If you haven’t been to Legal Antics yet today, you have to go check out Nicole’s clip of Dave Chappelle.  Just do it.

A client came to see me on Thursday.  He was desperate to see me as soon as possible.  It was urgent, he told me.  A matter of life or death. 

Long story short, he believed that his demise was imminent if he didn’t pay off a former partner of his, and he couldn’t make the payment.  You can’t get blood from a rock.  He was a rock.  What should he do?

There were three sets of options, none good.  One was to go underground and wait it out.  He wasn’t well equipped to do this.  Second was to stand up to his former partner, announce his circumstances and dare the former partner to do as he must.  My client was unprepared to live with the potential negative consequences of this choice.  And third, go to law enforcement, tell the truth, and implore them to save his sorry, unworthy butt.  This was my advice, with the caveat that if he was to go along with this choice, he had to appreciate that he was making a commitment to be honest with them or he would suffer grievous consequences.  He affirmatively stated that he understood.

And so I acted on his instructions.  I made the necessary connections and persuaded a particular law enforcement agency that this was something that would interest them.  And the journey began. 

On Friday, I get a curious telephone call.  “Didja know that your client went to (competing law enforcement agency) a month ago with another attorney?”  Nooooo, he never mentioned that.  “Didja know that they declined?”  Nooooo, he never mentioned that.  “Wanna ask your client about it?”  Yeessssss.  Yes I do.

And so I spoke with my client.  Yes, he informed me, it was all true.  So why did you omit these details when we spoke?  Well, nothing came of it and so I thought it didn’t matter.  No, no, no, I said.  I’m not buying.  You knew exactly what you were doing when you lied to me, I told him.  How, I inquired, did you think I was going to properly help you when you decided to lie to me?  Why would you want your attorney to be the only guy in the room who did not know the truth?

Let’s jump to the point.  Information is the ammunition in the defense attorney’s gun.  We devise strategy based on information.  We use information surgically (please excuse the mixed metaphor), knowing how far to push in one direction and when to shift to another.  Without information, we are shooting blanks.  With bad information, we have the gun pointed at our own client’s head.  And we, the lawyers, are going to get splattered with blood when the gun goes off.

I don’t like to look stupid, and a lying client makes me look stupid.  I don’t like my strategy to fail, and lies cause failure.  I don’t like to disappoint my clients, and a lying client is a losing client.  And clients don’t like losing either.  They can be a bit funny about that.  Yet, they sometimes fail to see the connection between providing their lawyers with the ammunition needed to properly defend and protect them and their ultimately achieving their goal. 

Most lawyers, when confronted with the lying client, absolve themselves of responsibility since there is little they can do to help a person who brings failure upon himself.  I agree with this rationale, but still have difficulty letting it end there.  My expectations of clients are that they do not always make good decisions, which is why they end up needing my services.  Lying to me is just another bad decision, so I try to overcome it and still serve them.  It can be quite frustrating, and is almost always unappreciated by the client.  In a certain way, I become an enabler of deceit by prevailing despite having been lied to.  But I’m not their conscience, just their lawyer.

Despite my best efforts, the likelihood of achieving my client’s goal is significantly diminished as a result of lies.  I read them the riot act, but find that unsatisfying.  And ineffective.  So the answer is plain.  If your situation is bad enough to require the services of a lawyer, then do yourself a favor and give your lawyer the ammunition he needs to serve you.  It’s still your life.  At least for the moment.

Eighteen years ago, as the birth of my first child was imminent, I had an epiphany.  My Alfa Romeo Spider Veloce was not an appropriate car for a family man.  So I went out and bought a BMW 325i convertible.  I had a lot to learn about being a family man.

When I brought the new car home, my sister-in-law, then a full-blown teeny-bopper (an epithet that is still apt today), announced that when she grew up, she was going to get a BMW.  I responded, “save your pennies.”  As a result of that comment, all hell broke loose in my in-laws house and they never again felt mere animosity toward me.  It was now open hatred.  How dare I suggest that they’re little darling won’t have every shiny trinket she desires.  

This is my lead-in to a piece in the Sunday New York Times ong regional section, entitled, Not Your Mom’s Prom? Well, Hardly. by Kate Stone Lombardi (no relation).  The piece contrasts the 1970s view of prom life by a baby boomer with today’s, courtesy of our baby boomer kids.  I will resist the temptation to give you all the really good lines from the piece, so you will have to read it yourself, but the upshot is that proms today are a multi-day, megabucks affair designed to challenge the stamina of Paris Hilton.  And we, the same boomers who decided that it wasn’t worth the time to go to our own proms, are happily going to extremes for our kids.

How did this happen?  Where did we go wrong?  Are we reliving our wayward teenagerhoods through our children to compensate for our own poor decisions, or are we trying to keep pace with the Joneses so our kids aren’t cultural outcasts.   Kate Stone Lombardi thinks we are trying to be less clueless than our parents by giving our “coddled” children what they want to show them that we understand.  But then, she concedes that she really has no idea why we do this.

I’ve had this discussion with friends and acquaintances many times of the years.  Each person has their own twist on why they do it.  Some (including my sister) contend that their kids “deserve” such extravagance for their hard work.  This is the least persuasive to me.  The reward for hard work is a better life, not a rented Hamptons house of debauchery.  These are the people who enthusiastically support mindless excess, and I believe that they are reliving their youth through their children.  If you were a teenybopper with too much cash, how would you behave?

Others hate it, disagree with it and do not want to be a part of it.  And yet they are.  They struggle with the desire to impose values on their children, for to do so would be to isolate them from the mainstream.  They do not want junior to be the geek of his group, or worse yet to be without a group at all, because junior doesn’t have an Ipod.  It’s not the cost, as they can afford it, but the absence of values and the crass materialism that offends them.  And yet they cannot say no.  They can’t do THAT to their children.  So they are every bit as much a part of the downward spiral as the enthusiasts.

Finally, there are those who put their foot down and say “enough”.  They risk the ostracism of their children in the name of right and wrong.  Of course, it is the parents’ vision of right and wrong.  But they will not allow their children’s lives to be controlled by the lowest common denominator.  It’s a very risky position to take, as it invites a backlash from their kids that can have a devastating effect, particularly at a time in the children’s lives when their comfort level with mommy and daddy is at a low point.  Yet, the parents will not yield, secure in the belief that there is much more to life than this one-night (weekend?) right of passage, which they know will soon fade into memory and be replaced with the thrill of embarking on a fulfilling and vital adult life.

Consider the expectations we build by acceding to every teenager’s wish.  Does this reflect what they can expect from life?  I think not.  Is it as simple as it being “just a special day?”  Not that either.  Baby boomers as a group haven’t shown themselves to be the best of parents when it comes to saying “no” to their children.  But this is a dangerous acquiescence, aiding a grossly unrealistic vision of what life has in store for them.  It imparts a false impression that they are owed a wondrous lifestyle, filled with every shiny object that merchandisers can dream up.

But how do you keep them down on the farm after they’ve seen Paree?  The prom is oh so important.  For a moment.  Then it’s the wedding, with tuxedos, doves and the dreaded ice sculptures.  Why would someone who has never had cause to don formal attire in their life suddenly have a yearning for a black tie wedding?  “I want it to be special.”  It is special.  It’s your wedding.  Isn’t that special enough?  “It’s the most special day of my life!”  NO.  Every day is the most special day of your life.  Life doesn’t end as you drive away with tin cans dragging behind the Hummer limo.  See, you thought I wouldn’t appreciate modern choices.  “I want it to be unique.”  Another cookie cutter affair, with all the very expensive, yet utterly mundane, bells and whistles, and this is what constitutes “unique”. 

We are enabling the world that MTV and VH1 have been selling for years, only to watch our kids fall into a life of disappointment when they learn that everyone doesn’t get to live like Puffy.  We eschew the lessons of hard work and sacrifice in favor of obscene materialism and flash.   It’s one thing for them to want to grab something shiny; it’s another for us to guide their hand. 

So we can give them lives of joy by appreciation of things of substance, provided that all the other moms and dads don’t make us look like schnurrers for denying our children the necessities of life.  Like a BMW.

Bob Herbert writes today about some kids in Bushwick going to a wake.  A funny thing happened on the way.  Well, not really funny.

Wearing white t-shirts with a picture of the deceased teen and the letters RIP on them, a group went to pay respect.  On the way, the cops swooped down on them.  They were hauled away to the 83 Precinct, searched and held.  It’s not entirely clear why, except “unlawful assembly” was mentioned.  The kids didn’t know what that was (a separate indictment of the NYC school system).

Bob Herber wonders why.  Why do the politicians allow the cops to do this.  Why do black politicians turn away and pretend they are part of the officialdom that condones this.  Joe Hynes (he’s back!) says that it isn’t unusual for cases like these to be dismissed at arraignment.  So why bring them?  So why not investigate first?  So why not use the power of your office to go after the cops who do this to the children of Brooklyn who believe that you are there to protect them?  Why, Joe?

This is a big mountain to climb, and those of us who live in the cushy, protected and (dare I say it) white neighborhoods pretend not to see it or, more likely, just ignore it because it isn’t our fight.  It’s not our kids being hassled.  They better not do that to our kids.  If they do…Well, they’re gonna have to deal with me!  But they’re not our kids.  They are the children of the powerless, the uneducated, the poor.  And they have no champion to protect them.

I am not a cop hater.  Quite the opposite.  I am a hater of those who abuse power.  I’m not fan of ignorance either.  I believe that government has a duty to protect us, and that duty extends to everyone, including the kids in Bushwick.  There is good news here, however.  Very good news.  Not only child was shot and killed.  Small blessings.

I would like to write that this is the end of my Cop Trilogy that began with the Conway decision yesterday.  But I don’t really believe that it will be.  And I don’t believe that there is any politician, from Obama to Hillary, and certainly not Rudy who cleaned up New York at the expense of the bottom two thirds of its people, who will step up and risk the ire of campaign contributors by doing the right thing. 

When the Appellate Division, Second Department, reversed a criminal conviction, that’s news.  Some would say it’s because the trial judges in the Second are so good that reversals are few and far between.  Others would attribute it to other reasons.

But following on the heals of the First Department’s Conway reversal, possibly one of the most disturbing decisions in recent memory, the Second brings us People v. Feola.  No blood and guts in this one.  Frankly, a fairly straight forward false statement case, with P.O. Feola being prosecuted for sending the Kings County District Attorney’s office a false affidavit.  In an unsigned decision (but with the bench led by Presiding Justice Stephen Crane of Subway Vigilante,  Bernie Goetz, fame), the Court held the evidence insufficient.

How could this be?  According to the Court, the prosecution failed to prove that the signature on the affidavit was that of Officer Feola.  Huh?  Suddenly, they don’t know how to prove a signature?  If it were some skel whose signature was at issue, they would have about a thousand exemplars to prove it.  But here, we have a police officer, who has likely signed at least a hundred (if not a thousand) complaints.  They should have been able to prove his signature blindfolded.

The problem in this case arose when the ADA faxed the affidavit to the officer at the precinct.  He received a faxed affidavit back.  It bore what appeared to be Officer Feola’s signature.  But that, alone the Court concluded, was insufficient.  What other proof was offered the decision doesn’t say, though the Court does note that “The People inexplicably failed to proffer any direct evidence that the affidavit bore the actual signature of the defendant. “

Well, consider if you will the implications.  Does this mean that complaints (or Informations, as we New Yorkers call them before they are duly converted by a supporting deposition) must hereinafter be dismissed at arraignment for facial insufficiency when they do not contain an original signature?  Is it only when the accusatory instrument is faxed, or does copying count?  If the faxed signature is untrustworthy in Feola’s case, why is it sufficient to put some other poor schmuck in jail?

But the real question is here is why did Charles (“Joe”) Hynes’ office throw the case?  Was it sheer incompetence or the desire to curry favor with the boys in blue?  There’s just no way that the trial assistant was so utterly clueless that he didn’t know how to prove a signature.  Ah, it’s good to be a cop when you’re a criminal defendant in New York.  Milton Williams words, in his dissent in Conway, keep a’ringing.

“This case presents a perfect example of why police misconduct is such a persistent, endemic problem in this city and country; it is condoned in high places.”  This line, from the dissent by Justice Milton Williams, a former police officer, speaks volumes.

Perhaps one of the most disingenuous and facially disgraceful decisions I have ever read, the Appellate Division, First Department, has reversed and dismissed the charges against Police Officer Mark Conway in People v. Conway.

I cannot wait for the opportunity to cite the majority’s language on a “weight of the evidence” argument, though I somehow doubt that they will apply it with as much latitude as given Officer Conway.  Since when did the Court conduct a de novo review of the facts after a conviction, especially when the case was tried by a judge, and elect to view the evidence in the light most favorable to the defendant! 

There is no criticism of this decision that can express the disrepute it brings on the court better than Judge Williams’ dissent.  Please read it.  And if you ever wonder why the cops feel omnipotent, or why regular people feel that the system is a sham and they are powerless to fight it, a decision such as this will make it clear. 

As a little added bonus, for those of you who believe that bad stuff never happens, an unrelated Youtube video.  Beak out the popcorn:

Gov. Spitzer announced yesterday that long-time Chief Administrative Judge Jonathon Lippman has been appointed Presiding Justice of the Appellate Division, First Department.  That’s the court with the really cool building across from Madison Square in Manhattan.

We’ve heard plenty from Judge Lippman over the years in his position as chief spokesman for the court system.  But I can’t remember anything he’s done as a judge.  Since he has been administrative judge since 1996, he has no trail of decisions or trial history that provides a clue as to his judicial views.  So why?

I brief digression.  Way back when, the First Department was the gem of the appellate court system in New York.  Under the hand of long-time Presiding Justice Francis Murphy (affectionately known as PJ Murphy), it was a stable group of very highly regarded justices who were known for being a thinking lawyer’s bench.  They were hot when it came to argument, and regarded as your best chance of a fair hearing.  while not pushovers by any means, at least a lawyer with a good argument knew that she would be heard, and the rest was up to her.

Since PJ Murphy was unceremoniously axed in a political coup, certain appointments to the First Department have been viewed as carpet baggers, making it just another political spoil.  This ignores the fact that there are still a number of great judges sitting there, with experience on the trial bench at Centre Street, but the inclusion of outsiders has given the taint of dilution.

So why, given the local judicial talent and experience already available, did the Governor pick Judge Lippman?  Well, Judge Lippman was a local Manhattan guy, as made clear in the stories about his appointment.  I gather that was to address the carpet bagger issue.  But when was the last time he tried a case?  When was the last time he decided an appeal?  God knows the court system needs a good administrator, but that’s an entirely different skill set than being a good appellate judge. 

I can’t (won’t?) criticize Judge Lippman, because I haven’t got a clue what type of PJ he will make.  I hope he will be brilliant and fair (maybe like a pre-obsessive Judge Wachtler).  But given the availability of judges like Rick Andrias, Angela Mazzarelli and Peter Tom, you have to wonder.

Nicole Black, at her hilarious new blog, Legal Antics gives us another clip of Monty Python that should bring a smile to the face of even the most jaded lawyer.  It is my intention to alert all readers whenever possible, as no one should miss an opportunity to appreciate Monty Python.  Frankly, I think we should all get CLE credit for watching.

If I had half her computer skills, I would post them myself.  But since I don’t, you’re just gonna have to visit Legal Antics every day to see what Nicole’s come up with.

Last Friday, I taught at a “Cross to Kill” CLE for the New York State Association of Criminal Defense Lawyers on the subject of cross-examining the eyewitness.  Part of my lecture concerned cross-racial identifications, widely regarded as the least reliable of all. 

The question was asked about whether defense counsel should question the eyewitness about where they lived and worked, in order to show that the witness lacked a frame of reference for making a cross-racial ID.  Put in context, the attorney suggested that showing the jury that a white witness lived in a “white” neighborhood and worked in a “white” job would demonstrate that they could not identify a black perp.  The attorney who raised the question was black, which I do not note gratuitously but because it is directly relevant to the point.

My position was that it was more likely to harm the position than help to suggest that because a person did not live in a racially mixed neighborhood, the witness was inherently incapable of identifying the perp.  Rather, I suggested that the only effective means of making the point was through an eyewitness expert, who could do so clinically.  My questioner disagreed.

“But what if you didn’t have an expert,” she urged.  “Then you would have to do this.”  I still demurred.  The defense attorney would never know enough about the eyewitness to presume to challenge her ability to recognize a person of another race.  It was highly unlikely that we will get a witness to admit that she can’t tell one black person from another, and anything short of that smacks of an appeal to prejudice.  It was playing the “race card,” a very risky proposition that was more likely to backfire than help.  And particularly more likely to backfire when the attorney was of the race in issue.  My questioner disagreed.

I didn’t get it, according to my questioner.  White people who live in (location omitted to avoid needlessly offending the locals) can’t tell one black from another.  So if you show that the eyewitness lives in (same place), then you can show the jury that they could never had made a valid ID.  This is where things got a little hairy at the CLE, as some people in this biz can be a bit sensitive about having a frank discussion.  So we agreed to disagree and moved on.

But the question raised important issues, and it bugs me that they remain undiscussed.  What I came to realize during the discussion was that the questioner’s perspective assumed that everyone realized that whites are inherently prejudice against blacks to the extent that they are obviously incapable of making a valid cross-racial ID.  She may be right.  But this is a black attorney’s perception of white witnesses.  I do not agree that white jurors perceive themselves this way.  And while this might strike a meaningful blow for reality, our job is not to right the wrongs of racial prejudice, but to represent our clients. 

So assuming that we have a jury with people of various races, we need to get beyond our own desires to press issues that satisfy our own view of the world and deal with the issues in a way that will cause the jury to “see” things the way our clients desire.  In other words, no matter how “correct” my questioner may have been about racial bias, she forgot to plug the jury into her equation to consider how her personal views would mesh with the jurors’ self-perceptions.  It may have made her feel satisfied by questioning the eyewitness on the extent of her interactions with people of other races, but it would not have played well with jurors of other races and may well cost her client.  In the end, there is one immutable fact about what defense lawyers do:  We represent the defendant.  No matter what our personal beliefs may be, we can never lose sight of our duty.

The Grey Lady kindly informs us (subscription) of a website of some passing interest to criminal defense lawyers, www.whosarat.com.  The feds are concerned.  My guess is that a lot of people have reason to be concerned.

On the front page, whosarat shows everyone the three top rats of the day.  But if you want more, you have to be a subscriber.  For $90, you can be a lifetime member, though it’s not entirely clear whose life they are talking about. And they through in a “Stop Snitching” t-shirt.  Of course, if you happen to be a target of a current federal investigation, the subscription fee seems positively reasonable, particularly when compared with the cost of not knowing what your BFF is doing when he’s not hanging around with you.

And so, an issue arises.  Should snitches be outed on the internet?

But there’s a second issue as well.  How do we know that the people who have been identified as rats are, in fact, rats.  Consider the ramifications of abuse.  Wouldn’t this make a great weapon to use against your enemies?  Want to get rid of someone?  Just post that he’s a rat.  Boom.  It’s not like you can turn to the feds for confirmation.

And what about all those criminal defense lawyers who had their clients flip “because it’s the only way,”  assuring them that no one would ever know they became a snitch.  Oops.  Sorry, pal, but who knew that you would make the front page of www.whosarat.com.  And the feds are not happy about this.  Ya think?