Author Archives: SHG

Client Relations

There has long been a tension among white powder criminal defense lawyers from Miami and New York about getting and keeping good clients. As far as business goes, there’s none better. They have the wherewithal to retain counsel, and the right attitude about it. Lawyers are a cost of doing business.

But times change, and this once burgeoning practice niche has changed with it. The business-like approach gave way to kids who saw Tony Montana as a role model, who lived fast and furious, so that they were often broke by the time they were arrested despite the significant sums they earned in their short careers. Sorry, but not interested in taking that 20 pound diamond encrusted gold necklace as a fee, no matter how much you paid for it.

When the real deal comes along, the drug defendant who has both money to pay lawyers and the business approach to business, lawyers want to score the case and, once retained, keep the client. Especially from other lawyers poaching, and there was never a shortage of lawyers hanging around the lawyers visiting rooms of MCC, always available for a chat. Prisoners will chat with pretty much anybody in a suit and tie.

The word out of Miami’s Federal Detention Center is that lawyers are now expected to bring some entertainment with them during “counsel” visits. From the Miami New Times :

Stripteases, sexual favors, booze, porn mags, and fat stacks of cash would be run-of-the-mill in many Miami strip clubs. But at downtown’s maximum security Federal Detention Center?

Multiple attorneys interviewed by Riptide say the FDC visitor rooms have been taken over by South American pole dancers posing as paralegals for wealthy drug lords inside. Lawyers hired by the accused narco dons allegedly list the scantily clad women as “legal assistants,” and the FDC lets them in. Meanwhile, attorneys who refuse to go along risk losing their clients to lawyers with busty beauties on staff.

It’s certainly an imaginative use of paraprofessionals. There was a time when a female lawyer in New York snuck a hoagie into MCC between her legs, causing a huge ruckus and changes to the rules that made everyone’s life miserable.

I suppose that it’s no surprise that it’s come to this. The ability to obtain authorization to bring a paralegal into the facility is simple, just a form that says the person is working with the lawyer. Since there’s no licensure involved, who can dispute it? For decades, I’ve had family and friends of defendants who have begged me to list them as my legal assistant so they can come into the facility with me, hang in the private attorney visiting rooms and enjoy a bit more privacy and personal contact.

All these years, I’ve refused. Not because I didn’t think I could get away with it, but because I wasn’t a pimp.

One hopes that retention as a lawyer has something to do with one’s ability and integrity as a lawyer. And no doubt, that factors into the equation, but it’s awfully hard to complete with this when your client is lonely.

“They take off their tops and let the guys touch them,” veteran defense attorney Hugo Rodriguez says. “The majority of these young, very attractive women are noncitizens brought in exclusively for the purposes of visiting the FDC. Any lawyer can sign a form and designate a legal assistant. There is no way of verifying it. The process is being abused.”

From the perspective of a defendant who may not have the greatest respect for the law or orderly adherence to administrative rules, and who may be paying the lawyer handsomely for his services, pushing the envelope just a wee bit probably doesn’t seem like too much to ask. After all, why can’t a stripper be as much of a legal assistant as, say, a legal assistant? It’s hard to explain the downside without coming off a bit prissy and unhelpful.

And since there is no shortage of lawyers interested in handling these cases, representing these defendants, the competition is fierce. Clearly, too fierce.

It’s not exactly surprising that it’s come to this. Defendants in narcotics conspiracy cases spend a long time in jail awaiting trial, often years, and due to the presumption, they’re almost always detained. It’s lonely. It’s unpleasant. It’s boring. And they’re used to living a pretty interesting life, and they miss their life. It’s no surprise that the lawyer who can make their detention more enjoyable is appreciated.

The problem is that we’re lawyers, not procurers. Once we cross that line, it’s impossible to go back. Once we reduce our role to conduits for hot women, we need to go shopping for purple velour suits with matching wide-brimmed hats. Hey, if you’re going to be a pimp, at least look good doing it.

There was once a time when lawyers competed for these great cases based upon our ability to fight, and maybe to win. It was skill, and we offered the experience and ability to give them the best possible chance of walking out of the Federal Detention Facility. We sold our ability as lawyers. We didn’t offer S&H Green Stamps or a free toaster. And we didn’t bring in strippers.

Leave it to the Miami guys to take it down to a new level, where the accusations of being unscrupulous vultures, willing to do anything to score a case, became their stock in trade. Kinda makes the hoagie days seem quaint.

When Bullying is Bull

When I first posed the question of how one defines “cyberbullying,” I received no good answers. That’s because there are none, the proponents of laws against bullying preferring to ignore problems like definitions in favor of outcomes, like any conduct that makes someone feel badly. This, of course, fails any test of providing notice of prohibited conduct, and empowers teacups everywhere to lash out at their nemeses.

Of course, when anything can fall within a definition, it’s easy to make claims that the problem is pervasive, and hence demanding of extreme and immediate action. Proponents of anti-bullying laws have bootstrapped a handful of high profile instances into the suggestion that this is a “pandemic.” Hans Bader at the Examiner isn’t buying.

As the Associated Press noted in March 2010, “There’s been a sharp drop in the percentage of America’s children being bullied or beaten up by their peers, according to a new national survey by experts . . . The study, funded by the U.S. Department of Justice, found that the percentage of children who reported being physically bullied over the past year had declined from nearly 22 percent in 2003 to under 15 percent in 2008.”

The myth that bullying has risen among girls was debunked in an April 2010 New York Times column, “The Myth of Mean Girls.” As it noted, “this panic is a hoax. We have examined every major index of crime on which the authorities rely. None show a recent increase in girls’ violence; in fact, every reliable measure shows that violence by girls has been plummeting for years.”

Proponents of anti-bullying legislation fight this with everything they’ve got. It’s real, they scream as they stamp their feet. And in their world, it is.

The anti-bullying website nobully.com defines even “eye rolling” as bullying, so if you roll your eyes at a bully, you yourself can be accused of “bullying.” Its ridiculously-broad definition has been adopted by schools like Fox Hill and Alvarado Elementary, which define “eye rolling” and “staring” as “bullying.” As a small middle-schooler, I rolled my eyes at bullies. A recent survey defined bullying to include “the use of one’s . . . popularity to . . . embarrass another person on purpose.”

A student can even be deemed guilty of “bullying” for not inviting a hostile classmate to her birthday party, since social “exclusion” is considered bullying (even though forcing children to invite unwanted guests to their birthday party can violate their right to free association). As a bullying victim noted in response to an article about such broad anti-bullying policies, “as someone who was frequently bullied as a youth, this policy would have required me to invite my own bullies to my birthday party. That sounds exceedingly miserable.”

Don’t roll your eyes as you read this, as that would make you a bully. There is no question that real bullying happens, where the big kid pushes around the little kid and takes his lunch money upon threat of a beating. There is no question that it goes farther or in other directions. But there is also no question that the parameters of bullying are so utterly undefined as to make the threats of criminality absurd.

Forty-five states “have laws requiring public schools to adopt anti-bullying policies,” but there’s no federal law against bullying, in general. That hasn’t stopped the Obama administration from trying to federalize anti-bullying policy. Its StopBullying.gov website defines “teasing” as a form of “bullying,” and “rude” or “hurtful” “text messages” as “cyberbullying.” Since “creating web sites” that “make fun of others” also is deemed “cyberbullying,” conservative websites that poke fun at the president are presumably guilty of cyberbullying under this strange definition. (Law professors like UCLA’s Eugene Volokh have criticized bills by liberal lawmakers like Congresswoman Linda Sanchez (D-Calif.) that would ban some criticism of politicians as cyberbullying.)

Bader goes on to argue why bullying isn’t susceptible to federal criminalization, and unfortunately shows a glaring lack of practicality, likely resulting from political blinders. Indeed, it strikes me as remarkably clear how the feds can regulate and criminalize bullying, both in school and online, provided your reading of the elastic clause isn’t guided by Atlas Shrugged.

It’s impossible to have any sort of reasoned discussion about bullying in the absence of a viable definition, and yet the conduct that is being swept into the mix continues to devolve. The overarching criterion seems to be conduct that is “hurtful,” which leaves it to the person whose feelings are affected to determine that someone else is a bully. This can’t be.

The issue isn’t the mechanisms by which bullying occurs, even though the feds have an arguable basis for regulating these platforms or arenas. The issue is defining the conduct that comes within the parameters of regulation. The issue is that the teacups, the overly sensitive who are finally empowered to assert their feelings on the conduct of others, cannot be allowed to define wrongs based on their personal delicate sensibilities.

While most of us focus on this issue for only the few moments a high profile case arises, those who are behind the anti-bullying legislative thrust to vindicate their hurt feelings or further their scholarly niche are still busy at work pushing laws that would make most, if not all, of us and our children criminals. At some point, everyone hurts another person’s feelings, whether deliberately or by benign neglect.

Bader’s post reminds us that as we go off to other issues and problems, the anti-bullying push continues unabated, and we may well wake up one morning by a knock on the door by g-men informing us that our kid is under arrest for eye-rolling in the first degree.

The New Rule of Lenity

The Rule of Lenity is that statutory ambiguities are to be resolves in favor of the criminal defendant. It’s a rule honored primarily in the breach, forcing judges to perform amazing gymnastics to avoid the appearance of ambiguity despite having to leap statutory holes in the process. For those disinclined toward judicial law-making, it compels judges to create law rather than cut the defendant a break.

But the Rule of Lenity strikes at the heart of criminal law. In the absence of a law satisfying all the requisites to create a crime and impose punishment, there is no crime. Many may argue there should be, and perhaps there should, but it’s the job of legislators to get it straight, not the rabble and not the judges.

The Supreme Court granted cert in Fuller v. United States, a gap case out of the 6th Circuit addressing the poor schnooks caught in the hole Congress left when partially normalizing the ratio of crack to cocaine by reducing the 100 to 1 ratio to 18 to 1, the factual creation of a camel when a racehorse was needed. The New York Times explains:

Selling cocaine in crack form used to subject offenders to the same sentence one would get for selling 100 times as much in powder. The new law, the Fair Sentencing Act of 2010, reduced the disparity to 18 to 1, at least for people who committed their offenses after the law became effective on Aug. 3, 2010.

But what about people who committed their offenses before the statute came into force but were not sentenced until afterward?

For such defendants, Judge Terence T. Evans wrote in one of the pair of cases the Supreme Court agreed to hear, the law “might benefit from a slight name change: The Not Quite as Fair as it could be Sentencing Act of 2010 (NQFSA) would be a bit more descriptive.”

The rule of retroactivity is that a change in the law isn’t retroactive unless Congress says it is. After all, the change is a creature of statute, and those enacting the change can decide how it should apply. Congress did not make the reduction retroactive, while asserting that the change was needed because the law was patently unfair.

As Judge Evans explained in his decision for a unanimous 7th Circuit panel in United States v. Fisher, the defendant

…had “lost on a temporal roll of the cosmic dice” and was “sentenced under a structure which has now been recognized as unfair.” But Judge Evans added that the courts were powerless to change things. A solution, he said, was up to Congress.

As Louisville Law Dean Jim Chen wrote, “Glaubt, daß nicht Gott sondern Mensch Würfel mit dem Universum spielt,” to which Antonin Pribetic presciently added, “Schlange augen, sie verlieren.” Reason demands that criminal punishment has to be more than a mere roll of the cosmic dice. Even 7th Circuit Judge Richard Posner couldn’t keep his head in the sand:

Judge Richard A. Posner, said that requiring sentencing under the old law after the new one came into force was “perverse” and “gratuitously silly.”

Yet there was no attempt at glorious gymnastics to figure out a way to salvage the lives of human beings sent to prison under a regime that Congress and the court concluded was patently wrong. What a difference a day makes.

As happens more often than we care to admit, the law fails to provide a path that allows a court to get around the holes left behind by Congress. This isn’t about favoring one side or the other, or despising a law so much that a judge wants to ignore or overcome it, but about a situation where there is universal recognition that something is terribly wrong, inexplicable and irrational, and yet Congress left a big hole behind.

Some suggest that Congress, made up of the people who can manage to avoid too much public controversy, kiss enough babies or speak in sufficiently small words to persuade voters that they share a common belief, deliberately leave behind holes because they don’t want to be held accountable for doing the dirty work and much prefer life-tenured judges to do it for them. Others suggest that there aren’t enough people in Congress who realize the sloppiness of their work. Still others chalk it up to the nature of politics.

“Thoughtful people might wonder what sense it makes for Congress, having decided that a 100-to-1 ratio is excessive, to leave the minimum and maximum sentences alone for persons whose crimes predate Aug. 3, 2010,” Chief Judge Frank H. Easterbrook wrote in explaining why the full court declined to rehear four appeals presenting the issue. “It is a good question, to which there is no satisfactory answer other than the observation that legislation is an exercise in compromise.”

Compromise is the nature of politics, but not of law. The blind adoration of consensus has served as a ready excuse for plenty of bad decisions, but when it produces a result that is so concededly unfair and irrational, its rote application reduces the legitimacy of the legal system to a joke. We shouldn’t be rubber-stamping absurdities.

The Supreme Court has an opportunity to change this. The expectation is that they will exercise modesty, dealing at most with the particulars of the case before them rather than the crafting a broader rule that addresses the true wrong of the case. Indeed, chances are good that they will chastise Congress for doing half a job, but concluding that it’s not up to the courts to legislate. Of course, that means that the rule it announces is that it is the job of the courts to enforce the absurd and irrational, but it’s unlikely that they’ll say it quite that way.

There is an alternative, however. Under the ambit of equal protection, the Supremes could hold that the Constitution precludes a court from imposing a criminal sentence that Congress has specifically determined to be wrong and unfair. While Congress may have left a gaping hole in its legislation, that doesn’t require courts to drop bodies into it. When such a hole exists, the Supremes could expand the Rule of Lenity to bridge it, to serve as the basis for filling the hole of absurdity as well as ambiguity Congress left behind.

This isn’t a paean to judicial arrogance or lawmaking, but judicial rationalizing, or perhaps the refusal of the courts to be subject to the execution of legislative absurdity. No branch of government should be compelled to act irrationally, and equal protection of law demands that every defendant be subject to a fair and reasoned application of law. Unless you think thoroughbreds need humps.

What? Are You Deaf or Something?

Guess what? Yeah, some people are deaf. And yet, they’re still people, not some weird subhuman species to be ignored because they just don’t get it when you talk at them. One of the most intractable problems with police is dealing with people who have a disability, and with shocking regularity, bad things happen.

For somewhat obvious reasons, being deaf seems to bring out the worst, and stupidest, in law enforcement. What happened to Timothy Siaki is a good example. From MSNBC by way of Turley :

Siaki does not speak, read, write or read lips and he and Moore communicate by American Sign Language, the suit states.

The couple were at a local motel on May 14, 2010, when they started to “verbalize sounds which … may sound like the deaf person is speaking loudly or abruptly,” the suit said.

Those sounds led to someone calling police about a disturbance. Two deputies dispatched to the scene broke down the motel room door and arrested Siaki.

And he sat in jail for the next 25 days because Adams County, Colorado, Sheriff Doug Darr didn’t bother to find an American Sign Language interpreter. Siaki had no idea why he was sitting in jail, or what was happening to him. No doubt someone told him. If things went the usual course, they likely told him over and over, each time raising their voice a bit more, until they were screaming at him. After all, if you scream at a deaf person, should they hear?

Disabilities make the job really difficult for cops. Deaf, blind, developmentally disabled. Where does it stop? What are they supposed to do when they give a perfectly reasonable command to jump and a guy doesn’t do it? Isn’t that what weapons are for?

Of course, it’s easy to say they could have done more afterward, but they make split second decisions, even if they take 25 days to make them.

And hidden just below the surface of this crack police work is the question of why they arrested Siaki at all. For making weird “deaf guy noises?” There’s no fault for responding to a call of a disturbance. There isn’t even a problem with breaking down the door of the hotel room, likely after no one responded to their knocks or screams, “police, open up or we’ll kill you, you lousy commies.” All completely understandable.

But once inside, did they observe anything to suggest a crime? No one hurt. No blood. Not even a boo boo. Where’s the offense? While the article fails to speak to this aspect of the debacle, I’ll engage in some rank speculation. Siaki was arrested for lack of obedience. He assaulted the police with his deafness. They demanded answers and action, and he didn’t comply. Deaf people can be so contemptuous.

How they explained this to the judge who had Siaki held is another curiosity, but why would a judge demonstrate any degree of recognition of a problem with a deaf man who fails to argue his cause or clearly explain his predicament. It’s not like the judge is sufficiently educated to recognize and appreciate the situation. Plus, the judge was probably busy and preoccupied with more important matters, like lunch or golf or re-election.

In an excess of caution, it’s worth noting that deaf people don’t always make things easier for themselves. There’s a militant wing among the hearing impaired that argues deafness is not a disability, but an alternate culture. They refuse to acknowledge that they suffer from any impairment, and contend instead that they simply speak a different language and enjoy a world that the hearing can neither understand nor appreciate. These are the people who refuse to allow their children to get cochlear implants, as if it’s converting to radical Islam.

Because they suffer no disability, there’s no issue to be resolved, no problem to be fixed. Until they find themselves staring down the end of a cop’s barrel, and can’t manage to make their philosophical point quickly enough to beat the rush of the bullet. At that particular moment, it likely seems that they would have done better to embrace teaching hearing people ASL rather than disdain their interest because the hearing are unworthy of participating in the joys of deaf culture.

So Siaki is suing under the Americans with Disabilities Act for compensation for the 25 days spent sitting in a cell waiting for somebody to explain to him in ASL why he’s there. This suit would be novel, except for the fact that it’s anything but. In Jefferson County, Colorado, the same thing happened, where Anna Orozco was twice arrested, but they had no one capable of communicating with her in ASL.

One might suspect that the various sheriffs in Colorado would have gotten the message that they are required to provide a means of communicating with the folks they toss in the slammer, and they would have details like this all wrapped up ahead of time. Maybe Sheriff Darr didn’t hear.

No Way Out

Since this isn’t supposed to happen under our system, the best ever devised, nobody ever thought it was necessary to come up with a simple way to fix it. From the Washington Post :

They believed that their son was innocent but were afraid that Virginia’s penal system would grab hold of him and never let go.

So Cherri Dulaney and Edgar Coker Sr. told 15-year-old Edgar Jr. to plead guilty to raping a 14-year-old friend. Their court-appointed attorney told them that was better than risking adult charges and a lengthy prison term.

Two months after their decision, in November 2007, the girl admitted that she had lied.

To an outsider, it all seems simple enough. The “legal system,” which is personified in the minds of most non-lawyers, should give Edgar, Jr., a call, apologize for the inconvenience while duly shuffling its feet, and wipe the slate clean. Maybe even give him a special wall plaque proclaiming he’s no sex offender. Can anyone doubt that it’s the only right thing to do?

The Cokers have been fighting ever since to rescue their son from the consequences. He served 17 months in a juvenile prison. He remains on the Virginia sex-offender registry, and the family moved to avoid harassment from neighbors.

Last month, Coker, now 20, was arrested during a Friday night football game at the Orange, Va., high school he graduated from after his release from juvenile prison. Unless they have permission from the school, convicted violent sex offenders are not permitted on school grounds. But Coker had received such permission, and he attended school there for more than a year before graduation.

Edgar, Jr., is young, so he’s got a long, long life ahead of him on the sex offender registry, not putting too much angst into the 17 months served in juvey, 15 of which came after everybody involved knew he was innocent. Where are they hiding that magic button that cleans up this mess? There must be a magic button around here somewhere.

The problem is that Edgar, Jr. pleaded guilty to raping a 14-year-old. In retrospect, it doesn’t look like a really good idea, but staring at a trial, the view was very different. His parents thought it was a good idea, certainly better than spending most of his life in adult prison, where the real meaning of rape is taught. His lawyer thought it was a good idea too.

What about this horrible lawyer who advised his 15 year old client to swear that he committed a crime that never happened? He must incompetent. He’s a danger to society. He should have to live the life his monumentally awful, cowardly, despicable advice laid on an innocent 15-year-old. Right? Right?

Because criminal defense lawyers, as opposed to all other flavors of the species, have the singular ability to see into the future. We’re expected to know what the outcome will be. Or to those who haven’t been paying close attention, the system is so well-tuned, so trustworthy, so sophisticated at distinguishing guilt from innocence, that no poor 15-year-old boy could ever be convicted of a crime he didn’t commit. A crime that never happened.

Look at his face. He’s a good looking young man. Picture him with a smile, and I bet he lights up a room. Would you like to be the one who tells him that room is going to be a prison cell for the next 25 years? Would you like to be the one who assures him that somehow the truth will set him free?

While we often analogize the system to a game, particularly one of chance where we roll the dice and learn later when it’s craps, it’s no game for the kid whose life is on the line. Nor is it a game for his parents, who stand in the background as they likely always have, doing everything they can to guide him, comfort him, protect him from life’s vicissitudes. Most parents would take a bullet for their child. They look like they would too, but there was no bullet to take.

So his lawyer saw a terrible crime, the sort that raises emotions that strangle reason. His lawyer knew what the evidence would be, a 14-year-old girl telling a jury of how she was raped. And the best he could muster was his own client saying it never happened. Who would the jury believe?

Certainty is for the other players in the system. The cops, prosecutors and judges can afford to be certain, and only a few care enough to lose any sleep at night wondering whether they got the wrong guy. They can take comfort in doing their job and letting the system do its. If something goes awry, it’s not their fault. And if something goes awry, they still get to sleep in their own bed no matter what.

The jurors care deeply, but just like feigned claims of passion, deep caring isn’t a substitute for harsh reality. Jurors make a decision with the sense of security in knowing they’ve done their best. Then they too go home to sleep in their own bed. They look in on their children and smile, knowing that theirs isn’t sleeping in a prison cell that night. They’ve done their best to be fair, to be “just,” but they have no magic either. If only there was a big red light over the witness stand that went off when someone was lying. Then they might decide differently. But there’s no light, so they do the best they can.

And if the lawyer for an innocent defendant puffs out his chest and proclaims, we will fight and we will win, does that make it any easier, night after night, for a young man whose world is reduced to an 8 by 10 cell? When the judge, the prosecutor, and probably even the cops, learn that no crime occurred, they probably feel very badly. But then, the defendant was represented by counsel, and he chose to plead guilty. No one made him, they say to themselves. It’s not like we forced this kid to cop out. He could have rolled the dice. He could have taken his chances and risked the rest of his life on the jury believing him rather than the 14-year-old rape victim.

After all, our system is the best mankind has ever invented. What more can we do? Since someone must be at fault, and the person responsible for making sure the entire system doesn’t fail, let’s blame the lawyer who failed to know the future.

The system may not be perfect, but it’s the best there ever was. Keep saying that to yourself. Tell that to Edgar, Jr. Tell that to your own children.

Red Alert

Eric Mayer provides a client alert system, suitable for framing, at The Unwashed Advocate. I would only add that you might consider giving potential clients a tin foil hat on the way out as an inducement to leave your office quickly.

When A Court “Forcefully Condemns” Prosecutors

Are you saying the Officer is a liar?

Great question for the prosecutor to ask of the defendant on cross, right? Completely improper, of course, but as questions with impact go, it’s a doozy.

There are, of course, some excellent responses that can counter the implication that in order to believe the defendant’s testimony, which directly contradicts that of the prosecution’s witnesses, the jury must believe the latter to be lying liars who lie. And of course, maybe they are, but it’s always hard to get twelve people to accept the notion that police would lie. After all, they’re our protectors. They’re heroes. They have no reason to single out the defendant, of all the people in the world, and lie about him. Why would they do such a horrible thing?

Because they can. Because they think the defendant is guilty and will say whatever magic words get the jury to agree with them. Because they think this is the way the game is played, that the ends justify the means, that a little lie takes a bad guy off the street. That in the grand scheme of things, it’s more important that make their bust stick then be slaves to truth. Whatever. There are a million possible reasons, and if one isn’t inclined to stick to the truth just because they swore to do so, there’s no harm in straying for what one decides is the greater good.

Tommy Washington learned the hard way what it’s like to be asked whether he’s saying the prosecution’s witness is a liar. On trial for assault, he didn’t much like it, especially when the jury convicted him. It would have been enormously better for him had his lawyer mustered an objection to the questions. Why he didn’t can’t be explained. Maybe he didn’t know better. Maybe his cuticle was particularly fascinating. Who knows. But it didn’t happen.

On appeal, the defendant challenged the improper questioning, lack of preservation notwithstanding. The Fourth Department held :

Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10 [1]), gang assault in the second degree (§ 120.06) and assault in the second degree (§ 120.05 [2]). Defendant contends that he was denied a fair trial based on the prosecutor’s improper questions on cross-examination concerning whether the prosecution witnesses were lying or were liars. That contention is not preserved for our review inasmuch as defendant failed to object to those questions (see CPL 470.05 [2]), and we decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

We note, however, that such questions were improper (see People v Paul, 229 AD2d 932; People v Paul, 212 AD2d 1020, 1021, lv denied 85 NY2d 912; People v Edwards, 167 AD2d 864, lv denied 77 NY2d 877). As this Court stated over 20 years ago, “[o]n numerous occasions, we have forcefully condemned prosecutorial cross-examination which compels a defendant to state that witnesses lied in their testimony” (People v Eldridge, 151 AD2d 966, 966, lv denied 74 NY2d 808). Unfortunately, we find it necessary once again to forcefully condemn such improper conduct by the prosecutor.

Had the court merely chosen to ignore the glaringly improper questioning for lack of preservation, it wouldn’t have surprised anyone. As much as the defendant’s right to a fair trial is at stake, and his lawyer’s screw-up, the failure to timely object, doesn’t strike many of us as a really good reason for someone to go to prison for 20 years, it’s an easy-breezy way for courts to affirms without addressing the wrong committed by the other side.

Aside: For those who believe that lawyers are fungible, one as good as the next, and hence believe that the only detail they need to know about a lawyer is how much they charge, or how cheaply they can obtain a defense, consider that the defendant is saddled with the lawyer’s error, the missed objection or inadvertent admission or poorly conceived argument. Even though it’s not your fault that the lawyer screwed up, you picked him to be your representative, and you bear the consequences of his failure. Is it worth it?

But that didn’t quite happen here, which is what makes this brief memo decision quite fascinating. The court seized the opportunity to note the impropriety of the prosecution’s cross, forcing the defendant to call the witnesses for the other side liars.

As this Court stated over 20 years ago, “[o]n numerous occasions, we have forcefully condemned prosecutorial cross-examination which compels a defendant to state that witnesses lied in their testimony.”

This isn’t new. This isn’t cutting edge. This is black-letter impropriety. It is so clearly, utterly, definitively wrong that the court finds it necessary to reiterate that it not only condemns such impropriety, but does so “forcefully.” With force. Well, not quite pepper spray level force, but full of the force courts possess, meaning words.

Despite the fact that the court’s use of force more than 20 years ago has not put an end to this odious question, and despite the fact that Tommy Washington’s lawyer neglected to object, the court nonetheless levels its judicial shotgun and

Unfortunately, we find it necessary once again to forcefully condemn such improper conduct by the prosecutor.

And then the court does . . . nothing. As the passage above makes clear, the court had the power to exercise it’s “interest of justice” discretion to review the unpreserved error. It didn’t. The court could have named the prosecutor who engaged in questioning that was so improper that it compelled the court’s forceful condemnation. It didn’t. The court could have done something, anything, to make its words mean something. It didn’t.

Rarely has a forceful condemnation been so unforceful and uncondemning. The mantra in writing is “show me, don’t tell me.” And in fact, the Fourth Department did exactly that. It showed that the impropriety of asking such glaringly improper questions of a defendant on cross examination results in absolutely no negative consequences. No exercise of discretion in the interests of justice just to reach the issue. No stinging reversal for depriving the defendant of a fair trial. No public exposure of the individual engaging in improper conduct. Nothing.

The worst that comes of it, the very harshest thing to happen, is a stern wag of the generic finger. And that’s what this court considers “forceful.” And it wonders why more than 20 years after such questions have been forbidden, they’re still asked.

H/T Brian Shiffrin at New York Criminal Defense

Lawyer Smurf

Down South Carolina way, Bobby Frederick writes about another lawyer lost to the smurfing gods.

Not reporting payments of greater than $10,000 is a sure way to bring the attention of the federal government to your law practice – one purpose of the requirement to report large payments is to prevent money laundering, there is no good reason to not report unless there is something to hide, and breaking money up into smaller amounts to avoid reporting is a separate crime called structuring.

No idea if this is how attention came to Attorney Brian Young in Virginia, but he has been disbarred and was sentenced to two and a half years in prison after pleading guilty in federal court to conspiracy to commit money laundering. Just a guess, but I think his clients and others involved in the scheme probably received a significant time cut for debriefing and offering to testify about Young’s activities.

My old pal “Don’t Worry” Murray sat me down in a deli in the Bronx many years ago and explained that lawyers should never do wrong and expect a client to cover. “They’ll always drop a dime before doing one,” Murray told me. He always had something colorfully pithy to say.

Structuring is the official name for smurfing, breaking up large amounts of cash into smaller amounts that fly under the reporting requirement. It’s illegal. Bobby explains that “there is no good reason to not report unless there is something to hide.” I assume that Bobby is relating the government’s official view, because no criminal defense lawyer takes this position. It’s been so since my old suitemates from the 80s, Paul Goldberger and Larry Dubin, argued that while they had no problem disclosing the receipt of cash fees, disclosing the source of the fees was a big problem.

The problem is that criminal defense lawyers sometimes represent, well, criminals. Of course, they’re entitled to representation too, and their right to counsel (and counsel of choice) directly relates to their ability to retain a lawyer. If the payment of a fee in cash (because some criminals engage in cash transactions. No really, they do.) , then disclosing this in Form 8300 to the government tends to compromise their right to counsel or their right not to bear witness against themselves. You see, the fact that they have a bundle of cash to pay for lawyers is frowned upon by the government. So when the lawyers fill out the forms and names names, they’re giving up their own clients. Something has to give.

To avoid disclosure under section 6050-I, they need only pay counsel in some other manner than with cash. The choice is theirs. None of the appellants has advanced a legitimate reason why payment other than in cash cannot be made. Statements such as “[s]ome clients may not have non-cash assets” are somewhat less than persuasive. Equally unpersuasive is the argument that a would-be client might elect to take his business to an unscrupulous lawyer who would ignore the reporting requirements of section 6050-I. Although the unscrupulous lawyer might not be the client’s first choice, the Sixth Amendment does not guarantee the client the right to his first choice.

Easy, right? Since no one has a right to be a criminal, and earn criminal proceeds, and use those proceeds to hire lawyers to defend them against charges of being a criminal, no harm, no foul. That there are legitimate reasons why people have and use cash, or that the rights afforded by the Constitution might trump the government’s desire to compel lawyers to give up their cash paying, criminal accused clients, because it’s a really great way to ferret out criminal proceeds while simultaneously denying them access to lawyers to defend themselves, is of little concern.

Regardless, the 2d Circuit’s decision was in 1991, eons ago. It’s long settled that the identities of clients who pay lawyers more than $10,000 in cash (or cash equivalents) must be disclosed. And it’s long settled that you can’t avoid the requirement by smurfing the cash. And it’s long settled that criminal defense lawyer incomes suffered greatly because of this, as did the quality of drug dealer defense, which (along with the draconian sentencing guidelines) precipitated a mad rush to the United States Attorney’s office to cooperate. Ah, good times.

Bad as this scenario may be, for the good of the country and our revenue stream, not to mention legitimate cash payers whose funds would be seized for forfeiture within a few days of Form 8300 being filed to make sure they couldn’t defend themselves and get convicted, thus proving they were criminals after all and justifying the prior seizures, this is the world in which we operate. These rules may suck, but they’re the rules of our game. Play be them.

Criminal defense lawyers are peculiarly situated to be sucked into bad things. Whether we engage in them or suffer by mere proximity, the smell of the criminals around us tends to stay with us. If a prosecutor gets a whiff, they will take enormous pleasure in bringing us down. Without us, their job would be so much easier, and many find it impossible to believe that we serve a purpose other than enabling the downfall of society to the hands of criminals. Yes, we are very much the problem.

Stay clean. Stay extra clean. We may defend criminals (along with the occasional innocent), but we are not criminals. We cannot be criminals. We cannot come anywhere near being criminals unless we want to share a cell with them.

We are targets at all times. The other team may, intellectually, realize that we’re a necessary part of the system, and they may not hate us individually, but as a group, they despise us. They can’t help it, as we make their lives unhappy, especially if we do our job right. Few things make a prosecutor drool more than a dirty criminal defense lawyer. And by dirty, I mean bearing any whiff of wrongdoing.

It’s not easy. Temptation is around us all the time. Even things that are perfectly lawful, completely proper, can give rise of the appearance of involvement in a conspiracy. Our proper duties bear the faint odor of enabling, and our zealous representation reeks of it.

As Bobby says, few things will get us in trouble faster than messing with money, which really sucks since most of us need to make money to pay for stuff. You just can’t make it illegally. Remember what “Don’t Worry” Murray said. He knows.

The Crisis Is Now Official (And Wrong)

The American legal system is in crisis. I know because the first line of a New York Times editorial says so, and if it’s in the paper, it must be true.

American legal education is in crisis. The economic downturn has left many recent law graduates saddled with crushing student loans and bleak job prospects. The law schools have been targets of lawsuits by students and scrutiny from the United States Senate for alleged false advertising about potential jobs. Yet, at the same time, more and more Americans find that they cannot afford any kind of legal help.

It’s not a great scenario by any stretch of the imagination, but a crisis? The country’s economy remains in deep trouble as the price to be paid from living the unearned dream and profligate spending. Sure, law schools turn out more lawyers than the economy can absorb, and neither the ABA nor the schools themselves want to admit this or deal with it. We’ve known this for a while, yet neither law students nor their parents had the good sense to do the legwork of figuring out that one shouldn’t go to law school unless one really wanted to be a lawyer,

The claim of crisis, however, turns on the argument that Americans can’t afford legal help. That likely has something to do with the fact that they don’t have jobs, real earnings are in the toilet, we’re a litigious, over-regulated and over-criminalized society.

We could take all those underutilized lawyers and hook them up with the unrepresented litigants, except it wouldn’t do much to pay off their student loan debt or feed their babies, on the lawkids side, or provided competent representation, on the poor litigant side.

Some might see this as a crisis, and maybe it is. Certainly, the young lawyer with neither job nor expectation of one is having a crisis. Similarly, the poor litigant with neither competent representation nor ability to fend off his accuser is having a crisis. For that matter, we’re having a crisis in history majors in college. Philosophy too, unless they get credit for employment in the food service industry.

But law schools aren’t having a crisis. They’ve maintained their position of cash cow in the university structure. They are educational Robin Hoods, stealing from the rich to give to the poor. They have to, or the American promise, a nation where there are only corner offices, cannot be fulfilled.

Somehow, the NYT relates this crisis to Langdellian method.

Instead of a curriculum taught largely through professors’ grilling of students about appellate cases, some schools are offering more apprentice-style learning in legal clinics and more courses that train students for their multiple future roles as advocates and counselors, negotiators and deal-shapers, and problem-solvers.

While there’s much to discuss about the way to produce competent and client-safe lawyers, whoever drew the connections between this and the crisis hasn’t got the slightest clue about lawyers. From what I can tell, the theory is that if law school was less expensive and produced more competent new lawyers, the excess would be able to go forth in the world and make a living representing people who can’t afford legal services. Problem solved, right?

Well, no. Law students fight to get into school, and lose three years of their life, after four years of college, for the privilege of making it through a fairly rigorous course of study (regardless of whether that course of study does anything to really prepare them to eventually practice law). When they pop out the other side, some will chose to forego making big bucks to serve people in need, just as they always have. Others, however, want some remuneration greater than what they could have gotten as assistant manager at Dairy Queen, something they could have gotten without all this struggle.

The people who can’t afford legal services have one abiding quality. They don’t have money to spend on lawyers. This means that no matter how qualified the lawyers are, they aren’t going to make a good living representing them. Sure, if their student loans were smaller, they would be able to keep more or what they earned, but the differential doesn’t make a dent in the problem. The bulk of people who can’t afford legal services can’t afford to pay anything. Maybe they can give their lawyer a chicken, but that’s about it. They have their own children to feed, and they can barely do that. Plus, they need a new iPhone.

So the poor still won’t be able to pay lawyers, even cheap lawyers, because they’re poor. The new lawyers still won’t be able to survive, even if law school cost less, because they are being paid squat by poor people. Even if they come out of law school incredibly competent and skilled, they will still go hungry. And it makes no sense to go to law school, even if it was free, if you’ve going to end up earning the median income of an assistant manager at Dairy Queen. Just head straight for the Dairy Queen, and then we can have a Dairy Queen crisis.

The problems start at the top, with our litigious, over-regulated, over-criminalized society, creating a demand for lawyers by people who can’t afford a lawyer. If they had jobs and earned decent money, they would be better able to afford a lawyer. If politicians stopped manufacturing legal solutions for every oddball complaint, they could save their money because they wouldn’t have as great a need for legal representation as every facet of American life wouldn’t require counsel.

If the ABA shut down a third of the law schools, we wouldn’t be pushing out 15,000 more lawyers than our economy can absorb, and those who came out would have a place to go during the day. The displaced lawprofs would have to work for a living, but then they would gain the practical lawyering skills that would be demanded by law schools bent on using lawyers/scholars as professors rather than philosophers. Imagine law schools where experience was viewed as a positive rather than odious.

As for the cost of law school, it can be cut to near zero by charging liberal arts doctoral students what we now charge law students. Except they wouldn’t pay it, because law students get rich and they don’t?

If this is a crisis, and the New York Times says it is, then it’s one created by all the players, most of whom exist outside the profession and the academy. Sure, we’ve got plenty to do to put our house in order, and plenty of resistance to change. But our crisis came about in the context of problems created outside the law.

Fixing our internal problems won’t solve the crisis, and expecting the profession and academy to suffer the pain while the rest of society,

the ones who demand a new law every time a child dies,

the ones who refuse to work on the assembly line because they were promised a corner office in a society that doesn’t produce anything of value,

the ones who want lawyers to spend years in school but work for free,

the ones who demand free doctorates on the backs of law students,

the ones who see no problem sucking gazillions out of our economy to bomb and rebuild countries across the globe who want nothing to do with us,

the ones who demand law and order but refuse to pay taxes,

the ones who will pay any price in the name of safety,

the ones who want to micromanage every perceived societal ill,

the ones who want to get rich themselves but decry others as greedy,

the ones who expect to earn a paycheck but can’t understand why others want to earn a decent living commensurate with their education, effort and opportunity costs, as well,

goes about their lives as if this has nothing to do with them. So lawyers suck and we’re all a bunch of blood sucking leeches? Try running a society without us. Then you will have a crisis. For real.

We may argue amongst ourselves over the best way to produce the proper number of competent and honorable lawyers to serve the needs of this nation, but I’ll be damned if the rest of society can screw itself up and dump its problems on the backs of either lawyers or lawprofs. The “crisis” about which the New York Times opines stems from a badly screwed up nation, its economy, philosophy, work ethic, expectations and irrational demands.

It’s not up to lawyers to suffer for society’s sins. We’ll fix our problems. You fix yours.

Love You Like A Rock

The holiday season brings back memories of one of my more enduring experiences with a client many years ago who sent me a very unpleasant letter. He accused me of everything from incompetence to misanthropy because I failed to visit him in the slammer between Thanksgiving and Christmas.

I thought you loved me like your own son, and yet you didn’t even bother to visit me.

I’ve had many clients with whom relationships have grown. We’ve become friends, outside of my relationship as lawyer. But when I wore my lawyer hat, I was their lawyer. All the way.

There are some lawyers who drip with emotion over their clients, whether expressing some odd adoration or sharing in the melodrama of their misery. They claim an emotional connection more appropriate for lovers than lawyers. Sometimes, it’s as if they do love them like the defendant is their own son.

This is a disservice. This is a mistake. While the client may believe that’s what he wants of you, and may, at least during the course of representation, deeply appreciate the bond that develops, you do not serve him well by becoming his father or mother.

I responded to my client’s letter by telling him that I am not his father. I am his lawyer. I do not love him, but I represent him. I will not cry regardless of the outcome, but I will do everything within the bounds of the law to achieve the outcome he wants. And because I am not his father, because I do not love him, because I will not cry over him, my eyes will remain clear to see my duty, my responsibility, my opportunity, unclouded by emotion or tears.

As for the visit, I go to jail to meet with a client when there is a reason for me to do so as his lawyer. I expect his family to go regularly, frequently, to hold his hand and to keep him abreast of things that interest him, but my job is not babysitter or hand-holder. I include in my retainers a provision that if a client wants me to visit him in jail when there is no need for a visit for the purpose of my representation, there will be an additional fee. Rarely does any client want to pay the additional fee, and so rarely do they ask for an extra visit.

Is this cold? Is this heartless? Well, yes, to some extent it is. It’s also what is demanded of us as lawyers. Cold, heartless representation. Warm and fuzzy is better provided by a puppy, but our work has very real consequences. When our decisions, our will to act, is guided by emotional concerns rather than cold, heartless reason, we lose our detachment and allow our feelings to influence our choices. That’s self-indulgent.

Clients do not come to us because they want to retain a new best friend. That they don’t understand this isn’t the point; for the most part, if they thought a bit harder, they wouldn’t need us at all. But they do because they are in trouble, desperate straits, and we are the unpleasant profession to which they turn to save their sorry butts.

I remember working a case years ago with David Lewis, a big bear of a guy with great wit and a winning smile. The defendant asked David to win the case for him. David bared his teeth, and went from teddy to polar, looking remarkably unattractive and inordinately threatening. He told the client, “I will win your case, but for me, not you. I’ll win because that’s what I want to do for my reputation, because I have the need to win. I would win it whether you were the defendant or anybody else. I’m not your friend. I’m your lawyer.”

It’s not that it would kill you (or me) to pay a visit to the jail to see a detained client during the holiday season. If you have the time, it would be quite a thoughtful thing to do. There is nothing about serving your clients that preclude being civil and accommodating, engaging in the normal courtesies that humans typically extend to each other. But this isn’t to confuse what our obligation is toward our clients, to be capable of turning cold and heartless when our duty demands it.

Now that Black Friday is behind us, and as we move forward toward Christmas, the season of goodwill toward men (and women, and dogs, and whatever), your clients will wonder whether you love them enough, whether they are like a son (or daughter, or pet, or whatever) to you. And you will want to show them you do. We’re still human, and of the particular subset inclined to defend human beings accused of crimes. We’re wired to care or we couldn’t do this job.

And in this age of desperation, where getting the business drives us more than winning the cases, appealing to the things that make client’s love us in return seems such a natural way to run our practices. Isn’t the magic bullet that people do business with people they like, and so making them like us is the overarching concern for lawyers who want to earn enough to put sweet gifts under the tree for their actual children?

There are many lawyers who are exceptionally nice, likeable and caring toward their clients. There are lawyers who will do everything within their power to represent their clients zealously, with cold, heartless detachment. There are very, very few who can claim both attributes. There are no lawyers who love their clients and can still do their job well.

After you win the case, you can love them all you want. Until you win their case, you are their lawyer, first and last. Don’t let the season cloud your eyes as to why they come to you or what they truly need of you. Give them the gift of excellent representation. Others can give them love.