Monthly Archives: June 2009

From Edwards’ Death, The Hope of Change

The death of P.O. Omar Edwards was a tragedy. No, not more of a tragedy than the unnecessary death of so many others at the hands of police officers who shot first and asked questions later, but a tragedy nonetheless. The difference this time is that police feel something in the aftermath of one of their own being killed, where the death of others is an excuse to check the rap sheet first and explain why he deserved it anyway. They can’t play that game here.

But it looks like the New York Police Department might actually be open to doing something meaningful as a result of this tragedy, something all the marches and protests have been useless in accomplishing. From the New York Times :

Police officials were already moving on Sunday to change police training and to seek fresh ideas for preventing a repetition of the interracial killings of one officer by another that have claimed the lives of several black officers dating to 1940.

Paul J. Browne, the chief spokesman for the Police Department, said the department was immediately scrapping scheduled police training on courtroom testimony and replacing it with “confrontation training” — encounters like the one between Officer Dunton, who was with two other white officers in an unmarked patrol car, and Officer Edwards, who was in civilian clothes, and had drawn his gun while pursuing a man he had found breaking into his car on an East Harlem street.

Imagine, police brass “scrapping” training on how to make sure cops know how to testify to convict whoever they arrest in favor of training how not to kill someone needlessly. Mark this date on your calendar.

According to the article, it appears that the police department, for the first time ever, is seriously re-evaluating its policies and seeking to find a real answer to how to prevent this from happening again.

“This is the first time I am hearing the department saying, ‘We need help,’ ” [State Senator and former police officer, Eric Adams] said, adding, “I believe the commissioner sees how large this problem is.”

The focus is on how to prevent an off-duty cop, and particularly a black off-duty cop (noting that this doesn’t seem to be nearly as much of a problem with white off-duty cops) from being shot and killed. No one, at least for now, is considering the problem of killing innocent blacks (or whites, for that matter) who don’t happen to also be cops. That, apparently, still falls under the collateral damage theory in the war on crime. Unfortunate but unavoidable.

One might view this from the cynical perspective, but it strikes me as a start. If they can’t even figure out how not to kill their own, there isn’t a chance in the world that they can figure out how to not kill others. Changing the police mindset has to start down the path from somewhere. At least this may present a start.

No one has yet to come up with a solution. I certainly don’t have one. But the fact that the people who have the power to change things are, for the first time, recognizing that a problem exists and seriously seeking a better way is promising. Maybe, just maybe, once they figure out how not to kill black cops, they can figure out how not to kill other people. Maybe.

A Wartime Consigliere

Of all the movies ever made, none offers as many rules to live by as Mario Puzo’s 1972 epic, The Godfather. None even comes close. If you don’t understand why this is so, then you should stop reading immediately and go to another blawg, like Feminist Law Professors or perhaps some blog dedicated to work-life balance.

Dan Hull at What About Clients? gets it. In his ode to Rees Morrison at Law Department Management Blog, Dan makes the point that every lawyer, even a General Counsel, needs to be both philosopher and warrior. When you’re in a fight, running scared is not an option.

It’s just a business fact, especially in changing industries. And especially now. General Counsel at corporations do make a difference. She should be broad-gauged, intellectual, take-charge, organized, preventive, resourceful–and war-like at heart. Hates war as expensive–but likes and even revels in a fight. Tells management what to do–and not a tentative, qualified “what you can do”.

At his well-regarded Law Department Management, Rees Morrison, by far one of the smarter, sager and more experienced lawyer-consultants out there, just asked “Does a General Counsel Make All That Much Difference?” Our two cents is in the WAC? post title above. The right GC? Get thee a philosopher-warrior. Be safe and feel safe, friends.

The superficial reaction of the Tom Hagen’s is that everything doesn’t have to be a battle; sometimes appeasement is the better route. This is true, but misses the lesson of the Godfather. A warrior knows how to make peace. A scared bunny will never know how to win a war. Worse still, a scared bunny will do everything in his power to avoid a war, even when it’s fundamentally contrary to reason and interest. The scared bunny will do this because he can do nothing else.

This is a particular problem in the defense of white collar criminal prosecutions, where the very hint of government interest makes civil lawyers start to shake. The in-house guys, particularly adept at proof-reading contracts and offering vague opinions on legal matters to non-lawyers when there is no one in the room to disagree with them, collapse into a bowl of jello when the threat of investigation or prosecution looms. They are over their head, and they know it. They want the scrutiny to go away, to return to the warmth and comfort of their world without threat. Their heads spin, trying to figure out a way to make the powerful leave them alone, to please the prosecutors and agents who are about to bring their legal world down around them.

This is why they need a wartime consigliere. The best strategy isn’t born of fear. The best outcome isn’t derived from running scared and hiding from the potential of battle. Clear thinking and a firm hand in the face of threat is critical at this very instant, and most lawyers aren’t prepared to handle the pressure. They collapse just when they are needed most.

Aversion to the unpleasantness of confrontation is a perfectly understandable reaction. It’s far more comfortable to make peace than war, for the warrior as well as the philosopher. But when the strategy is dictated by the lawyer’s inability to fight the war, to face up to the hard task of recognizing that a lasting peace can only come from the ability to wage a successful war, then the war is lost before it has begun.

Much of the time, two reactions arise from the threat of corporate or white collar investigation or prosecution: Denial and appeasement. Whether it’s “we did nothing wrong,” or its corollary, “everyone does it,” the executive approach is to maintain one’s dignity by refusing to acknowledge that they are facing a potentially catastrophic problem. This is frequently where the war is lost, when choices are made that later spell disaster for the defense against the attack.

The second reaction, appeasement, is the equivalent of surrender. Whether driven by the weak strategy of “no one can win” so we must surrender, or the “we’re the good guys” so we must cooperate, it’s really the path of least resistance, the one favored by the Tom Hagens. It may be the right course to take in some instances, but when it’s dictated by legal advice driven by fear and paralysis, then it’s just like going into battle unarmed. You were doomed to lose before you began.

Every lawyer is not a wartime consigliere. Most aren’t cut out for the heat of battle, the ability to stare down an enemy more powerful than you and be fully able to engage him if needed. But without a wartime consigliere, you are guaranteed to lose the war. Only from a position of strength, based on clear thought, fearlessness and the capacity to fight if needed, can one obtain the best results from white collar or corporate prosecutions.

If the threat of war is looming, make sure you are the wartime consigliere. If you’re Tom Hagen, at least recognize it and align yourself with someone who can fight for you. Think of The Godfather.

Age Versus Crime

Via Skelly at Arbitrary and Capricious, a 14 year old boy named Trevor Reizenstein will be tried as an adult for the sexual assault and beating of a 5 year old girl in 2007. A horrible crime for sure, but even if we assume Reizenstein to be guilty, he was 12 years old at the time it happened.

Reizenstein’s case was in limbo since November 2008, when Canyon County sheriff’s deputies transfered the boy from the juvenile facility to the adult jail after receiving a signed court order to do so.

His attorney moved to have him tried as a juvenile, which kept the case on hold until the Idaho Supreme Court ultimately held 4-1 that he should be tried as an adult. Thus far, a now-14 year old boy has spent two years detained awaiting trial. The Idaho Press article contains this inexplicable paragraph:

According to Idaho law, if a juvenile age 14 or older commits a serious crime, his or her juvenile status is automatically waived. However, Reizenstein was 12 years old at the time the girl was attacked.

This provocative assertion required further investigation, as the article provided no further explanation. But an article from USA Today following the Idaho Supreme Court’s decision raised more questions than answers:

The high court ruled 4-1 that Trevor Reizenstein should be tried as adult for attempted murder, battery and forcible penetration with a foreign object.

A psychologist and a juvenile probation department committee both said the boy would be best served in the juvenile court system, based on his immaturity and lack of competency to stand trial as an adult.

But in its 20-page ruling, the high court found the youth would likely need treatment long after he would be released if convicted under the juvenile court system, and that he was sophisticated and street-smart for his age.

To the extent this explanation of the decision makes sense, the court ignored the court appointed psychologist and probation in favor of its own projection of the boy’s future treatment needs?

In his appeal, Sullivan pointed out the findings of Dr. Craig Beaver, a psychologist appointed by the lower court to evaluate Reizenstein. Beaver found the boy had an IQ of 75, five points above the threshold for mild mental retardation, and that he had behavior disorders. Beaver also found that the boy was significantly immature, had a significant drug and alcohol history for a child his age and showed signs of depression, according to the court ruling.

Beaver ultimately recommended that Reizenstein’s case be handled in juvenile court, and a committee of 10 juvenile correction officials made the same recommendation after determining that the state’s juvenile detention system had services available to help Reizenstein and that it could meet his needs while protecting the community.

Certainly, the objective evidence appears overwhelmingly in favor of Reizenstein being treated as the child he is. But none of this explains what became of Idaho law that only at age 14 may the court determine that his alleged conduct warrants adult treatment. The articles discussion of the Supreme Court’s decision stated:

The Supreme Court — which referred to Reizenstein as “John Doe” throughout its ruling — said that even though the boy was young, had below-average intelligence and was behind other students his age at school, he was still a street-wise minor who had a sophistication exceeding his chronological age.

What was the basis for this conclusion. This anecdote:

“After working on competency at NCH for over four months, Doe became angry during a group session and announced that he could have passed the competency test at any time, but felt he was being railroaded. He then took the test and passed with a 96 percent,” Justice Jim Jones wrote for the majority. “According to the court, this sequence of events indicated a disturbing ‘level of deceit and sophistication.”‘

Reizenstein’s penchant for engaging in adult behaviors — such as using drugs and alcohol and fending for himself at home — also were evidence of an increased maturity level, the court said.

Of course, Reizenstein’s penchant might have had something to do with the fact that he and his siblings were horribly neglected by their parents.

Beaver also said Reizenstein had little family support, with parents who condoned his use of alcohol, tobacco and marijuana and a mother — who was on probation for possession of methamphetamine — who frequently left him and his sisters home alone, without food, for days.

In fact, the Idaho Supreme Court noted in its ruling, several child protection cases alleging neglect and abuse had been filed against Reizenstein’s parents since his birth.

The determination that a 12 year old, borderline retarded boy, neglected by his parents and left to abuse drugs and alcohol, should be treated as an adult is, standing alone, a travesty. It is not to diminish the seriousness of the harm done to a 5 year old girl, but no matter how horrible the crime, it doesn’t alter the fact that Trevor Reizenstein is a child as well. Except perhaps in Idaho?

What is more shocking is the lame rationalization provided by the Supreme Court in support of its throwing Reizenstein to the wolves of the adult legal system. Despite every safeguard supposedly in place to protect children from the law, the Court chose to ignore the findings of the psychologist and probation officials and rely instead on one of the weakest, most absurdly cobbled together bases, imaginable.

The message here is clear. The crime was horrific and this “bad” kid was going to be sacrificed to pay for it. So what if every legitimate factor militates against it, he’s going to pay.

For those of us who reject the notion that children should be treated as adults to satisfy the blood lust of public opinion, Trevor Reizenstein should not be tried as an adult under any circumstances. But for the Idaho Supreme Court to so facially flaunt its bias, and to conclude, in the face of all objective evidence to the contrary, that this boy be treated like a man reduces the law to a sham.

It was a horrible crime. What happened to this 5 year old girl is awful, and should never happen. But that doesn’t turn a 12 year old boy into an adult. Nor does the terrible nature of the crime make him guilty. Now he’s just another child lost to the system.