessons, paradoxically, I examine again and again through my dealings with our dogs. Come August 2, when I return to work, I will be challenged to find the same sort of warmth in the people around me that I find in my dogs. Of course, I know that a good deal of what I find in the dogs is what I give to them. Can I make the leap and give the same love and care to clients?

I genuinely do not know. I found myself thinking today that I have had enough of the law. There are so many young and talented lawyers out there, a small voice says step aside and let them bear the rage of strangers. But that seems somehow like a cop out, like letting sin win. I am not ready for that either.

So return I shall, chastened as always by a growing awareness of the presence of sin in the world, and struggling toward the grace necessary to survive a profession in which the worst we can to one another and to ourselves is our daily bread.

Gates v. Crowley: Ogletree Tells Half The Story

2010-07-23T16:38:00.002-04:00

I was reluctant to read Charles Ogletree's book on the by now much overblown confrontation between Henry Louis Gates Jr. and James Crowley. This was a garden variety event mismanaged by both the arresting officer and the arrestee. But for the fact that Gates is well connected and famous the case would not be remarkable.

But Gates teaches at Harvard about race and racism. So when he was arrested after a ruckus at his own home in Cambridge, Massachusetts, the fur was sure to fly. President Obama referred to the police behavior as stupid, thus polarizing left and right. Things were calmed only when the president agreed to have beer with Gates and the arresting officer. This was a case in which class determined the outcome.

When my clients get arrested for contempt of cop and charged with some minor offense such as interfering with an officer, or, if a member of the general public was within earshot, breach of the peace, no one outside the courtroom cares. These cases are typically resolved quickly and quietly.

But I picked up Ogletree's book, The Presumption of Guilt: The Arrest of Henry Louis Gates Jr. and Race, Class, and Crime in America, out of a sense of professional responsibility. I wanted to see what Ogletree could add to my understanding of the conflict between ordinary citizens and police officers. Ogletree taught me much, but not about the law.

The case is now familiar: Gates returned to his rented home in Cambridge with another black male after a trip to China. Exhausted upon arrival at his front door, the lock jammed. One of the men forced entry with a shoulder, a move that looked suspicious in the broad light of day to those in the neighborhood.

A police officer was dispatched. Officer Crowley arrived. He asked Gates for identification while in the home. Gates complied. Rather than leaving when shown an identification card making it clear that Gates belonged in the home, Crowley asked Gates to step outside. Gates was outraged and protested. There was a standoff that attracted the attention of passersby. Once Gates left the house, he was cuffed and arrested. Prosecutors declined to press charges and the case was dropped.

It is black letter law in every jurisdiction that a person detained by the police, even wrongfully detained, must comply with the officer's commands. Stepping outside to discuss the matter was not the constitutional outrage Gates thought it to be. The Fourth Amendment is not an instrument of protest in a police seizure. Gates was a fool to escalate the confrontation, even if he was the sort of fool I would root for each and every time.

Crowley, of course, was a bigger fool. He was dissed in public, and by a black man, no less. An arrest was inevitable, even if unwise. As Ogletree points out, in this confrontation, at least at the outset, Gates' race trumped his class. He was arrested for being black and proud in his own home. There is something deeply offensive and wrong about this.

So far, so good, and so obvious. But Ogletree fails really to grasp the significance of this confrontation. He claims to represent Gates. It is unclear whether that representation is in any civil capacity. For Gates' sake, I hope Ogletree does not advise him civilly. Not once in this book does Ogletree mention the havoc the doctrine of qualified immunity has wrought on claims of false arrest or illegal seizure arising under Fourth Amendment and brought under cloak of 42 U.S.C. Section 1983. This pernicious doctrine gives the benefit of the doubt to police officers in a close case. Gates' case is such a case; it has summary judgment written all over it.

The real story in this case is not that Gates was arrested. These sorts of arrests take place daily in the United States and are perfected against people of all races. The real story is the use to which this arrest would have been put if Gates were not a good citizen, buddy of the president's and a Harvard professor. Had Gates been a young black man on probation, the arrest might well have signaled a violation of probation proceeding, without benefit of a jury trial or even a suppression hearing. A person without means and influence would have been asked to stipulate to probable cause or pay a small fine to make sure the police were covered in the event of a civil suit. Gates got the Donald Trump treatment. Class mattered in this case, and was dispositive.

I fault Ogletree for writing half a book, but I still recommend the volume. The epilogue is a lengthy set of reports from black men about their experiences with racial profiling, harassment and misperception. Reading these reports was deeply moving and a present and necessary reminder that the color line still separates and divides in ways that are intolerable. It is perceived to be a crime in many parts of the United States to drive while black; skin color matters to investigating officers.

Ogletree is right to shine a light on race and racism in the criminal justice system. But the light he shines has been dulled by too many years behind a lectern preaching to the choir. He needs to spend more time in a courtroom getting his ass kicked from one end of the room to another to speak with the sort of raw energy necessary to inspire battle. I am not inspired to man the barricades for the leisure class just yet.

At one point in the book, Ogletree suggests eliminating peremptory challenges might help eliminate racism during jury selection. Perhaps. But it is so hard to get a case to a jury that I would still rather have challenges as a tool when selecting a jury. I would be willing to make a deal with the Devil if he were so inclined -- I'll give up peremptory challenges if we can also eliminate qualified immunity. Let's let the people decide constitutional cases and tell us what they think of the law. I trust them more than I do judges and the academy.

I've never met Charles Ogletree and odds are I never will. My heart aches at hearing about the role of race in the many miscarriages of justice that take place daily in this country. My heartache is compounded by the sight of a court system that has created legal doctrines to excuse all but the most blatant and obvious forms of misconduct. That Charles Ogletree, a Harvard professor, could write an entire book on a garden variety arrest and miss the legal significance of what went down makes my heart ache even more.

God Spelled Backward

2010-07-23T10:08:00.001-04:00

The best part of my summer is the time I spend at Glen Highland Farm in New York. We've just returned from a couple of stints there, about nine days with our border collies, Penelope and Odysseus. These dogs have trained my wife and me to be better listeners, and, perhaps, better human beings.

Those of you who are not dog people won't get the balance of this piece, so move on and read something elsewhere. Or read on if you like. What you will learn here is how a man can be grateful to two animals for their love and devotion. Although I am a man of many and often contradictory words, Penny and Ody have taught me simply to give thanks. That took a lot of work on their part.

But first a word about Glen Highland Farm. It is a border collie rescue facility founded ten years ago and operated as a 501(c)(3) by two refugees from the hard-charging world of accomplishment. Each summer, it runs a brief summer camp for adults. A few dozen dog owners camp out on the 175 acres and spend their days with their dogs at sheep herding, agility, tracking and other activities. Speakers come to talk about dogs and their world. After the adults clear out, Glen Highland runs several sessions for inner city kids who are taught the magic of the unconditional love of exceptional dogs.

We've gone to the camp for five years, and I am just now beginning to see how deeply a dog can challenge and even change a human being. Frankly, I am a typical camper: I cry when I leave. There is something comforting about being part of a pack bounded solely by the rhythm of our dogs.

Penny and Ody are intense animals. If you know border collies, you begin to understand what I mean. Our dogs are focused members of this breed. They are demanding, loving, loyal and energetic. They come from the same litter and have for almost six years now been a daily presence in our lives. This summer I have begun to understand that they are more than a presence, they are a gift, one of the greatest gifts I have ever received.

They are different. Ody is almost mirthful, in a vigilant sort of way. We call him the policeman. He seems to delight in running our land and running with us where ever we go, ever vigilant lest one of us get lost. He keeps a firm eye on Penny, his sister, always putting himself between her and any other animal that approaches. When we are not on our land, he even goes so far as to cover any waste she may leave with his own scent. lest anything come to think she is alone in the world. He herds his sister, reminding her always that he is present to protect her. I understand why people believe in guardian angels. Odysseus is an ever-present angel.

But Ody is not really the leader of our pack. Penny is the alpha. She herds my wife and me, watching us throughout the day at whatever we do. When I move, she is present and alert for a command. The moment I sit with hands free, she jumps up to sit next to me. She has learned now to fall asleep sitting on my lap with her head on my shoulder. She is fierce in her loyalty to me: we say she put the "grrr" in girl just as Ody out the joy in boy.

Border collies aren't for everyone, and Ody and Penny aren't for any border collie lover. These dogs have become more than shadows to my wife and to me. They are companions who communicate with facial gestures, body posture, and an occasional barks. Sometimes I think they have souls. Penny is an eternal mother ever present to remind me that whatever sorrow I behold she is there like a ewer, ready to pour infinite love and concern into the ravaged portions of me. This dog is magic, I swear she is. Some part of me responds to her love and is replenished. I say without shame that I grow richer each year she is in my life. Is it too profane to say she restores my soul?

Some folks believe dogs come into your life for a reason, to teach you something you need to learn. That is just beyond the limits of what I can comprehend with ease. My convictions run in the direction of chance, circumstance and chaos: that is the life I have lived from a boy onward. But I swear, sometimes and increasingly often, I sense a deeper pattern emerging: It is always Penny who leads me to follow, and Ody who stands at the perimeter to assure that all are safe.

Call me a fool, but I say you can learn great things from a dog if you learn to listen. Mine beckon me to trust and be freer with the love that is within in me. I can almost hear Penny tell me to let go and embrace the world around me, just as she does, completely and without reserve. I love that dog and always shall.

A lifetime of reading and arguing and thrusting into the night with such a frail light and I come finally to the realization that all I really need to know might be just what Ody and Penny offer. I wonder some days how it came to be that dog is God spelled backwards. I know it sounds silly to those without ears to hear. But I am hearing things I thought weren't possible: it is the sound of a dogs' love, and it is beautiful.

Here's more about Glen Highland, since I could not get the link to work: http://glenhighlandfarm.com/.

Hip Hop and Justice

2010-07-23T08:53:00.001-04:00

Books about race and criminal justice are typically depressing. In the war of the establishment versus angry black men, the establishment wins the power struggle, but is left defending a vulnerable castle. The moral high ground goes to the dispossessed. Because I am white by accident of birth, I am left banging a hollow drum.

Paul Butler’s Let’s Get Free: A Hip-Hop Theory of Justice is a welcome change of pace. Sure, Butler is an angry black man. He has plenty to be angry about. The lottery of life handed him a ticket that makes it almost impossible to win big, or to hold such winnings as he may acquire.

Butler was a federal prosecutor in Washington, D.C., in the public integrity division of the Justice Department. A graduate of Yale and the Harvard Law School, he was one day arrested and charged with simple assault. He went from the law’s pinnacle to the bargain basement in which we sell black lives at a discount.

In truth, his experience as a criminal defendant was not all that jarring. But the experience radicalized him in a polite sort of way. He left government work, became, gasp!, a law professor. His trajectory isn’t exactly that of a modern rider on some underground railroad. He retains the privileges conferred by attendance at a law school status factory.

But, and this is the rave, his heart is in the right place.

He believes in jury nullification and the role of jurors as a means of challenging the status quo. In a brief paragraph or two he asks what would happen in a world in which decisions about social justice were made by those least advantaged in our society, a move perfected and made philosophically robust by John Rawls in his Theory of Justice.

What group stands at the fringes of our institutions and power structure, looking in with hungry and angry eyes? Black men. And Hip Hop is the beat of this tribe. Can there be a Hip Hop theory of justice?

That’s a tall order, and Butler knows it. It is one thing to recite lyrics about the impact of mass incarceration of black men on those left behind, or about anger toward the police. These expressive moves reflect real tensions. Hip Hop hasn’t yet found its Immanuel Kant yet; and it may never.

I missed Butler’s book when it was published in 2009. I recommend it enthusiastically to anyone practicing criminal law. The system, to put it mildly, sucks. It is a massive shell game in which judges refuse to accept responsibility for the sentences they impose, pointing to lawmakers who create mandatory minimums. But lawmakers are ignoramuses about what goes on in a courtroom: It’s easy to chest thump in a legislative chamber and to pretend that one size fits all.

The criminal justice system lacks accountability, and we deprive the one body that could make a difference and speak truth to power of the information it needs to make reasoned judgments. I am referring, of course, to juries. Just how we have come to emasculate juries is a question Butler doesn’t answer. He merely reminds how wrong the practice is. Read Butler, and then lend a hand in the struggle to set juries free to make morally responsible judgments.

Reprinted courtesy of the Connecticut Law Tribune.

Arf, Arf, Arf

2010-07-16T21:24:00.002-04:00

My few regular readers know that dogs are an important part of my life. My two border collies, Odysseus and Penelope, run our pack during vacation season. So we are heading out bright and early Saturday morning to an off-the-Internet location to spend six days playing with sheep, working on agility courses, and otherwise enjoying ourselves.

The last time I was away for a few days I got anxious inquiries. Let me head them off with this note this time. I may not post again for another week.

It's a dog's life, you see ...