Civil rights lawyer Michael Tarif Warren was driving down Vanderbilt Avenue with his wife, Evelyn.  They saw a bevy of cops stop and cuff a young black man.  Once the cops had him under control, they did what cops sometimes do.  The tune up.

We don’t know why the cops felt the need to give the kid the tune up.  Maybe he had hit one of them before running.  Maybe it was because he had the audacity to run.  Maybe it was because he made them run after him, leaving their donuts and coffee behind.  Who knows.  But they felt the need to show the kid who’s boss. Over and over.

Michael Warren was not an ordinary New Yorker, the type who let Kitty Genovese die and about whom Phil Ochs sang.  Michael Warrant was a human being, and did what a human being was compelled to do.  He got out of his car, told the police he was a lawyer, and that they should just arrest him and bring him in.  He told them to stop kicking and beating the kid.  And he paid the price for his humanity.

The news account tells the complete story.  But for those of you who refuse to believe that bad things can happen (and who are not likely to be New Yorkers), understand this.  Michael and Evelyn Warren took their lives into their hands when they went to help a young man they didn’t know.  I’m sure they realized the risk they were taking, but took it anyway.  Maybe their intervention made the difference between a young man alive today and a sidebar story in tomorrow’s New York Post.  I’m sure the police would tell the story about how the vicious perp’s face attacked the cops feet while he lay handcuffed on the ground.  “Six cops were injured and went to the hospital with sprained toes, out for 18 months on disability,” goes the typical press release.  “The evil interloper was believe to be drunk, high on drugs and dressed in peculiar clothing…” It’s much easier to smear the victim than stop the brutality.

I don’t know Michael Tarif Warren.  He apparently is quite political, which comes as no surprise.  I don’t know his politics, and I have no idea whether I agree with his politics.  But if I was the kid lying on the ground being beaten, I doubt that I would ask him about his politics before I would accept his aid. 

Lawyers have bar associations.  Bar associations give out “Best Lawyer” awards.  Usually, we pick attorneys to receive awards because they can bring in a few extra tables of paying guests.  I don’t know if Michael Warren can bring in any paying guests, but I nominate him for an award.  Not as a lawyer, but as a human being.  Maybe some bar association can find some room to honor someone who actually did something worthy of the honor.  Not about his politics, but because he risked his own safety for someone else.  It’s something worthy of admiration.

Lowering the Bar has a story about a fellow at the San Francisco DA’s office who got a job after claiming to have passed the bar exam.  He then lost the job when his ersatz new employer checked the bar results.  Most of us would take this for granted, that an employer like the District Attorney would verify passing the bar, but that’s not necessarily the case.

The story reminded me of the tale of Dan Penofsky.  Dan had 16 years in as an ADA at the Brooklyn DA’s office and the Special Narcotics Prosecutor’s office.  Special narcotics was a citywide superjurisdictional prosecutor in New York City that handled drug cases across county lines.  It’s head was Sterling Johnson, later to be a federal judge in Brooklyn and member of the US Sentencing Commission. 

Dan was a hard-nosed ADA.  Neither unpleasant nor unreasonable, he was no pushover.  He looked like an ADA.  He dressed like an ADA.  He was a go-to type of ADA who faced down some very tough drug dealers in the days when drug dealers meant what they said.  Not the girlie type of rat drug dealers we have today, but the Tony Montana type.

The only problem was that Dan Penofsky wasn’t a lawyer.  He was never a lawyer.  Sixteen years in the DA’s office, from 1973 to 1989, and nobody knew that he wasn’t a lawyer.

But he was one hell of an ADA.  He put a lot of people in jail.  A LOT.  He tried cases, and he tried them damn well. 

When the word came out about Dan, it was one of those rolling on the floor laughing moments.  Not at Dan, so much, but at the absurdity of it all.  For all the platitudes we spout about education and professionalism, about law and society, there was good old Dan putting bad guys behind bars year after year after year.  And he wasn’t a lawyer.

Epilogue:  Some defendant sought to challenge their convictions, arguing that they could not lawfully be convicted by an ADA who was unqualified (in the technical sense) to prosecute their case.  The theory is that the exercise of prosecutorial discretion by a person not qualified to prosecute, and his unauthorized presentation to the grand jury, denied them due process. The Court of Appeals disagreed.  It’s not like they were going to let every miscreant that Penofsky put away out of jail, no matter how embarrassing the decision might be.

In dissent, Judge Titone wrote the following:

It has been observed that a Grand Jury can indict anyone or anything — even a ham sandwich. [n 1] Now, under the majority’s holding, apparently anyone can present the People’s case to the Grand Jury — even an unadmitted layperson masquerading as an attorney. Because this position makes a mockery of both the rules prohibiting legal practice by laypersons and the Grand Jury system itself, I dissent.

Now if this doesn’t make you proud to be a lawyer, I don’t know what does.

It’s a Sunday morning, so naturally my thoughts turn to trial strategy.  Some recent questions I’ve read from criminal defense lawyers have caused me to think about flawed or misguided strategies that consume time and thought (neither of which the questioners had in abundance) that detract from winning the case. In response to those convoluted, complicated, prolix approaches, I offer this advice.

KISS.  Keep it simple, stupid.  This is a principle of monumental importance in criminal defense, and one that lawyers, particularly young lawyers, ignore with regularity to the great detriment of their clients.

The more explaining a defendant is forced to do to allow the jury to reach a verdict of not guilty, the more unlikely the jury will get there. 

The basic problem is that defendant’s want to challenge everything.  Every word of a cops’ (or victims’) testimony comes under intense scrutiny by the defendant, who often has a lot of time on his hands to obsess over the allegations against him.  He will parse every word, looking for a crack that he can somehow explain away or question. 

To the defendant, the more holes he can poke in the prosecution, the more satisfaction he feels and the more likely it will be, in his mind, that he can get the other side to break down in a fit of anguish and admit that he is an innocent man.  Whether he’s innocent or not, of course, since defendant’s have a tendency to forget that they were found standing there, bloody, holding the murder weapon.  “Oh yeah,” the defendant says sheepishly, “I forgot.”

But it is the job of the lawyer to determine the strategy, not the defendant.  While some lawyers will defer to the client, whether to take the onus off of them or to please the client (for the moment), the lawyer will push whatever buttons the client wants.  The problem is that the client is ill-prepared to devise strategy.  That’s why other defendants don’t go to the client for representation, they go to a lawyer.

Judges and juries are not likely to accept the premise that the cops have singled out this one particular defendant, of all the people in the world, who the cop never met until the day of arrest, to fabricate from whole cloth a crime and charge him with it.  They don’t buy that everyone is lying about everything.  It may be true, but it is the hardest sell there is in criminal defense. 

Strategically, there is almost always a lynch pin that ties the prosecution’s case together.  It may be ID, or a single act showing intent, but it is the tipping point between conduct that constitutes a crime and conduct that doesn’t.  In any particular case, there may be a number of lynch pins of varying strength and support.

The first thing the lawyer must do is identify the lynch pin that is vulnerable to attack.  Concentrate on that lynch pin.  Your trial theory is directed at that lynch pin.  You voir dire and open on that lynch pin.  You tell the judge and jury, that’s why your client is not guilty.  And as your client writhes in pain because you didn’t attack the other 43 points that he thinks are absolutely critical, you maintain focus on the issue with the best chance of winning.

Think of this as the surgical, rather than shotgun, approach.  If you can successfully excise just one specific necessary allegation from the prosecution’s case, it fails.  If you poke a bunch of unrelated holes in the prosecution, you may weaken some of their points but the prosecution maintains its inherent vitality and the jury convicts.  Never forget that trials are not like a baseball game; they are not scored in innings (witnesses), but a “winner takes all” at the end when the verdict is returned.

By conceding issues that are theoretically subject to challenge, but highly unlikely to be winnable or insufficient to turn the jury to acquit, you focus all of your capital on the lynch pin and ask the jury to do only one thing for you, put all of their attention on the lynch pin where you plan to levy your attack.  By asking less of the jury, you will greatly increase the likelihood that they will do it for you and, ultimately, give you this one concession. 

Bear in mind that you walk into the courtroom as the defendant, and hence with the jury inherently biased against you.  They are not inclined to do you many favors.  So the fewer favors you ask of them, the less you demand, the more likely it is that they will give your argument one good hard look.  If you’ve done your job and focused your strategy on the lynch pin, that one good hard look is all that you will need.

The response has been overwhelming.  Defense lawyers everywhere are sitting on the edge of their seat.  Brother pitted against brother.  Sister against sister.  Who will win?  Do Texans really dress funny? 

Before revealing the outcome, please bear in mind that this has all been tongue in cheek and should not be taken seriously by anyone.  Some defense lawyers take themselves way too seriously, and have some inexplicable difficulty with a little tongue in cheek pretend competition.  So enjoy the results, and if you can’t, have beer and some Texas barbeque this weekend and chill out.  I want to add that I would be honored to sit at the defense table with Mark Bennett, any time and anywhere.  (Of course, I’d be the lawyer…)

And now, the results:

Selection   Votes New York  38% 32 Texas  25% 21 Anywhere but Texas  12% 10 Could I practice in Texas but live in NY?  1% 1 Would I have to dress funny if I practiced in Texas?  24% 20 84 votes total

Last night, the New York Legislature created, with the endorsement of Gov. Eliot Spitzer, a new crime, Aggravated Vehicular Homicide.  The law will be known as “Katie’s Law,” named after the horrible tragedy that took the life of a young girl in a limo returning from a wedding where she was the flower girl.  The word horrible does not begin to capture the depth of this tragedy.

And so we have a new crime to allow for a sentence of 25 years to life, the same as intentional murder, for drunk driving that results in death. The aggravating factors include a suspended license, BAC over .18, more than one person killed or injured, a prior DWI.  And what is the compelling need for this new law?

“For Heidgen, there was a law in place to allow the family to get a semblance of justice. But for 99 percent of people whose loved ones are lost at the hands of drunk driver, there is no justice,” said Nassau District Attorney Kathleen Rice. “This is step one in making New York one of the most effective states in prosecuting this epidemic.”

Sen. Charles Fuschillo (R-Merrick) said the bill will “give prosecutors the tools they need” to go after deadly drunken drivers. Under current state law, prosecutors are usually only able to charge second-degree manslaughter in fatal drunken driving accidents. That carries a maximum of 5 to 15 years.

Will an increase in the maximum penalty reduce drunk driving?  Will it give families “justice”?  Will it give prosecutors “the tools they need?”  Or will it give politicians and prosecutors a chance to put on a show to prove their “tough on crime” bona fides? 

It’s hard to cobble together a credible argument that somebody drives drunk because, “hey, it only carries a max of 15 years.  If it was 25, I wouldn’t do it.”  More importantly, drunk driving is a very dangerous thing and it should be taken seriously.  But it is not the outcome that makes it bad, it is the potential outcome that makes the act egregiously wrong. 

Is the drunk driver blowing .25, but lucky enough not to kill someone or get caught, less morally culpable than the same drunk driver who causes death?   There but for the grace of god…  One goes home and sleeps it off, only to go to work, or school, or wherever, as if nothing happened.  The other spends the rest of his life in prison.  They both engaged in the exact same conduct, but the consequences are a world apart.  The only difference between the two is pure kismet, as the drunk who made it home has put every man, woman and child on the road at risk of their lives.  He is every bit as wrong.  And the drunk who didn’t make it home?  Well, he lost to the combination of his crime and the odds.

And while the tragedy that befell Katie scares the daylights out of me, I hate that names are married to laws to invoke a visceral response intended to overcome reason.  How can anyone be against a law for Katie?  But we know that using Katie’s name is the hook, nothing more, to garner political capital from a human being’s tragedy.  Poor little Katie is gone to all, except politicians who care more about her now than before.

While the debate about Avvo ratings continues, a very good question was posed at Mark Bennett’s (with 2 “t”s) blog, Defending People.

Interestingly, you also suggest that whether a defendant is found guilty or not guilty depends pretty much wholly on who the defender is. Doesn’t the available evidence in the case have anything to do with the outcome? Doesn’t this part speak for the whole at all?

Mark’s answer was spot on:

You can’t change your facts or your luck; the only factor under your control is who you hire.

This raises the issue of lawyer fungibility.  For those of you who prefer to speak English, whether one lawyer is the same as another, and therefore interchangeable.  While lawyers recognize vast differences in skill level and experience, clients lack the tools to either appreciate these differences or assess them.  How would a client know a good lawyer from a bad one?  How would a client even begin to find out.

The knee-jerk answer is through referral.  Defendant asks someone, a friend, relative or the woman on the street corner (as is more often the case than we would like to admit) for the name of a “good” lawyer.  But as experience shows, clients’ perception of “good” lawyers is generally outcome driven.  If a lawyer beat a case, or got a defendant a good deal, he is “good” lawyer.  Conversely, if the lawyer lost the trial, he is not a “good ” lawyer.  Again, as lawyers we immediately recognize the fallacy of the outcome drive endorsement.

Next is the personal appointment.  Potential client meets with lawyer.  While common sense tells us this is the best method, experience tells us that it too has its flaws.  Clients look down two paths to determine whether the lawyer is “right” for them.  Path 1 is the “nice” lawyer.  They meet and client likes the lawyer.  While likability is certainly a good trait, it bears no connection to the lawyer’s skillset.  Think about the second defense lawyer in the movie My Cousin Vinny, and the flaw of this approach becomes painfully clear.

Path 2 is the lawyer who tells the client what he/she wants to hear.  This is a dangerous lawyer, but one who is very appealing to the potential client.  Whether it is the ethically challenged tact of guaranteeing an outcome, or the merely deceptive tact of making the amorphous suggestion that everything will be okay, it is a play on the client’s vulnerability at a time when honesty and truthfulness can be quite scary.  Nobody wants to scare the client away, but in the same vein, flat out lying to clients should be frowned upon (if you get my drift).

My thoughts have always been that the best source of determining the right lawyer is lawyer to lawyer referral.  We tend to be capable of assessing each other much better than non-lawyers, right?  But this too is an imperfect plan.  First, if the lawyers are in the same practice area, why would one refer to another (unless it was an extra defendant or conflict situation)?  On the other hand, if the potential client goes to his real estate lawyer for a referral, the real estate lawyer is unlikely to have a firm idea about the quality of the criminal defense bar and will default to a referral to a criminal defense attorney he knows.  And, of course, the one he is certain will kick back the referral fee.  With shocking frequency, the attorney to whom the case is referred is not really a criminal defense lawyer, but rather a former ADA who pretends that criminal defense is in his repertoire.

And finally, there is the price shopper, which comes full circle to the lawyer fungibility problem.  Client’s first question is “how much?”  The assumption is an ad hoc cost/benefit analysis, except that it doesn’t include the benefit in the calculus.  Since there are lawyers, unfortunately many lawyers, who will take felony cases for the cost of a traffic ticket, competent lawyers are invariably priced out of this market and the generally fee structure for the proper representation of a criminal case is impacted down the line.  But the argument from the attorneys, usually young and desperate, for taking cases at such ridiculously low fees is that they either grab the money or starve.  It’s a compelling argument, as long as you don’t think too hard about the interests of the client, since these lawyers can’t afford to try cases or do research when they are doing felonies at $1000 a pop.

So we return to the Avvo rationale.  Clients, the consumers of legal services, need a better way.  That’s for sure, but unfortunately it begs the question.  Is Avvo a better way?  Stay tuned.

The most depressing blawg online, Second Circuit Update, brings you the latest chunk of cheer from the Circuit.  United States v. Salazar, No. 06-0198-cr (2d Cir. June 13, 2007) (per curiam) (Sack, B.D. Parker, Hall, C.JJ.).  You can get the full story from them, but my shortened version goes like this:  We don’t need no stinkin’ Booker.  Is the defendant ready for sentence?

So you think you can dance?  While not a new dance craze, the Miranda Two-Step should be on everyone’s radar and is worthy of discussion.  Thanks to Second Circuit Blog for bringing it up.

Here’s the deal.  Cops engage in a deliberately unconstitutional interrogation of a defendant.  No Miranda warnings, coercive, whatever.  They induce the defendant to give a statement.   A little later, they give Miranda warnings and then get the defendant to repeat the statement by using the fact that it’s nothing new, he’s already told them and it’s too late to take it back.  Boom.  Good confession.

Sound familiar?  Missouri v. Seibert, 542 U.S. 600 (2004).  Justice Souter’s opinion for the Court explains that this doesn’t happen by chance.  It’s another instance of an intentional law enforcement strategy calculated to circumvent a constitutional right. 

The technique of interrogating in successive, unwarned and warned phases raises a new challenge to Miranda. Although we have no statistics on the frequency of this practice, it is not confined to Rolla, Missouri. An officer of that police department testified that the strategy of withholding Miranda warnings until after interrogating and drawing out a confession was promoted not only by his own department, but by a national police training organization and other departments in which he had worked. Consistently with the officer’s testimony, the Police Law Institute, for example, instructs that “officers may conduct a two-stage interrogation… . At any point during the pre-Miranda interrogation, usually after arrestees have confessed, officers may then read the Miranda warnings and ask for a waiver. If the arrestees waive their Miranda rights, officers will be able to repeat any subsequent incriminating statements later in court.”

While Seibert recognizes not only the problem, but the Machiavellian scheme by law enforcement, many courts refuse to admit or acknowledge that this is for real.  Cops, ever vigilant, have figured out that they shouldn’t openly admit that this is what they are intentionally doing, and hence lie thought their teeth (but with the best of intentions) about it. 

Also, variations on a theme have developed, such as the manipulative interrogation followed by the tape-recorded confirmatory statement.  While Seibert and its progeny tend to be highly fact specific, with some courts doing cartwheels to explain why the obvious application of this technique does not fall within the rule, the rationale offers some decent argument to be made to the jury as to why they should not buy the step 2 interrogation as reflecting a true admission, after the police manipulated the step 1, especially where the stop 2 is recorded and the step 1 is left to the officer’s fertile imagination.

Since it has become apparent that so many of our readers are too shy to express their views on whether they would prefer to practice in New York or Texas, I’ve decided to make it a bit easier.

Below is a scientifically devised poll to ascertain your true feelings. No one will know who you are, so feel free to express yourself without reservation. And don’t feel bad for Texas lawyers; Most of them are busy sleeping through trial anyway.

Not about the clients this time, but the lawyers.  Most attorneys feel an unnatural compulsion to have sound emit from their mouths.  It’s just what they do.  Sometimes, it’s what they should do, but not always.

Clients love to watch as their lawyers stand up and seize control of the courtroom.  With a calm stateliness, the lawyer speaks and the din of the room suddenly quiets to the point where you can hear a pin drop.  All eyes turn to the lawyer and no one, not even the judge, would dare to interrupt.  The lawyer’s oratory captivates the room.  The jury wakes up and every eye is on the lawyer.  The client feels very, very good.  And the lawyer feels that he has fulfilled his promise. 

But this dreamy scenario, while satisfying, may prove to be the absolutely wrong tact to take.  There are times when the lawyer best serves his client by remaining silent.  This is a hard lesson for some lawyers.  In my experience, it tends to come with maturity, though many older, more experienced lawyers fail to recognize those moments when the best thing they can do is…nothing.

For example, good times to remain are silent are:

1.  When the judge is ripping your adversaries head off for some error, whether real or perceived
2.  When your adversary has apparently forgotten to do/say something, and is about to walk off a cliff
3.  When your adversary has made an argument that is so patently frivolous that it is destined to undermine his position
4.  When the judge is about to address a situation in your favor, even though she’s absolutely wrong
5.  When a prosecution witness has just lied through his teeth about some significant fact, but the lie works in your favor

Every trial lawyer is familiar with the last example.  It’s the one where your client grips your arm with such force that you wonder if circulation will ever return, and whispers in your ear. “He’s LYING!”  And you calmly turn toward your client and respond, “Yes, but he’s lying FOR you.”  It’s uncanny how some clients have a sudden hankering for the truth.

Similarly, there are times when the use of silence is your best friend prior to coming anywhere near trial.  For example, I represented a young woman who should have been charged with a felony assault, but the arresting officer took pity on her and wrote the initial charge as a misdemeanor assault so he could give her a desk appearance ticket and avoid putting her through system.  The young woman was having a psychotic episode at the time, and would have had a great deal of difficulty in a holding cell.  The officer was very kind.

When we appeared for arraignment on the appearance ticket, the prosecution had neglected to file an accusatory instrument, and so our appearance was noted and we went home.  The parents of the young woman were distraught, and wanted (perhaps better described as demanded) forward motion so that this matter would reach closure.  The apple never falls far from the tree, if you get my drift.

After calming down the parents, I told them that they would have to leave strategy to me and bear with the situation.  After a period of quiet time, I received a call from the assistant who told me that she was going to present the case to the Grand Jury.  I asked her to give it some time to see if we could work out a disposition, as the young woman was receiving treatment and there was no need to saddle her with a felony.  We spoke nicely to each other, and the assistant agreed. 

I promised to call her in two weeks with an update, and I did.  She wasn’t around, so I left a message.  No call back.  This was the critical moment.  Do I pursue the assistant, or leave it alone.  I knew she had a case, but the only benefit to another call would be to remind her of that fact.  I also knew that, in the meantime, other cases would come across her desk.  Other defendants.  Other cops.  Other parents.  Other lawyers.  So I opted to lay low.  If she ever called me, I was in the clear as I had called her as promised.

And so I went silent.  Six months later, not a word.  And so the case died, a slow, lingering, quiet death, and was never heard about again.  The defendant had neither case nor record.  It never happened.  The parents were dissatisfied by the absence of closure.  They wanted a piece of paper that said their baby was innocent, and were unhappy that there is no disposition when there is no case.  But there was no such animal to give.  At the end, there was a black hole of nothingness, but that nothingness included no charge and no conviction, a very successful outcome.  Silence can be golden.