Monthly Archives: August 2009

Poor Richard

The WSJ Law Blog posts that Judge Richard Sullivan ignored the expectations of both government and defense at the plea of Madoff co-conspirator Frank DiPascali.

Specifically, the 45-year-old Sullivan (William & Mary, Yale Law), who became a judge two years ago after spending more than 10 years as a prosecutor at the U.S. attorney’s office in Manhattan, denied bail to Frank DiPascali, a possible key witness in future Bernard Madoff-related prosecutions. That occurred after DiPascali pleaded guilty to helping carry out Madoff’s fraud scheme, including lying to investors, creating lots of fake documents, and repeatedly lying under oath to SEC investigators. He is facing 125 years in prison.

Let that be a lesson to would-be rats. It doesn’t always cut the way you think, and sometimes, just sometimes, the judge won’t rubber stamp the deal. Mike at Crime & Federalism praises Sullivan for his independence, and he’s got a good point. The job of judge isn’t to play handmaiden to the government, and the judge is supposed to make up his own mind as to what the proper disposition should be.

But this comes at me from a somewhat different direction than Mike. As one gets older, one sees kids grow up, and some eventually put on robes. I remember Richard Sullivan as a snot-nosed AUSA, having had a case with him early in his prosecutorial career. I’ve never been before him since he took the bench, but he was seriously anti-defendant then, and I can’t imagine that power has mellowed him any. He was the kind of prosecutor who would demand extra time for a defendant because he figured he would commit a crime in the future, and he might as well get him sentence for it ahead of time. Why get behind the curve?

Not all former prosecutors that I knew before they became judges turned out this way. John Gleeson didn’t. Louis Freeh, somewhat. But Richard Sullivan was too tough as a prosecutor, and obviously hasn’t changed his ways. I’m all for an independent judiciary, but I’m also for judges who don’t view themselves as avenging angels. I don’t know that Richard Sullivan can ever be talked off the ledge, and I’m not for judges who think that there’s no such thing as too harsh.

But the good thing about Sullivan, and particularly his decision with regard to putting DiPascali in on the plea when everyone expected him to walk out, is that it shakes up the rules for rats that too many rely upon when talking their way out of culpability at the expense of their brothers.

A large contingent of the defense bar has come to anticipate that they can skate around their responsibilities as defenders and fulfill their criminal clients’ wildest dreams by becoming adjuncts to the prosecution. The clients say whatever they have to in order to save their skin; some of it may be true, but it’s often filled with the false details, the negative innuendo , that matches the prosecution’s desires to clean up a dirty case. Let them have sleepness nights wondering whether they will have to face Judge Sullivan, who couldn’t give a rats ass what they sold to cut their deal. And let their lawyers look like fools and liars when they slap on the cuffs. This was never my idea of how to practice law, and I’ve never found a way to rationalize ignoring my duty to my clients to cut the quick and easy deal.

I guess there is a need for judges like Richard Sullivan. I just hope that I’m never before him. With my luck, he’ll be the judge in my next case. And he’ll pay me back for my first one.

It’s 2:00 am; Do You Know Where Your Kids Are?

At least it’s 2 am in New York. In Almeria, it’s 8 am, which means it’s time for fencers to start the day with a 5 mile run before breakfast. Also before the temperature reaches 110 degrees in the shade.

It’s hard to wake up at 1 in the morning, and on the first morning after arrival, your body still feels like it’s in New York, no matter what language the signs say. But the coaches, none of whom are American by the way, feel that the United States fencers are soft and need some toughening up. They are employing the modified Ukrainian method. Modified only in the sense that there are no beatings with fists. Otherwise, it’s the same.

The fencing venue looks to have been built for an Olympics, huge with tons of marble. But no working air conditioning. It gets incredibly hot in there, especially by the third practice of the day in the late afternoon. The third practice lasts about 3 hours, or until someone passes out from heat exhaustion. A few of us soft American parents try to remind the coaches that no child should die in this process. They think we’re all wussies.

For this week, they are fencing with the Ukrainian national team. This isn’t the American national team, but just kid fencers who were good enough to get asked to come, so they are a bit outmatched. Still, they are holding their own against the Ukrainians for the most part. Mind you, the Ukrainian team is fresh when it starts fencing; the American kids have an hour workout in the heat before they start to bout. Some of them look like they can’t stand up, they are so exhausted. Still, they fence their hearts out.

Did I mention the food is awful? I love Spanish food, but the food in the hotel is just miserable. So it’s a good thing that the fencers are too tired to eat. But then when sleep time rolls around, at 10 o’clock Almeria time (or 4 pm New York time), they can’t quite do it. They toss and turn until about 4 am Almerica time (10 pm New York time), when they pass out.

But they are back up at 2 am New York time to run 5 miles the next morning. These kids could argue, but they would rather do it, fight through the exhaustion and prove they are as tough as the Ukrainians.

The real competition begins on Sunday. We’re here early to get adjusted. It’s taking quite a bit of adjustment. If only they had better food.

Simels Goes Down

Bob Simels was convicted of 12 out of 13 counts.

Robert Simels, a New York criminal defense lawyer, was convicted by a jury of a scheme to “eliminate” and “neutralize” federal witnesses slated to testify against one of his clients.

Simels, a former Special Assistant Attorney General for New York’s Special Prosecutor’s Office who once represented pop artist Peter Max, was convicted of 12 of 13 charges against him, including multiple counts of witness tampering, bribery, and illegal possession of eavesdropping equipment. He was cleared of a sole charge of making false statements to the U.S.

My understanding of the case, relying on some awful tapes made by the rat of Simels giving instruction about “eliminating” and “neutralizing” witnesses, is that the context and detail of the tapes was damning. As much as he could explain his use of specific words, the surrounding detail was far harder to dismiss, and undermined his argument that this was just his way of using “street” talk to make his point to the rat.

In an earlier New York Law Journal article, a number of practitioners were asked if they would use language like Simels. They gave carefully guarded answers, conceding that we talk to clients in a different fashion than we would to a judge or jury, using words designed to make our point in a way the listening would best understand. Of course, no one was asked, or answered, about how much detail would be used in describing how one would eliminate a witness, particularly about harming bystanders in the process. The lawyers were careful not suggest use of the precise language used by Simels.

This case will likely have a chilling effect on how lawyers speak to clients, their family and “friends” in the future. It’s good that it does. The words Bob Simels used weren’t necessary, and perhaps this will remind all of us not to be careless, sloppy or confusing in our choice of language. Of course, the jury believed that Simels did chose his words carefully, and meant exactly what he said.

This should also remind us that we are lawyers, and our zealous representation must always remain within the bounds of the law.

What is troubling is that Simels associate, Arienne Irving, who has been largely forgotten in this case although she too faces life in prison, was convicted along with Simels. It’s my read from the news reports that there was essentially no evidence against her, other than being Simels associate. While Simels is master of his own fate and made his own choices, I question what role she had in this fiasco, and whether her indictment was a ploy to get her to flip on Simels. Now she’s convicted, and it’s not clear what she did or how she shared Simels’ intent to justify it.

While it’s fair to rip Simels to shreds, give some though to Arienne Irving.

H/T Ed at Blawgreview.

Plax Cops to 2

In a shocking move, Plaxico Burress pleaded guilty to a sentence of 2 years imprisonment. It’s not so much shocking because it ended up this way, but because this offer would have remained on the table until trial, leaving his lawyer, Ben Brafman, with the chance to move, per Heller, to dismiss the indictment, without any risk to the defendant’s circumstances.

Of course, sometimes defendants just want to be done with the case. The fight drains out of them and the uncertainty becomes more painful than the harsh reality.

I wonder if that’s happened here.

The shame is that this was the perfect case for a Heller motion, but it’s not to be.

Fender Bender. A Really Bad Fender Bender

There are fender benders and there are fender benders. This might be the all time worst.

For the one or two of you who, like me, didn’t make it out to the Monterrey Historic races, consider this one :

Some of us weren’t able to attend the Monterey Historic races over the weekend, but the first thing we heard once the laptop spooled up was that a very expensive Ferrari 250 TR smacked into a bunch of tires at Laguna Seca. This has turned into the crash heard ’round the world for a few simple reasons. Make that thirty four reasons, to be exact. That’s right Ferrari only made 34 250 Testa Rossas from 1956 to 1961. Actually, let’s just make that 21 reasons, as the 250 TR is the preferred version of the car, and only 19 customer cars and 2 racers were built between 1958 and 1959. And while a 1957 250 Testa Rossa just sold this past May for $12,200,000, making it the most expensive car, well, ever — the 1958 TR that cashed this weekend is “only” worth about $8 million.

Some might ask why anyone would drive a car this valuable around a race course. Because this car must be driven. There’s just no other answer. Besides, if you can’t afford the crash, this isn’t the right car for you.

And some details.

1958 Ferrari 250 TR post crash at Laguna Seca – click image above to watch the “video”

Here and There, Aqui y alli (Update)

The expediter expedited. The impossible happened (and really quickly), and I am now on the Costa del Sol. After putting the traumatic travel events behind me, I just wanted to let it be known that we are alive and kicking. Tired, but kicking. Cafe con leche helps. Cerveza tambien. Don’t even ask what it took to get from Malaga airport to the hotel in Almeria.

Only important news is that Supremes have sent Troy Davis back to the District Court for an evidentiary hearing. He’s not dead yet, and maybe there’s still some life in actual innocence as well.

I’ve read the comments left in the interim. Some are great. Some aren’t. I leave them to you to figure it out. For those inclined to be jerks, try your best not to. Please.

Biggest question: Why have we heard nothing from Dan Solove? Maybe some of the other blawgers in the practical blawgosphere might be interested in why the lawprofs aren’t talking to them?

Second biggest question: How many people at the Harris County Criminal Justice Center will smile at Andy Nolen, the scoundrel, when he walks down the hallway?

Hasta luego.

Update: Met the former police commissioner of Andalucia, who just happens to be a fencing master training the Spanish national team. He asked what I did for a living, via translator, and I explained I was a criminal defense lawyer. He then responded, through the translator, that he knew I was a policeman the moment he saw me, and he’s going to take special care of my son. Something was lost in translation, but I can live with that.

He asked me where I was from and I said Nueva York. He said, “Guiliani?” and we both pretended to spit at the same time. I guess Guiliani doesn’t translate well either.

Leaving On A Jet Plane

The plan is that I’m to travel with my son today, to attend an international fencing camp where, ultimately, the Americans will fence the French for world supremacy. My son will be on the American team. The plan is that we’ll remain on the beautiful Costa del Sol for about two weeks, defending America’s honor. And other fun stuff.

If things work out the way they are planned, I should have access to the internet as I do normally. That’s what they told me. You might never know I was typing from a lounge chair on the playa. No, I will not be wearing a speedo. Trust me on this.

But so far, things aren’t working out exactly as planned. When I pulled out my passport this morning, I happened to take a look inside (for no particular reason) and noticed that it expired last April. Expired, as in it’s no good anymore to travel to Spain. I called the State Department, who asked me who died. I said I did. The duty officer was not amused.

So, very early tomorrow morning I will go to an expediter, who will take my expired passport and new application and a not insubstantial sum of money to the Passport officer and try to procure me a new one. I will wait around for him, folding and unfolding my hands. I will hum tunes. I will be patient. I have no choice. I screwed up. Now I must pay the piper. Or the expediter, as the case may be.

So things are in flux at the moment, but the one thing that will not happen is writing posts. When I say I’m going very early, I mean it, and there will be no time for posts. Whether there will be time later, or from Spain, or not from Spain according to how expeditious the expediter can be, has yet to be seen. I have no idea what the day will bring. But I will not disappoint my son, and I will do everything possible to make this trip happen.

At least, that’s the plan.

Come Out, Come Out, Wherever You Are

Just the other day, Lawprof Dan Solove, Concurring Opinions honcho, stopped by here to let me know that I’ve annoyed him.

I’m rather surprised you continue to read Concurring Opinions given your contempt for academia. If we’re all a bunch of clueless out-of-touch fools with our heads in the clouds, and the true wisdom is held by those who practice law, then why waste your time reading us?

But perhaps that’s what you want to continue doing — make broad generalizations about academics and bash these stereotypes.

I’m not writing to try to convince you otherwise — the tone of your post and others demonstrates that you’re not likely to change your opinion of academics anytime soon. But I must say that I find your post and others about my co-bloggers to be unnecessarily dismissive and nasty.

I’m not writing to stop you. Continue on if you must. Hurl out your insults, hasty assumptions, and anti-academic tirades. It’s a big blogosphere, and everyone’s entitled to his/her opinion. I just couldn’t resist venting my annoyance.

It seems I touched a nerve. I responded to Dan by challenging his underlying assumptions:

I read Co-Op. I read PrawfsBlawg. I read many of the lawprof blawgs. I read them because many of the posts are fascinating, have new ideas or express worn thoughts in new ways. I read them because I learn from them. Although this might not give rise to a post about how wonderful they are, though it sometimes does, I read every post at Co-Op because it adds to my knowledge. Lawprofs are happy to receive positive reactions. But must they whine when it’s not all hugs and kisses?

And what about you? Do you read practitioner blawgs? Any of them? Aside from the odd post that mentions your name, what practitioner blawgs do you read regularly? When is the last time you, or anyone over at Co-Op, has suggested that a practitioner has anything worthwhile to add? Practitioners have quite a bit to say, and a wealth of insight into how the law actually functions. Yet you wouldn’t know it from Co-Op.

Unfortunately, that’s the last I’ve heard from Dan. Jdog suggested that the better reaction from lawprofs was to interact with practitioners, rather than engage in hyperbolic hit and run.

But here’s an idea: attack the arguments he’s actually making. Not “the true wisdom is held by those who practice law”, but some useful wisdom and insight into law is learned by the practice of law, and ought to be incorporated into the study of law — particularly by those who are going to teach others to practice law.

He didn’t say that for the first — or twenty-first time — in his response to you here; it’s a theme he’s been harping on as long as I’ve been a regular reader of SJ.

From this outsider’s POV, it’s a curiosity of legal academia. In medical academia, there’s a whole lot of attention paid to the experience of clinicians — and if you need a few cites, they’re easy to find. In Civil Engineering trade schools, a whole lot of the academics not only have done things like, say, build bridges what haven’t fallen down, but pay a fair amount of attention to them what has built bridges what haven’t fallen down.

My “attacks” on academia, which Dan reads as “vehement contempt,” are invitations to challenge the intersection of theory and practice. While many practitioners have no use for academics, many of whom have little or no real world experience in the law despite the fact that they are charged with raising the next crop of practicing lawyers, I disagree. As I explained in my response to Dan’s comment (which he would have called a tirade had I written it to him, but I won’t because he’ll be offended by my tone), we can do better working together than ignoring each other.

John Neff’s reaction to the tête-à-tête was that the practitioners were being “shunned” by the lawprofs. I suspect that Dan doesn’t see it that way. I suspect that Dan sees it the problem as one of our making, that we’re too inclined to attack in offensive tones and course language. We can’t manage to get our point across in a sufficiently nuanced, which some might characterize as effete, manner. Dan is right about this. We are a bit brutish compared to the lawprofs, and they may be rightly offended by our tone.

But is the answer to hide, Dan? You think we don’t like you. We think you don’t like us. Outsiders think this is ridiculous, having the potential for far more useful discussion and avoiding it because of hard feelings.

So I pose a question to all of the academics, the scholars, the lawprofs out there. Not just Dan, who was at least ballsy enough to show up here to vent his feelings, but to all of you who post at blawgs about the law, about subjects that affect real people, about your theories that you want judges to adopt. Why won’t you engage in discussions with practitioners?

In the past, you’ve been forced to endure the allegation that you are engaged in a “circle jerk,” a crude description that, almost to a person, has caused no shortage of anger. But the point of this description is that you only interact amongst your own kind, a closed circle that allows for no outsider dissent or challenge. I officially apologize for my own use of this offensive and juvenile phrase, though not for the concept it embodies. It’s accurate. But it can be changed.

And if you don’t respond, don’t engage, continue to shun practicing lawyers while inviting only members of your own club to react, we are left to conclude that you have no faith in your scholarship, that it can’t withstand scrutiny by practitioners. If so, then what purpose is there to your scholarship? All those smart people holed away in the Ivory Tower, unwilling to have their theories put to the test. Then we are left with no doubt that you write only to amuse yourselves and impress your friends in the Academy.

Is that all there is to legal academia? Maybe I’m way off the mark. Hey, I’m no scholar, just a trench lawyer trying to learn a thing or two from people who have better thoughts than me. If I’m wrong, let me know. Dan, Dave, the other Dan, anyone? Let’s get this out in the open. It’s time for a little sunshine on this divide between the acadmics and the practitioners. Let me have it. Hit me with your best shot. I can take it. Let’s air it out and then put this hostility behind us. We will all be better off this way.

But stop hiding. We know you’re out there.

Health Care Follies

Discussion of health care is all the rage in the media, and like most of you, I watch and read with delight, learning much about my fellow Americans. My self-perception was that I was reasonably well-informed, but I’ve come to learn that my certainty that health care reform was needed, but nagging doubts about whether the proposals on the table were adequate, reflect my ignorance.

The media has been bending over backwards to try to show sentiment from all sides of the debate. It seems that mine isn’t shared by many. Most people are either quite certain that the Democrats’ plans are the spawn of the devil or that they are Utopian dreams. And Sarah Palin insists that we’ll have death panels, no matter what anybody says, so that her quitting government won’t be in vain.

Here are some of the things I learned:

An altacacca informed me that she won’t tolerate government messing with her medicare, and government better keep its mitts out of healthcare.

A men from Georgia, who I believe is a baseball player for the team “John Deere” based upon his cap, though his weight belies his athleticism, informed me that 85% of Americans already have healthcare and are doing just fine, so why screw it all up for the 15% who are too lazy to get a job.

A morbidly obese woman, who seemed very nice and cuddly, informed me that the government is violating her constitutional rights by making her pay for someone else’s healthcare.

A man in Pennsylvania informed me that Arlen Specter is evil and will have to stand before God one day for judgment.

Utah Senator Orrin Hatch informed me that it is wrong to characterize people expressing their concerns by screaming stupid stuff in public at government officials as unAmerican. I bet Henry Gates will be happy to hear this.

I’ve come to realize that anyone who has healthcare coverage that they don’t have to pay for themselves is very happy with the current system, and that as much as they don’t want anyone denied coverage (except people who speak Spanish), they aren’t about to jeopardize their own situation to help them.

I’ve come to realize that there are a lot of people who just hate paying taxes, and anything that holds the potential to raise taxes is evil. This doesn’t apply to bombs and weapons systems, which are needed to protect freedom. Freedom isn’t free.

I’ve come to realize that the Constitution protects Americans, and that each and every American gets to interpret it in whatever way best suits their pocketbook. While I’ve long believed that the Constitution is a flexible document, I never realized it was that flexible.

I’ve come to realize that healthcare is an individual right. Individual in the sense that only that one individual has a right to it, and all the other individuals can go screw themselves.

I’ve come to realize that very few, maybe even no one, shares my concerns over whether a subject as sensitive and critical as healthcare can be entrusted to a new bureaucracy comprised of official women will fulfill the needs of Americans who are currently paying exorbitant premiums or have no access to care aside from emergency rooms today. While carriers and managed care providers have done a less than spectacular job of demonstrating an intelligent approach, I remain concerned that government could be as bad if not worse at it.

I similarly worry that the monies siphoned out of the system in salaries, bonuses and profits of private insurers, drug companies, doctors with their own CAT scans convincing seniors who use their offices as social centers to have every booboo tested, resulting in the exorbitant premiums paid by those of us who don’t have an employer to cover our costs, will be lost to government officials whose assistants, undersecretaries, deputies, assistant deputies and their 75,000 employees in 96 regional centers instead.

I worry that the conference committee will design a camel to race with thoroughbreds, in order to appease every special interest group needed to be on board with reform.

And I worry about the people who live amongst us and don’t have affordable health care. They are perfectly nice people. They have cute kids. They could use access to health care too. I know that it could cost me some more money, though I still can’t figure out where all the money I pay in premiums is going since my family only uses about 1% of what we pay in premiums for our medical needs. But my American can afford to make sure no one lacks medical care. Or starves to death. I’m prepared to give up a few bunker busters to pay for it, and maybe a F-whatever bomber or two.

But then, I don’t know nearly as much about healthcare as others. Or so I’m informed.

Reason #37 To Hire Cops Who Shave

Long Branch, New Jersey, police officers Kristie Buble and Derrick Meyers, both 24, walked up to some old guy, wet from the rain and peering into the window of a vacant house, to investigate. He told them his name, but he had no ID. The accompanied him to his tour buses, where he proved he was Bob Dylan.

Like a rolling stone. It’s hard to be a legend in New Jersey.

Addendum: Dr. SJ informs me that I’m an idiot for making light of this as just another stupid story. “Since when does someone have to produce identification to cops in order to walk around?” She’s right, of course. I find myself relieved whenever a police/citizen interaction doesn’t result in tasing, arrest or death. My expectations are so very low.