Category Archives: Cross

Category for crosses, to make them easier to separate out from other posts.

Cross: Chris Seaton: An Angry Good Ol’ Boy

Dec. 2, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Fault Lines contributor Chris Seaton, who practices criminal and family law at Quest Collaborative Law in Knoxville, Tennessee.

Q. You’re still in the baby lawyer phrase of life, and you’re one of those relatively new lawyers who came of age during one of the most trying times to enter the profession, entering Appalachian law school in 2007.  Did you realize what you had gotten yourself into?  What made you decide to be a lawyer? What did you think when you learned that the future for lawyers just plopped into the toilet? Did it matter to you? Did you adjust your plans or did you just plow ahead?

A. I can assure you that I had no fucking clue about what I’d gotten myself into when I decided to uproot myself from Kingsport, Tennessee and head to a coal town in Southwestern Virginia to learn law.  Hell, I’d hated lawyers for most of my life since my first stepdad was a lawyer who thought it fun to beat on me and my mother, get stinking drunk, and urinate on couches in the living room.  Going into law was a means to actually make a difference and do things that I thought I’d always been good at: reading, writing, speaking, thinking on my feet and bullshitting whenever I needed to.

I was floundering on a year to year contract working the family Workers’ Comp business for what was called BWXT Y-12 at the time I made the jump to law school.  It was utterly mind-numbing work heading to a nuclear weapons facility each day to hand people who got injured or sick a series of papers that gave them free medicine and a doctor’s visit.  Having lunch with my mom and my boss one day just made me decide to say “screw it,” take the LSAT, apply for law school, and see what I could do.  At the least, it would beat taking phone calls from retirees asking about getting free hearing aids and pain pills.

Funny thing is that when I got into law school and actually started learning the law, I became addicted to it.  I’d managed to coast through undergrad and never really had to work at anything, so it was a shock when I didn’t do so well on my first law school final.  But when I got something, and I mean really understood it, I wanted more.  Every single case I understood, every concept, every principle, I had to have more of it.  It ended up costing me my first marriage, but I didn’t care.  Sitting in that quiet little coal town in Virginia gave me a passion that I never knew I could have for something.

By the time I got out in 2010, I was quite aware that the wonderful law degree just handed me wasn’t the license to print money many people thought it was.  I’d also contracted a degenerative eye disease, called Ocular Myasthenia Gravis, and had a damn good idea that I wasn’t going to land a six figure job at a major law firm.  Fortunately for me, I am a stubborn son of a bitch, and have a tendency to try and figure out ways to make what I want to see happen work.  So no, it didn’t really matter to me that the law school bubble had burst.  I didn’t give a damn.  I went to work.

Q. By the time you graduated, jobs were awfully hard to find, and, let’s face it, you didn’t come out of Harvard.  How was it trying to find a home? You started your own practice, Quest Conflict Resolution. Was that by choice or was that the only avenue available to you?

A. I had an office available to me that I literally lived out of for two years, so it wasn’t hard finding a home.  It was a double-wide trailer on West Irish Street in my home town of Greeneville, Tennessee that my parents owned, about twenty feet from train tracks and right across the street from a toothless old man who made illegal moonshine and his son who had a fondness for cock fighting.  The front of the trailer was my office; I had a keypad toward the back of the space where I met clients that led to the bedroom, kitchen, and living room.  I joked for a long time that I literally “lived my work.”  I had no idea at the time what that truly meant.  Five years later, the definition of “living your work” has evolved dramatically.

Starting my own practice was a matter of necessity and choice.  I really wanted to work for the guy I had clerked with for two years, John T. Milburn Rogers, as he was a hell of a trial lawyer who showed me what law was really like and gave me some great memories in the process.  Hiring me as an associate just didn’t really work out financially, and I have developed over the years a really bad habit of not playing nice with others, so I started Quest.

Q. And as long as we’re talking about Quest Conflict Resolution, what exactly was that?  You were doing family law matters, divorce, custody, using the mediation model. Did you know what you were doing? You were still raw, and this is one of the nastiest, bitterest areas of law to practice. Were you able to pull it off?

A. Quest Conflict Resolution was the evolution of the business I started while I was waiting on my Bar exam results.  I had a wonderful mentor, a professor named Paula Young who taught me how to mediate and gave me the chops to where I had my Rule 31 Civil listing as a mediator in Tennessee before I graduated law school and my Rule 31 Family listing before I passed the bar.  When I came back to Greeneville, I hung a shingle on the trailer and it read “Quest Mediation.”  When I was admitted to practice law it became “Quest Conflict Resolution.”

The name change was a reflection that I now had two different play books with which to serve clients, and it was chosen with the understanding that I lived and worked in an area full of hill people.  Hill people are an interesting bunch in that they hate lawyers.  They’re extremely mistrustful of the legal system and think everyone with a badge is out to get them.  I wanted to make sure that someone who came to me knew they could relax and trust I would do my damnedest to help them using every trick in the book.

Mediation in family law matters was a hellacious trick to pull off as a baby lawyer, since most people think you have to have a ton of experience in the law to mediate a family matter.  A lot of lawyers think that mediation is where you take your experience in a given field, walk into a room with two people and their attorneys, and say “This is what this judge is going to do if you take (x) issues to trial, so it’s better you figure out a way to settle this case here” and then work from there.  That’s complete and utter bullshit.  It’s called “alternative dispute resolution” for a reason.  You give people the chance to figure out their own ways to settle matters outside a court and they’ll actually do it.  I was able to pull it off, even getting called to do some cases that involved specialized cultural knowledge (one couple who immigrated from Liberia and got a divorce in America stands out quite heavily).

Quest wasn’t just mediation though.  It was where I litigated, too.  Shoot, the first case I tried literally came three days after I was sworn in by a circuit judge who saw me grow up in middle and high school.  To make matters even more interesting, the Magistrate in front of whom I tried said case was my mother’s attorney for many years!

I wanted to try cases, so I got on the criminal and juvenile court appointed lists in town and started trolling for cases every chance I got.  Some days I would go to the courthouse and sit in a business suit and sneakers with a book from my law school days and a legal pad and just doodle or write stuff.  The days that I didn’t get a case appointed to me I still had quite a bit of fun talking shop with other attorneys, clerks, judges and cops.

Q. In 2013, you got a job as an associate at Holland Law, where you got your teeth into your first real criminal cases. What made you turn away from family law and move into criminal law? What made you close up your own shop and go to work for someone else?  Aside from getting a paycheck, what was the difference between taking orders and running your own practice?

A. I was still doing family while at Holland.  In fact, I didn’t get a chance to do a criminal case until a friend of the boss’s got into trouble.  After that and the way I handled it, the boss decided it was worth giving criminal a shot.  I also didn’t get a paycheck while I was there.  It was essentially an office sharing agreement I had with the boss, where I would give her a percentage of what I brought in for the privilege of having an office, an assistant, and a paralegal.  In fact, during the nine months I was there, I made the least amount of money I’ve ever made in my professional career.

I closed up shop and went to work for someone else in a town with over three thousand lawyers and two law schools, and pumping more out each month, because in 2011 I met whom I am now privileged to call Mrs. S., a veterinarian with the compassion to put up with my jackassery and still think it wise to give me two wonderful children.  At the time we got married, a decision had to be made: she would have to give up her veterinarian job in Knoxville and come find a job in Greeneville or I could go raise hell in the big city.  I have a very loud mouth and a Stone Cold Steve Austin sized penchant for raising hell, so I chose to come to Knoxville.

I was lucky enough to find a person to practice with that could teach me a few things here and there, and did give me pointers that I’ve incorporated into Quest Collaborative Law since.  To answer your question though, the biggest difference between taking orders and running your own practice was the realization that (1) the boss’ matters were what mattered most, and (2) when the shit hit the fan, the only questions you asked were clarifying ones on how to get what needed to be done done right away.  

Q. You didn’t stick around Holland Law very long, leaving after nine months? What happened?  Some people find it very hard to go from being their own boss to working for someone else, particularly when you’re low on the totem pole. Was that the problem?

A. The answer I’ve told everybody for ages now has been the diplomatic “creative differences.” But this is Scott Greenfield’s Cross at Fault Lines, and that shallow answer will not satisfy you, so for the first time I will come clean and explain why I left.  During those nine months, my wife gave birth to my now two-year-old daughter, Talia.  The day I became a dad changed my life and the way I saw everything about the world.  I was also completely unprepared for the lack of sleep that came with the first few months of being a new father and had no fucking clue as to what I was doing.  The pregnancy was difficult, and I took about two weeks off to make sure my wife was OK and that my kid was actually going to live.  After I came back to work, the boss and I had several talks that made one thing very clear: I could either choose a career at the firm or having a kid.  I didn’t get both.

After that, I politely packed my shit, told the boss I was done, left, and never came back.  Consider that bridge officially burned, I guess.  I’ve tried to send my old boss and her boyfriend business on numerous occasions and they both act like I don’t exist.  Leaving that place, in retrospect, was one of the best decisions I’ve ever made in my life.

Q. After Holland Law, you hung your own shingle again, this time under the name Quest Collaborative Law, doing both family and criminal.  But you also worked with entertainment folks.  Was this a matter of doing whatever came in the door, or was there a conscious effort on your part to figure out where you really wanted to be?  Did you find it a problem trying to cover too many bases?

A. Hell, I’m still trying to figure out where I want to be.  Covering too many bases is a problem that I’ve had for a while, and something that still bites me in the ass on occasion.  The entertainment thing came out of sheer dumb luck and my willingness to talk to and be nice to just about anybody. A friend in D.C. had an issue where someone tried to use his name and reputation to sell clothes for a competing clothing line, so I handled it.  That guy ended up becoming best man at my wedding to Mrs. S.

A lot of my work in entertainment has come with stand up comics.  Knoxville has an incredible independent comedy scene, and one where newbies are welcomed to open mics on a regular basis.  One night I checked off a bucket list item and went to an open mic, signed up at the venue as “The Bitter Lawyer” because I was afraid of bombing, and performed five minutes of stand up comedy I’d written that day.  I actually got a few laughs, and went back to another mic.  Eventually, I made friends with most of the stand up comics in the area and they started asking me to do work for them!

I still do the occasional stand-up bit.  I have a recurring spot on a radio show here in Knoxville that sort of serves as free advertising.  People have told me working in stand-up has actually improved the way I represent clients, too.  One case I worked with co-counsel recently saw us talking shop after a hearing.  She asked me “What happened to you?”

I was dumbfounded by the question.  “What do you mean by that?” I asked her.

She said “When you started practicing, your questions were long and winding, your closings were homespun narrative speeches, and you would go into the occasional rant.  Now when you ask questions, your punches are short, brutal, and to the vital spots of the person on the stand.  And your openings and closings actually make a point.”

Only excuse I have is hanging out with stand-up comics a lot and doing work for them will make you get to a point really damn quick.

The entertainment stuff has been awesome.  I’ve worked with writers, people on American Ninja Warrior, TV chefs, stand up comics, and professional wrestling promoters. It’s let me host comedy shows, be a professional wrestling manager, and given me the opportunity to meet one of my biggest public speaking influences ( legendary pro wrestling manager Jim Cornette) while my son was languishing in a NICU unit.  I’ve gotten to meet so many amazing people and help them at really rough times.  Family and criminal law are still my bread and butter though, and the majority of my practice revolves around that.

Q. So your cross was a long and winding road, that went nowhere on summation?  What was it about the comedians that taught you how to get to the point, make the point and get out before someone started throwing rotten tomatoes? Do you now look back at your early trials and wonder, did I really suck that bad?

Successful joke writing requires you take a nugget of thought and then strip it to its rawest form of truth that will garner a desired reaction from your audience.  Applying that to the practice of law, it means you take the point you want to make, strip it to the rawest form of the truth you need to convey, and hope you get the desired reaction.
The most successful comedians with my favorite comedy albums and specials work around a theme.  At the very least, the go-to, killer joke is at the point when the light comes on.  That light tells you you’ve got precious seconds to leave the audience with one final salient bit to remember you by.  That’s how I start trial prep now: by beginning with the final go-home point I want to leave the trier of fact with and then working out the rawest forms of the ideas I want to convey through questioning and evidence that back said point.
You’ve also got to know the room.  Different crowds react to different bits, and different triers of fact will react to different tactics.  What works for one room may not for another, and if you find yourself bombing in either a mic or a courtroom you’ve got to reassess the situation and rebound accordingly.
Do I look back and wonder how I sucked so bad at my early trials?  Absolutely.  I look back at every case I try or negotiate with the most critical eyes possible after it’s over and try to find where i could have done better.  If you want to get better, it’s a duty incumbent on you to try and evolve after every case.  Staying stagnant and relaxing on the same tired tactics and talking points doesn’t make you a better attorney, and it doesn’t serve your client well.  If you’re not working constantly to be better at what you do, what’s the point?

Q. Of the various practice areas you’ve done, it seems that criminal law is the one that really seems to have stuck with you. What made you decide to go to the dark side?  One of the biggest issues with new criminal lawyers is that there is a steep learning curve between the time you start practicing and the time you have a firm grasp of what it takes to serve your clients. How is that going?  Where do you think you are on that curve? What pieces of the learning process have proven most difficult?

A. Criminal law is definitely a thing for me, and what made it “stick” was seeing how “good ol’ boy” law was practiced at the start of my career.  I got a really good look during my formative years at the ways even local Sheriff’s deputies treated people suspected of crimes and it made me sick.  I saw the way people were wrung through the system and told it was better to plead than actually fight a case to the core.  Watching three young girls get tossed on the hood of a cop car after a pot buy, roughed up by male DTF (drug task force) officers, and cussed at was a big breaking point for me.

Going to Knoxville was an entirely different experience from Greene County.  You speak of a learning curve.  I learned really quickly that curve turns in a completely different direction when one goes from “good ol’ boy” law to a big city where people actually try cases by the boatload, the prosecutors are absolute sharks, and the judges expect everyone to follow the law to the letter instead of each case getting tried on a “who does this guy know” basis.  Plus, I jumped from having to learn the habits and mores of five prosecutors to fifteen and keeping book on the quibbles of three criminal judges instead of one.

I still think I’m sitting on the “learning what it takes to serve your clients” edge of the curve.  Probably toward the lower end of it, if I’m being completely honest with you.  I don’t think I’ll ever learn all of it, and I never will.  That just comes from a mentality that I keep of knowing that I know a hell of a lot less than I think I do each day, and that every day is a new chance for a learning experience.

What’s the most difficult portions of the learning experience?  Aside from learning what arguments will work with different judges and prosecutors, I’d probably say learning what cases need to go to trial and what probably needs to be pled out.  A corollary to that would be getting the client to understand they might actually have a chance of winning something they think is a lost cause.  It’s a sad point to discuss, but a very real one: it’s tougher to convince a black man to fight a charge than a white one because most honestly think they’ll never get a fair shake simply because he is a black man.

Q. Criminal defense lawyers are, first and foremost, trial lawyers. How many trials have you done, and what types of cases?  Most of us learn a harsh lesson at our first trial, and we learn it good and hard when we realize that the demands of a good trial lawyer take time to learn. How did your first trial go? Any major screw-ups? When you walked out of the courthouse after your first verdict, what did you say to yourself?

A. I’ve lost count of how many trials I’ve done in five years for two reasons: one is a severe lack of sleep due to two children under three in my house, and the other is because I’m stubborn and get an adrenaline rush from trying cases.  I’ve worked DUIs, drug possession and sale cases, one rape case (which is interesting given I was sexually assaulted at gunpoint in undergrad), theft matters, weapons charges, and lots of delinquency and what we call D&N (Dependency and Neglect) cases.

My harsh lesson at my first trial was telling my client to stipulate to a D&N after we torched the State’s case on a cross examination.  The kid had been removed from Mom’s home and placed in an environment which was absolutely toxic to the child’s health and well being.  I destroyed the DCS caseworker and psychologist they put on as witnesses to the point where one keyed my car after the hearing.  I’m sure of it.

We took a break during the hearing and the Guardian ad Litem told the State’s attorney “Based on Seaton’s crosses I’m going to declare an improper placement and ask the kid be removed from the home and placed with the mom unless you two come up with an agreement.  Do it before we get back in the courtroom or else you’re going to get embarrassed.”  The State offered my client visitation with her kid, which is what she wanted desperately after having her child snatched by DCS workers.  She took the stipulation.  The case ran on for a year, and eventually the system wore my client to a nub.  She surrendered her child for adoption, and it’s a mistake that I’ve sworn never to repeat.

After that first verdict, I was full of piss and vinegar and ready to call myself “Best In The World.”  I was glad that I managed to get something for the client in the face of the overwhelming resources of the Volunteer State.  Now I realize I fucked up big in agreeing to even settle a single matter with DCS, and I’ve done my damnedest to make sure that clients get all they need and then some if I can help it.

Q. Before you came to Fault Lines, you were an aficionado of the blawgosphere.  These were a pretty tough bunch of lawyers, with a tendency to be a bit critical at times. What did you think you were getting into when you decided that you wanted to write for Fault Lines? Was it what you expected it to be? Do you feel a pressure to make sure you don’t make people stupider when you write?  Are you glad you took the leap, or was this a huge mistake? Do you sweat every time you submit a post for publication, hoping that someone doesn’t tell you that your post was the dumbest thing they’ve ever read?

A. I don’t think “aficionado” is the right word.  “Rampant fanboy” might be closer.  I was afraid to comment at first on several blawgs, and actually used the pseudonym “Kerwin White” to comment on stuff. One of the first times I actually commented on something as “Kerwin White” was a post you made about the Riley and Wurie SCOTUS cases, and that was when I got my first good SHG smackdown!

When I auditioned for Fault Lines, I thought I was getting a chance to write with some of the best, and if I didn’t make it, then screw it–I had a lot of other stuff to do.  Basically, writing is something I’ve done all my life as a release, and if I got the chance to write for Fault Lines then I had the chance to get better at something I loved than I’ve ever been in my life.  That was exactly what I expected it to be, and you of all people have made no bones about telling me when things I wrote were absolute shit.  Working to bring issues to the public’s eye every Monday and Thursday (and sometimes more depending on what I read that pisses me off) and having everyone on the FL crew kick my ass repeatedly has definitely made me a better writer.

I wish Ken Womble and Jeff Gamso would stop stealing my damn heat, though.  I think I write something that will be noteworthy, and then those two blow me out of the water.

Do I feel a pressure to make sure people aren’t stupider when I write?  Absolutely.  One of the biggest sins of the Internet age is that every asshole with a voice and an agenda has the ability to post it somewhere for people to see.  The worst part is when 99% of them talk about the law, none of them have a damn clue about what they’re talking.  And when you use a platform like Medium, Vox, HuffPo, or otherwise to make someone dumber, you’re committing a cardinal sin.  Especially when it’s about the law.

I’m glad I took the leap. I’ve gotten the chance to expose issues to the public that people never would have seen otherwise.  Children getting beaten in schools by cops there to ostensibly protect them.  Registries created to cost people jobs and careers when they’ve never even been convicted of crimes.  Cops breaking an NBA player’s leg just because he stopped to give a homeless man a $20 bill!  Every single time I submit a post, I know that I’m doing something to expose a portion of the ugly side of our justice system the public needs to see badly.

And as far as sweating posts, that would be a qualified “no.”  Someone telling me that what I wrote was the dumbest thing they’ve ever read has absolutely no effect on me.  I’ve been called “the knife faced bastard child of a lawyer and Smeagol” by a comedian on the radio, for crying out loud!  Now if it’s my editor telling me that I fucked something up, then I’ll sweat it, but that’s because I took this gig to get as good as I could be at writing, and I have an obsessive desire to keep getting better.

Q. One of my earliest admonitions to you was to write about things that pissed you off. And since then, you’ve found no shortage of things that piss you off.  How has this affected your view of the law? Has this made you a better lawyer? Do you have a different appreciation of what your duty is to your clients and what it means to be a lawyer?

A. I think I told you once that my formula for writing stuff at Fault Lines was “I read a thing.  I get mad because it’s bullshit.  I write a thing.”  And it’s sad that the criminal justice system continues to give me no shortage of things to piss me off.  However, I think it has made me a better lawyer and given me a different appreciation of what it means to be a lawyer and my duty to clients.

I think it’s made me a better lawyer because I can get all my anger out at FL and then work from a place of zero emotion (unless I need it) in the courtroom.  Anger serves no advocate, and if you’re pissed about something outside your case then you’re not going to do well by your client.  As far as gaining appreciation of what it means to be a lawyer and understanding better the duties to my clients, I get to read FL every day, interact with folks like Ken Womble, Greg Prickett, Jeff Gamso, Ken White, Andrew Fleischman, yourself, and even a Federal Judge!  And that’s just scratching the surface!  If you have that opportunity and you don’t learn something from it then you’ve got to be absolutely brain dead or in an echo chamber.

Cross: Jeffrey Gamso, Fighting To The Death

Nov. 25, 2015 (Mimesis Law) — Ed. Note:  Scott Greenfield crosses Fault Lines contributor, Jeff Gamso, former legal director for the Ohio ACLU, past president of the Ohio Association of Criminal Defense Lawyers and current assistant at the Cuyahoga County Public Defenders.

Q. You came late to the party of being a criminal defense lawyer, following a dalliance as a college professor in English. This may come as a shock to your many fans, given that your writing style makes both Strunk and White cry. What pushed you to teach English? More importantly, what do you know about writing style that the rest of us leaden lawyers are missing? What do you know about the use of written communication that the rest of us have yet to discover?

A. I love Strunk & White. I keep a copy near at hand. It’s a delight. It’s also a nearly worthless guide to good writing. But it has a few great pieces of advice (mostly Strunk’s by the way; I’m not sure White added anything much of value other than a few fun examples and a certain felicity in his own prose, less purely workmanlike than his mentor’s).

Strunk told us to “omit needless words,” though it’s not much use at identifying which words are actually unnecessary, and since (according to White), he would say it three times running, it was a rule he took in a singularly odd way. Strunk also said, “If you don’t know how to pronounce a word, say it loud!” (That, too, thrice according to White.) As a guide to good prose the first is solid advice though worthless in practice. The second is horrible advice for good writing, but points to one of the (unfortunately) valuable tools of persuasion. If you sound like you know what you’re talking about, people will believe you.

As a guide to good writing, the rules Twain offered in his great essay, “Fenimore Cooper’s Literary Offenses” are about as good as it gets. (Strunk and White say many of the same things, but less simply and far less clearly). An author should, Twain said at the end of his list – these without elaboration:

12. _Say_ what he is proposing to say, not merely come near it.

13. Use the right word, not its second cousin.

14. Eschew surplusage.

15. Not omit necessary details.

16. Avoid slovenliness of form.

17. Use good grammar.

18. Employ a simple, straightforward style.

You’ll notice that I have so far ducked the question. I went to graduate school because that’s what one does after college. I went into English because I loved reading and writing and bullshitting about books. Turned out I was a pretty good teacher, and I liked pontificating.

One of the things I learned during the years I spent teaching, specifically from grading papers, is just how much I hated reading bad prose. I’m not talking about the stuff that’s filled with misspellings or problems with subject-verb agreement or sentence fragments or run-on sentences or the ones with the occasional awkward phrase. Those were annoying but it was at least clear what was wrong.

The papers that would alternately put me to sleep or make me wish to throw against a wall were the ones where the awful prose masqueraded as fine writing. The ones where whom was routinely used and who never because of a false belief that who is an aberration of the uneducated and where (I’m quoting White here) “the twenty- dollar word [is used] when there is a ten-center handy.” Especially when the expensive word is really Twain’s rejected “second cousin.”

The obvious lesson is that good writing should be simple and clear. It should read the way a conversation between ordinary people would sound if you cleaned it up a bit; took out the fillers, stammers, and the like; ensured some level of organization so that one idea led to the next, and made at least a minimal effort to obey the rules of standard English grammar and usage. Conversation revised and edited, but conversation.

Except, of course, when you’ve a reason for rejecting all that shit. As Orwell said, “Break any of these rules sooner than say anything outright barbarous.”

But the more important lesson is that if you want to sway your reader you have to keep her awake and reading. Judges (or their law clerks) have enormous stacks of paper to slog through. Keeping the judge (or clerk) awake and interested may not be sufficient to win the point, but it’s pretty much necessary. (Enter plug here for Matthew Butterick’s Typography for Lawyers.)

We are, after all, storytellers. Start with “Once upon a time” or “Arma virumque cano” or “Who’s there?” or “Call me Ishmael” or “It was an incandescent night in Times Square, all manner of humanity engaged in vintage decadence.” Then see what happens.

Q. Not to beat the horse to death, but you also possess an exceptional knowledge of literature, which rears its ugly head from time to time in your writing with your use of quotations that express an idea in ways that awe the rest of us. Has this knowledge given you an advantage as a lawyer in making your point?  Is the lack of a broad liberal arts education a handicap for some lawyers, limiting both their ability to think deeply and express complex ideas through the voice of some of the most brilliant words available?  For those of us who can’t approach your depth of knowledge of literature, is there any hope for us?

A. What? Me? Quote stuff? OK, I did in the answer to your first question quote not only S & W but also Mark Twain, George Orwell, Virgil, Shakespeare, Melville, and Don DeLillo. And I threw in an allusion to a line generally attributed to Dorothy Parker (though nobody seems able actually to find it in her work). ‘Course I was kinda showing off. (And points to anyone who can identify the sources of both the Shakespeare and DeLillo quotes without Google.)

Ah, the study of language and literature, history and philosophy, those things have taught me much and made me a better lawyer. Study rhetoric and you learn about persuasion. Study philosophy and learn about justice (whatever the hell that is). Study drama and theater and get a feel for commanding an audience and holding a stage, which is what we strive to do whenever we enter a courtroom – trial or appellate. Study music and poetry to internalize cadence. Study literature and feel the power of spoken and written language. Study all of that and more to learn about the human heart.

So yeah, you should all read more. I am a great believer in the value of the liberal arts. I can’t quite advocate a program of nothing but the trivium and quadrivium (and why geometry, anyhow?) but there’s something to be said for its rigor. On the other hand, I should know something about economics and business, and I don’t.

Q. Eventually, you decided to hang up your tweed jacket with the leather elbow patches (did you actually have a tweed jacket?) to go back to school for law.  What the hell were you thinking?  You gave up a career to not only start fresh, but to leave behind the sanitary world of academia for the nasty trenches of the law. What pushed you to do such a crazy thing?  Was there any particular incident or thing that made you realize that law was where you wanted to be, or did you just feel some need to do rather than teach?

A. No tweed. I’m not quite that stodgy. My jackets were corduroy. I loved teaching, but the academic job market is/was . . . . I never had a tenure-track job and wasn’t going to get one. That was circumstance as much as anything, but it was also real. My wife and I were meeting with a friend, a lawyer, who was giving us wills as a baby present. She said “You ought to go to law school.” It stuck. I took the LSAT, did well enough, and went as an experiment. If I hated it, I’d quit. I didn’t hate it. I owe Dannie my career.

It did take years, though, before I was comfortable enough with the career change so that when people would ask what I did I wouldn’t begin the answer by saying, “I used to teach English.” In time, I discovered that I not only liked what I did but was proud of it. And I learned that I was a criminal defense lawyer. Not as a job but as a person. “To my toenails,” as I sometimes put it.

And, not entirely by the way, I still teach for a living. I teach judges and juries every day. I used to teach novels and poems and plays. Now it’s non-fiction. It’s still stories.

Q. You’ve been involved with the ACLU since 1984, and in 2004, were named the Ohio ACLU’s legal director.  Many on the criminal defense have a love/hate relationship with the ACLU.  Much as it has done some spectacular litigation in support of constitutional rights, including some very controversial cases such as the Skokie free speech case, it has also made choices that traded off one right against another based upon what might dubiously be characterized as its political preference.  Did you have any trepidation about joining as legal director?  Were you on board with the ACLU all the way, or did you have some doubts about its choices from time to time?  Was there any position taken by the ACLU that you think was either wrong or crazy?  Was there ever a time when you said to yourself, maybe this isn’t the right place for you?

A. Before I was Legal Director, I was on the Board for 15 years. At one Board meeting, and in a context I don’t recall, the president said of the Board, “There’s nothing we can’t argue about.” One Board member jumped up and shouted, “That’s not true.”

Yeah, I have some disagreements with ACLU positions. I imagine nobody in the ACLU agrees with everything it says or does. Hell, the ACLU itself can’t always decide what it thinks. After the first Rodney King verdict, the ACLU briefly dumped its opposition to the separate sovereignties exception to double jeopardy so that the cops could be federally prosecuted. Wiser heads prevailed in time. But it wasn’t a noble time. (Nor was it in the 50s when they threw the communists off the national Board.)

Many affiliates, particularly in the western states, would like the ACLU to say something substantive in favor of Second Amendment rights. Much, probably most, of both the membership and the national Board favors strict gun control. Officially, the ACLU has almost nothing to say on the subject. I’m a free speech absolutist. So, traditionally, has been the Ohio affiliate. Nationally, not so much in recent decades.

The ACLU generally supports civil rights, seeing equality as a civil liberty. But there can be tensions in dealing with, say, hate speech. The ACLU’s wishy-washy position has been an ideological problem for me, but I never actually had to deal with the conflict. And ACLU is nowhere near strong enough in its denunciation of revenge porn laws as unconstitutional. Sigh.

Of course, every affiliate and Legal Director has favorite issues. We focused more on criminal law related issues during my tenure than during that of my predecessor. And while there’s a battle sometimes between an open courtroom/free press and the right to a fair trial, it never came up while I was Legal Director. Since then, I’ve advised lawyers on how to argue against the ACLU on that issue. The ACLU wins it every time.

My real problem with the ACLU – I hate civil litigation.

Q. As legal director of the Ohio ACLU, what role did you play in determining the allocation of scarce resources?  It would seem that there would be quite a bit of internal controversy of whether to take one side or another in a dispute, or whether to get involved at all. How much of a vote did you have?  What forces drove you to say, this is something we need to get involved with?  What about the internal fighting over whether to become embroiled in a fight, and what position to take?  Did you ever think afterward that you made a mistake and should have kept your nose out of a controversy?

A. I’d been on the Board for 15 years before I became Legal Director. The Executive Director and I were and are friends. I knew that we all were pretty much agreed on what we thought was important and what we wanted to pass on. Along with the General Counsel and the Board, we’d sometimes debate the merits of taking something on, but the debates weren’t contentious. I can think of only one time I wanted to do something and the Board said no. In hindsight, the Board was right.

I didn’t have to go after the job. I chose to, knowing pretty much what I was getting into. I did think that after years of doing nothing but criminal defense I would no longer hate civil work. I was wrong. Still, on balance it was a great gig that I enjoyed immensely and learned a lot from. And afterwards I was energized to return full-time to defending the accused.

Q. After leaving the ACLU in 2009, you started a firm, Gamso, Helmick & Hoolahan. This was a pretty high-powered criminal defense firm, with your partner, Jeffrey Helmick, getting the nod a few years later as a District Court judge for the Northern District of Ohio.  No small feat for a criminal defense lawyer, I might add.  What made you decide that a private law firm was the way to go after dedicating your efforts to cause lawyering?  While criminal defense may have some of the aspects of working for the ACLU, it also has some business pieces that couldn’t be pleasant for a lawyer who wanted to spend his time saving lives. What drove you to private practice?  Did you find it to be right for you, or did you make a mistake?  And what type of businessman did you turn out to be?

A. I’d been in private practice for years when I left for the ACLU job. In fact, it was Gamso, Helmick and Hoolahan before, then it became Helmick and Hoolahan, then GH&H again. Actually, it was Helmick, Prajsner and Hoolahan when I first rented space in that office. A while after Mark Prajsner’s untimely death, H & H invited me to go in with them.

As I keep saying here, the ACLU gig was great. But the logistics of my life made it time for me to resign. And I was eager to get back to criminal defense where I always felt more comfortable than doing civil work. It was an amicable parting. I still do some volunteer consulting, speaking, and brief writing the ACLU. And they’re amicus in one of my cases. We’re family.

The business part of private practice? As you know, I’m a public defender these days. Had there been a regular, full-time PD office in Toledo, I’d probably have been one years ago. No need to chase down fees and now I let someone else meet the monthly overhead.

Q. Your criminal defense practice included some of the most brutal representation there is, death penalty cases.  How did you get into that? Some see it as a challenge. Some as a duty. But it can also be the most painful, miserable representation possible. What made you take on the burden of other people’s life or death?  Death penalty defendants can be among the worst of the worst, which means that you, as lawyer, need to steel yourself to the things with which a client has been accused. Were there times you just couldn’t bear sitting in the same room as a defendant? Did you ever walk out of jail saying you just couldn’t do this one?

A. I started working on capital cases in Texas while I was in law school. It’s the most interesting and challenging work around, and the community of capital defense lawyers is welcoming, comforting, supportive, and always ready to help. Of course, many of the clients have done (and sometimes been falsely accused of doing) truly horrific things (which is true of many clients of most people who do serious criminal defense), they’re not monsters. Sure you steel yourself. But you also learn their humanity. As Helen Prejean says, we’re all better than the worst thing we’ve done.

Here’s what we know about the work. If you try enough capital cases, sooner or later you’ll represent someone who gets sentenced to death. If you represent enough people who have been sentenced to die, sooner or later one will be executed. Maybe on your watch. I’ve never put anyone on the row, but while I’ve had post-trial wins, there are also those I’ve not managed to save. I’ve represented, at some point in post-trial process, 7 who were ultimately executed. Twice I was counsel at the end, once in the main litigation and once in a collateral challenge.

Yet I keep coming back.

Q. Your experience with death cases has been a huge source of your writing, both on your personal blog as well as Fault Lines.  And for those of us who have never done a death case, your experiences have given us an insight into what it really means to be responsible for the literal life of another person. What is the pressure like?  Did you find the resources available to you sufficient to do the job?  Is there a level of expertise that death penalty representation demands to be effective?  Do the lawyers representing death penalty defendants have the chops for it, or are there too many who take on these cases and, because of their own lack of skill, leave their clients to die for their mistakes?  And what of the lawyers who decide to give up the fight because they don’t believe they can win?

A. Losing a client is devastating. Many lawyers, good ones, give up the work after that. I’ve learned that I’m one of the people who can get up the next day and work on another capital case. I call that a mental illness, though it hasn’t yet been catalogued in the DSM.

As it happens, I was on a panel at a death penalty defense CLE the other day when the question came up of whether we were required to be more attentive, more diligent when doing death penalty work than other criminal defense. We all gave the same answer: No, you’re supposed to work as hard at every case. But given the stakes and the pressure, lawyers are probably more careful when doing capital work.

That much said, there are still terrible lawyers doing capital work. Some are inexperienced. Some incompetent. Some lazy. Some just don’t give a shit. (A few are in it for the money, but there’s so little money that the number of those is very small.) R.B.G. said she’d never seen a case with good lawyering. A bit of an exaggeration, probably, but the reality is that when the lawyers are good and manage to get something close to the necessary resources (only in federal court is there actually a chance of getting what you really need, and then it’s not a sure thing), the client very rarely gets sentenced to die. R.B.G. just doesn’t see those cases.

Steve Bright famously described the death penalty as not for the worst crime but for the worst lawyer. In the [last] words of John Spenkelink, it’s called “capital punishment” because “them without the capital get the punishment.”

Q. Among the epiphanies you’ve revealed, one of the most fascinating is that convicted murderers are almost all given a death sentence, the only real question being whether it’s fast or slow, the life in prison without possibility of parole sentence.  How did you come to see it this way? Does it really matter, if a defendant will never breathe free air again, whether his sentence is death by execution or death in prison? Is there really a point to the fight against execution?

A. The difference between a death sentence and LWOP [life without parole] isn’t where the person will die. Both sentences are Death in Prison. The difference is the agency of death. With a death sentence, the judge says you’ll be killed. With LWOP the message is that you will die. Does that difference matter? They’re both terrible sentences, different sorts of cruelty. Some of the condemned may prefer execution (though that’s often because we provide years of mental torture to the point of making them suicidal). Most would still choose LWOP.

But as Potter Stewart said in Furman v. Georgia, the “penalty of death differs from all other forms of criminal punishment, not in degree but in kind.” And in person. Capital punishment is about us, not just them. Unlike LWOP, capital punishment turns us into killers as the victims are killed in our names. Robert Blecker and Bill Otis may feel good about that. I don’t.

And, of course, it’s irreversible. No oopsies.

Q. Among death penalty defenders, the argument proffered is that anything that delays the execution of a human being is worth the effort.  This explains fights over drug protocols, which really has little to do with whether the state should be in the killing business, but rather just the means by which death occurs. Does this trivialize the big picture, that the death sentence is either right or wrong in itself? Does it undermine the seriousness of executions, by fiddling with the mechanics?  Is the fight about the state killing at all, the system being too unreliable to do something as permanent as taking a life, or is it about saving one life at a time, no matter how horrible the crime?

A. They’re two separate fights.  I don’t have a slippery slope problem.  I oppose the death penalty for everyone.  No Pol Pot/Hitler/Stalin/Tim McVeigh/ISIS/whoever exception.  Abolish it.  Now.  Great.

Years ago, I was at meeting of Ohio abolitionists called to debate and decide whether we should advocate for a moratorium on executions knowing that, rather by definition, a moratorium will eventually end.  But every day it lasts is a day we don’t kill anyone.  There have been similar arguments in the capital defense and abolitionist communities over whether to support ending the death penalty for juveniles  (DONE) or for the seriously mentally ill (NOT YET) or any other subset of the condemned.  Sure, you save a few lives.  But after that’s all done, the fear is, we can feel great about killing the rest.

There’s the argument.  But those lives get saved.  And the republic survives.

To condemn lethal injection litigation as trivial is to miss a few serious points.  First, these are our clients.  If they’re going to be killed despite our best efforts, we still don’t want them to suffer torturous, agonizing death.  Second, as the death penalty becomes harder and harder, and more and more expensive to carry out, the more reason there is to abolish it.   Third the longer we go without killing anyone, the more obvious it is that we don’t need to kill.  Fourth, and finally, saving a life even if only temporarily is still saving a life; hell, all our lives are only temporary.  Every day brings each of us closer to death.

I’ll argue for abolition on grounds practical and theoretical and moral.  But as a lawyer, I don’t represent arguments.  I represent clients.  This one today, that one tomorrow.  Insofar as it helps this client, I’ll certainly argue that the death penalty is unconstitutional.  But my thrust is saving this life. And then the next one.  The winning arguments for the clients aren’t typically the global ones.  They’re case specific.

Not this guy.  Not now. Even if we’re going to have a death penalty, he’s not one who should be killed.

Cross: Andrew Fleischman, Whether It Pleases The Court Or Not

Nov. 18, 2015 (Mimesis Law) — Ed. Note:  Scott Greenfield crosses Fault Lines contributor Andrew Fleischman, an appellate advocate with the Georgia Public Defender Council.

Q. You graduated from Georgia State Law School in 2011, not exactly the best time in the history of law to find gainful employment in the profession.  But you started as an intern with the Atlanta Municipal Public Defender’s Office. Was that where you wanted to be?  Any dreams of lawyer riches, or did you see yourself more as Atticus Finch in the pre-racist days?

A. I had no idea that I wanted to be a public defender until I started interning with the Atlanta Municipal Public Defenders. Honestly, I thought I wanted to be in bankruptcy (2011 was, at least, a boom year for that). When I got there, I was astounded. I had always assumed that there was a presumption of innocence. But people who couldn’t make bail were routinely being warehoused for months if they insisted on a trial, sometimes past the maximum sentence if they had pleaded guilty. It was infuriating.

What clinched it for me was Sunday calendars. For “budget reasons,” judges were holding court only three days a week. Many of the people who were heard on Sunday had been held for longer than 48 hours without a probable cause hearing. When I brought up that it was constitutionally mandatory that these people get released, I was ignored. And I didn’t know enough to take it to a higher court (plus, I didn’t have a bar license). I fought like hell about it. I filed briefs and motions. I still lost. Given a choice between what was right and what was convenient, the system didn’t even struggle.

Then, I had a fluke win. Atlanta’s indecent exposure ordinance had a comma in the wrong place. Under the “last antecedent” rule, the ordinance could be applied only to women. I litigated the issue, and for a few months, the ordinance wasn’t enforced. It made me feel like a real lawyer–as though, if I just paid enough attention, and worked hard enough, I could have an impact on the law.

Being a public defender meant that I could fight hard for a client who, in a private setting, could never afford to pay me to put in the work. I fell in love with the job.

Q. After graduating, you went to work for an Atlanta firm, Head, Thomas, Webb & Willis, which specialized in drunk driving.  Why?  Did you have enough of saving the downtrodden, or did you want something new?  What was it like going from a public defender’s office to being a private lawyer?

A. Unfortunately, though I spent a lot of time interning with the Atlanta Municipal Public Defenders, they weren’t able to offer me a position when I graduated law school. There were hiring freezes throughout the state. So I lucked into a position with a private DUI firm.

Candidly, I probably sucked at it. I really enjoyed litigating a case, but I hated chasing people down for money. Also, private, educated clients tend to have wildly unrealistic expectations about how prosecutors are going to treat them. By contrast, the clients I’d had at the Atlanta Municipal Court were often grateful just to see someone go up and argue with a little fire in his belly. They’d been screwed over before, so they understood that getting any kind of due process at all was its own kind of victory.

Also, I’ve never been much good at negotiating with prosecutors. In one early case, a prosecutor promised my client a particular deal. I accepted. When a different prosecutor tried to renege, I brought a pile of caselaw and said that he was bound by the offer I’d accepted. That prosecutor was so affronted that he contacted my boss to complain. I ended up getting the deal, but only after a protracted process. It taught me a valuable lesson– for most prosecutors, you need to sell the client during plea negotiations. It’s only at court that you sell the law.

Q. When you went private, you turned to doing appeals. Was that something you wanted to do, or did you get stuck doing them as the newest hire?  How hard was it to transition from trial guy to law guy? Was that what you wanted to do? How did it turn out?

A. I totally stumbled into doing appeals. There was a brief due to the Supreme Court of Georgia in my first couple of weeks with the DUI firm. My boss had me do it. I agonized over that brief. I’d never considered myself to be a very strong legal writer. When I turned in the finished product, glowing with pride, my boss said it was crap. But it was the day that it was due, and he didn’t have much time to make changes. We ended up winning, and I got assigned to do a lot of the other appeals for the firm.

Some of the issues were fascinating. We fought constantly about whether Georgia could keep the workings of its breathalyzer machine secret, without a meaningful opportunity for defense counsel to ask how it operated. We ended up taking a case all the way to Kentucky, where I learned the dangers of litigating a case in a courthouse named after opposing counsel’s father.

Ultimately, it wasn’t much of a transition becoming an appellate guy. The Atlanta court had a rule that allowed prosecutors to send the case to a higher court on the day of trial–which they would use liberally whenever they weren’t prepared. The biggest shift was that, instead of helping just one client, I had an opportunity to help whole groups of people. Even when my arguments got shot down or ignored, I found I had a drive to do the work.

Q. You left the firm to work for the Paulding County public defender. This wasn’t Atlanta anymore, though no doubt Paulding County is pretty much like New York or Los Angeles, but without the people, culture or, well, anything. We hear terrible things about such places up north, but are they true? What was it like practicing public defense in Paulding? It’s not far from Atlanta, so was it more cosmopolitan than those other places we hear about?

A. Paulding County is a bizarre fluke county where the Public Defender’s Office won 85% of their trials. In my first year there, we lost only two trials, and both of those convictions were reversed on appeal. The judges were unbelievably kind, knowledgeable, and patient. The juries seemed to take reasonable doubt seriously.

It seemed like everything else about the way that county worked existed to make sure that the prosecution’s worst impulses were kept in check. When the State managed to convict a woman for murder despite strong evidence of actual innocence, a trial judge courageously stepped in, six months later, and reversed her conviction. He said he did not think there was even a 51% chance that she committed the crime. I got to watch that woman, who had given birth in prison, hold her baby for the very first time. It was the single best moment of my life. [And to make this even sweeter, between cross and posting, the Supreme Court of Georgia affirmed the decision.]

Q. By now, you were firmly established as an appellate lawyer, but you spent your time in the trenches before reaching that lofty height. You tried two cases (and went 2-0, which isn’t too shabby). Did you love it? For many criminal defense lawyers, there’s nothing better than trying cases. What did you get out of it? What was your favorite memory of your days as the trial guy?

A. Well, I only stumbled into trying cases. I had not tried a single case when I went to Paulding–I was supposed to be a purely appellate lawyer. But the day of trial, a woman in our office quit. Just showed up for jury selection and quit. On such short notice, I got all of her cases. This was fairly hellish, since my first calendar call, where I had to calm down 40 or so of her former clients, was the same day as the Snowpocalypse (when Atlanta completely shut down in the face of two inches of snow).

The trial court judge gave me a week and a half to prepare for the trial, which dealt with a robbery. My client’s brother said he acted alone in robbing a convenience store, but the State claimed that he had been driven by my client, and had a video supporting that story.

But the State just kept making mistakes. They had trouble certifying their witness as an expert (they weren’t familiar with Georgia’s lax rules), and their presentation of evidence was a little disjointed. They claimed my client was responsible for another robbery a few days earlier, but the store clerk said he was 110% sure that my client hadn’t been the one to rob him, and the State had done no investigation of the man that the clerk did identify in the lineup.

It was a nerve-wracking trial, because my client faced a mandatory 20 years if convicted, and he turned down an offer of two years mid-trial.

After my client got acquitted, the jury asked me for my business card. I had the satisfaction of telling them that I was free, and that no, it was not the prosecutor’s first trial.

Q. You’re now back in Atlanta with the Georgia Public Defender Council, and it looks like you have dedicated yourself to criminal appeals.  That can be a pretty depressing gig, given that the likelihood of winning on appeal isn’t nearly as good as being hit by lightning. Why did you decide to stick with appeals?  Ever get the sense that you’re just banging your head against the wall?

A. Appeals are ridiculously fun. It never feels hopeless. I’m supposed to lose. Courts are going to do everything in their power to make sure the conviction sticks unless you can tell your client’s story in a way that makes a new trial palatable. That’s the part of the job I love.

But if you can do that, if you can tell your client’s story in a way where the judge can imagine walking in her shoes, then you can get great results.

Also, I’ve been very lucky with my appeals so far. I’ve stumbled into a lot of winnable cases, or cases where, once I’ve studied the record enough, something worth arguing pops up. Georgia’s appellate win rate is around 5%. As long as I can stay ahead of that, I feel like my work is worthwhile.

Q. Most appellate lawyer get that one case with the big issue, the one that can change the law and impact thousands of people. Did you get that case?  What was it, and how did it turn out?

A. I can’t say I’ve had an appellate win that has had huge ramifications throughout the State. Probably my most meaningful win was for a client who was charged with the drowning death of her grandchild and her friend because she left them to play in another room while she was on the phone.

In Georgia, it is almost impossible to sue someone for parental negligence. If a day-care center messes up watching your child, there’s a ton of precedent that says they’re not liable. But here, the State was going after this gentle, older lady, who suffered from diabetes and whose family described her as an excellent caretaker.

I was shocked when the jury convicted her. But taking the issue up on appeal, and watching the prosecutor try to justify his decision to charge her to seven Supreme Court of Georgia justices, was deeply satisfying. Even better was seeing her conviction get reversed six months later.

I’m still hunting my white whale, though.

Q. On the flip side, appellate lawyers are often the most frustrated, knowing the law, knowing they have the goods, and then watching as the case dies with an appellate panel that isn’t going to rule your way no matter what you say.  Has this happened to you? Did you do anything about it? Can you? Have you ever had the urge to say, “I don’t give a damn if it pleases this honorable court or not”?

A. I’ve honestly never felt that way. My expectations of the justice system are very low. I’m pleasantly surprised if an appellate court just addresses all of my arguments.

And when a court blows off my appeal with an opinion that I don’t think is well-reasoned, I try to learn from it. Maybe I’m not good enough yet, but maybe a day will come when I can write well enough that a judge will want to learn more about my case, about what I’m arguing. That hope for improvement is what keeps me going even when things are frustrating.

Q. Among the problems I’ve often heard from appellate lawyers is that the trial lawyer failed to preserve a great issue or took some tactical position that was just woefully ignorant of the law. Have you come across that?  What are trial lawyers doing wrong? What do they need to do to improve? And what about the trade-off of winning at trial versus preserving an argument to win on appeal?

A. You are describing my entire job. The most frustrating phrase I ever hear is, “I’m a trial lawyer, not an appellate lawyer.”

Every lawyer who has ever lost a case is an appellate lawyer.

When a lawyer fails to object, it’s usually because they’re either ignorant of the law, fearful of the judge, or caught in one of our state’s many nefarious appellate traps designed to prevent appeals from being heard.

I can forgive the third one, but I feel that many lawyers improperly balance the risks of objection. You can always avoid prejudicing the jury with a motion in limine. Or, if your judge allows speaking objections, you can always talk about the common-sense reasons for a rule when making your objections.

I think it can be a mistake for a lawyer to just say, “Objection, hearsay,” when they could say, “Objection, hearsay, the State hasn’t given us a chance to talk to that witness.” Or “Objection, leading,” when you could say “Opposing counsel is testifying, and it’s their witness we’re hoping to hear from.” The rules of evidence seem a lot more sympathetic, and a lot less technical, when people are aware of the common-sense reason why courts have developed them.

As for legal ignorance, it infuriates me. I once had a lawyer testify that he doesn’t bother to memorize the rules of evidence, because he has a book. No. Just no. Your job is to fight for your client, ferociously and well. You can’t do that if you’re flipping through a book. You’ve brought safety scissors to a gunfight.

Q. Your writing is usually cerebral and well-researched, often steeped in both a cutting edge story and a deep dip in the caselaw pool as well. What are you trying to do here, spreading the gospel of law when people just want the juicy part of an ugly law story?  Do you feel a duty to try and help people to understand the law, or is that just what happens with law guys?  Can you write interesting, readable stuff, and still make sure you get the nuance of the law right?

A. I hope that I get the nuance of the law right. There’s always room for improvement, and I’m always trying to get better.

My goal, writing here, is to get people who don’t already agree with me to have the same epiphany I had when I was a scared third year law student arguing in front of a big scary judge. We don’t have the fairest justice system in the world. It does not slant in favor of the defendant. It favors, at every angle, and in every way, the victory of the State.

And so we can’t fall back on reasonable doubt as the panacea that cures all the problems we hear about. We have to struggle, constantly, for real justice. That means a system that convicts the guilty and acquits the arguably innocent, and doesn’t punish more harshly for seeking due process than for committing the crime.

We’re not there yet. We’re not even close. But if we can just keep talking about this, maybe we’ll start moving in the right direction.

Cross: Ken White, The Man Beneath The Popehat

Nov. 11, 2015 (Mimesis Law) — Ed. Note:  Scott Greenfield crosses Ken White, Los Angeles criminal defense lawyer, former Assistant United States Attorney and co-founder of the blog Popehat.

Q.  You were the poster boy for a Biglaw corner office; Stanford undergrad, Harvard Law School, a journal editor-in-chief, then a federal clerkship. And instead of going straight for the bucks, you went to the United States Attorney’s office.  Was there a burning desire to get the bad guys or was it part of some grander scheme?

A. In college I was looking around for a summer job that would help me get into law school, and I wound up working at the DA’s office in Los Angeles.  I wound up working there three summers, and decided I wanted to be a prosecutor.  In law school I did a gig as a student prosecutor in Malden, Massachusetts, and then an internship at the U.S. Attorney’s office.  During my clerkship it seemed natural to apply for prosecutor jobs, and I got very lucky being hired by the U.S. Attorney’s office in Los Angeles — largely on the strength of my judge’s recommendation and because, as the U.S. Attorney at the time told me, I came very cheap.

I don’t think I ever had a full-on true believer mindset about being a prosecutor — I never thought I was destined to save citizens from evil, or anything.  But I wanted to be a trial lawyer, and I thought the issues presented were interesting and challenging, and the work meaningful and, for lack of a better term, dramatic.  In retrospect I wasn’t too reflective about it.  I think that’s pretty common — we decide we want to pursue some path, and then look only at the things that point down that path.  If the PD’s office had offered me a summer job back in 1989, maybe I would have started there out of law school.

I did a summer gig at a Biglaw firm.  I liked the money (and this was before the money got truly stupid-crazy), but I didn’t see myself enjoying it.  I turned down their offer at the end of the summer.  Apparently that’s considered rude; years later they turned me down when I was looking to leave the U.S. Attorney’s Office.  U mad, O’Melveny?

Q. As you well know, there are a lot of people who read you now and can’t quite understand how it’s possible you were a prosecutor, because they fall into the “all prosecutors are evil” category. What do you say to them to make them understand?  Do you get tired or annoyed with people who refuse to grasp that there really are bad dudes out there who deserve to be prosecuted?

A. To me it’s just the flip side of the “how can you defend those people” attitude that defense lawyers get, so it doesn’t bother me that much.  We all tend to go around with caricatures of our opposition.  It’s easier to see them as just folks when you’ve been one of them.  As a defense lawyer I value my experience as a prosecutor because it helps me evaluate how they actually think, as opposed to how they are stereotyped to think.

I have some serious problems with prosecutorial culture and with the structure of the criminal justice system, state and federal.  And certainly some prosecutors are venal or power-mad or amoral.  But that’s true in any profession.  Prosecutors just have the power to give their character much more impact on lives.  If your waiter is amoral he can’t take your house because your kid got caught with three joints and a handful of plastic baggies.

The U.S. Attorney’s office had — and still has — a lot of decent, principled people who are fighting the good fight.  That job had some of the best camaraderie and team spirit I’ve ever seen.  And I don’t have a philosophical problem with the concept of people being prosecuted for breaking just laws.  I went after cases that I now regret — drug couriers, mostly — but plenty of fraudsters who preyed on the weak, too.
Q.  After your stint with the United States Attorney, you took the Biglaw for a few years, first at Sheppard Mullin and then Paul Hastings. What happened. Why didn’t you stay?  What made you decide that you wanted to have your own firm?

A. There were a few reasons I didn’t stay.  One was money.  One was a growing sense of disenchantment with the justice system.  But looking back, I think that not figuring out yet how to deal with depression and anxiety was part of it.  In 1997 my mom was diagnosed with Stage IV lung cancer.  She was dead in 6 months, at 55.  I spent a lot of time with her in the hospital and then in hospice, and it was a harrowing experience.  It was almost certainly the trigger for major depression and anxiety.  I didn’t know how to deal with it, and in part interpreted it as being unhappy with where I was and what I was doing — which was wrong.

I got a gig with another ex-AUSA at Paul Hastings to do white-collar defense and civil litigation.  Bigfirm life was more palatable because I had trial experience and therefore value to contribute.  When that partner left to start his own firm, I shifted to Sheppard Mullin.  After a couple of years of that my partner Tom Brown and I decided to start our own shop.

Why did we do it?  It’s very hard to represent individuals or small companies at Biglaw these days.  The required hourly rates and required fee deposits are prohibitive to everyone but the super-rich or big corporations.  The Biglaw firms have wide client bases that cause a lot of conflict problems.  And Biglaw firms aren’t generally receptive to non-white-collar defense work.  We wanted to be able to take the types of clients and cases we wanted, at flexible rates, doing the type of work we were good at, and on our own terms, without bureaucracy, and without stuffy squeamishness about non-white-collar clients.  It was a great choice.  I’m very grateful to Tom for his initiative and leadership in doing it.

I perceived, correctly, that I’d never be able to bring in many clients at Biglaw.  I’ve had much better luck at our own firm.
Q. And then there was Popehat.  When it started, it was more of a gamer blog than anything else, and you and the other bloggers were anonymous.  How did this happen?  What made you get together, start a blog. Who initiated Popehat, and was there any deep thought put into it in the beginning as to what you wanted it to be?

A. I was a nerd before I was a lawyer, and an aspiring writer before either.  I used to write a lot on a computer gaming forum as an outlet for creativity — political and social debates, humor, etc.  After a while I figured it would be fun to have my own platform to write regularly, and stated a primitive version of Popehat in 2005 on Squarespace.  Patrick was someone I knew from gaming forums, and a kindred spirit of law, culture, and snark.  Same with David — he was the far-smarter dude with a wicked sense of humor who knew about art.  So I invited them to join.

I don’t think I put deep thought into it.  It was just going to be a place where we wrote the sorts of things about topics that interested us, just on a blog instead of on the forum.  The focus developed slowly.
Q.  While Popehat was a “Group Complaint About Law, Liberty, and Leisure” at first, it has since morphed into a first rate law blog. While you and your co-blogger Patrick (whose last name remains a mystery, and whom, I believe, you’ve never met in person) are lawyers, what about the others? Other than the occasional post from Clark and your new blogging lawyer, Adam Steinbaugh, its really just the Ken show now. Was there a problem? Did the others peter out? Are they all good with what’s happened with Popehat?

A. I’d quarrel with the notion that we’re a law blog.  We’re a blog where kindred spirits talk about what interests them.  It just happens that the most prolific and long-winded authors are interested in law.  Authors have come and gone, and are always welcome back.  Not everyone gets the write-frequently bug, and real life intrudes.  Nobody’s ever been tarred and feathered and expelled. Yet. Watch your step, Adam.

I also think we’re not a classic law blog because I’m not deliberately aiming at lawyers.  The legal system has extraordinary power over us.  Some old white dude (often) in a robe makes a decision based on interpreting law and all of a sudden someone is going to be executed, or not, or can get married, or not, or can say something, or not.  But lawyers have always been a priest-caste with our own mumbo-jumbo that we make deliberately arcane.  Who would pay us these rates if we didn’t?  I’m interested in explaining important legal issues in a way that’s entertaining, not dumbed down but accessible, and not unnecessarily jargon-bound.  It would be a good thing if everyone understood their rights, and how they are defended, more than they do now.
Q. The “Ken at Popehat” persona eventually became Ken White. You outed yourself in a post at Reason, though from what you’ve said it was about to happen anyway. Did it present a problem?  As the pseudonymous Ken, you could be pretty rough on people who asked for a good smack. Did having your real identity known change that? Did you worry that someone you offended would come after you?

A: Three or four people identified me with good detective work before I dropped anonymity.  One was a journalist who wanted to ask me about my experiences with a federal judge I had mentioned; he found me by asking people in the U.S. Attorney’s office if they knew a Ken who had adopted kids from Korea.  Another dude — a law student at Tulane — worked it out when I mentioned what floor of a skyscraper I was on.  Unless you are very stingy with details, or deliberately misleading, anonymity is not easy to maintain if someone wants to find you.

Going public hasn’t caused me any real problems.  An occasional litigant has tried to use something I wrote on the blog against me in court, or has tried to rattle me by revealing they know that I blog. I’m never sure how I’m supposed to react.  “Congratulations?”  “I would have gotten away with it if it weren’t for you meddling kids?”

Now, on one memorable occasion, when I was pro bono counsel to Patrick Frey of Patterico on a free speech case, opposing counsel quoted a sarcastic aside from one of my posts as if it were literal, which Judge Wu accepted.  That’s the risk of being sarcastic all the time. It turned out okay.

I don’t think that going public changed how I blogged much.  When I write about my own cases I either take a much more professional tone or anonymize them — I don’t think it’s professional to take shots from the cheap seats, and I’ve tried not to.  I wouldn’t bash a prosecutor I’m opposing by name, because I don’t think it’s fair they can’t respond (at least not in their own name).

Offended people have come after me, either with lawsuit threats or, in one case, actual lawsuits.  Fortunately so far they’ve been too disorganized to cause any real problems.  Totally worth it.
Q. You have become renowned for the Popehat Signal, seeking pro bono help for bloggers who are threatened with a lawsuit to silence them. There was the Oatmeal case and the knitters, for example.  What made you decide that you were going to become the “go to” guy on the internet for people threatened with suit?  Were you always deeply interested in free speech issues, or did this come with your experience online?  Do you ever vet the people you champion for whether they should really be looking to their own supporters rather than a handout on the Popehat dime?

A. I’ve been interested in free speech issues since college.  I did my senior honors thesis in political science on hate speech codes on campus — then a relatively fresh issue.  Even during my years as a prosecutor I kept an eye on the law surrounding free speech.  As I blogged, it slowly and naturally became a focus.  I think that online free speech interests me because it’s an excellent example of what happens when established law meets new and different cultures and technologies.  It’s living science fiction, in a way.  We’re not riding hoverboards or rocketing to a moonbase, but we’re watching mass communication technology and the internet make breathtaking changes to society at a breakneck pace, and we’re watching how the law slowly evolves to deal with it.

I fell into the Popehat Signal because these cases fascinated me and I care about them.  The combine many of the things that interest me — the law changing to reflect technological change, the clash of cultures that comes with that change, and the ways that the legal system fails to achieve justice because of its various defects.  I’m only admitted in California, and I can’t help everyone, so I started the signal as a way to stay involved and help people indirectly.

Plus I hate bullies.  Threatening to abuse the flaws in the legal system to shut someone up is bullying.  I like helping people punch back.

As for the Popehat dime — well, you and I have had this discussion before.  Yes, I think that sometimes interest groups and communities should do a better job of supporting their own, financially and through publicity.  (For instance, I’ve thought for years that the conservative online community ought to be embarrassed at its failure to support the people targeted by domestic terrorist Brett Kimberlin’s lawfare.)  But it’s easy for us to say how we’d rally support, because we’re sophisticated consumers of legal services.  Most of the people who get threatened with bogus lawsuits aren’t.  They don’t know how to start, or what the issues are, or how to find a suitable lawyer, never mind afford one.  Sometimes people helped by the Popehat Signal have paid, at least at a favorable rate — the key has been to connect them with lawyers who are motivated and knowledgeable about the subject matter.
Q.  After a bout with depression, you went live about the fact that you suffer from it.  Were you afraid of the reception your revelation would receive? What about the question of whether, despite all the personal concern for your well-being, this impairs a lawyer’s ability and availability to serve his clients’ needs?  Is this as easy a question as many would have it?

A.  I was afraid. I’m afraid every time.  I have talked about it obliquely at Popehat for years, but being a lot more explicit under my own name is difficult.  I worry (at least in my gut) that judges and opposing counsel and clients will judge me, I worry that it will be used as a weapon against me, and so forth.  Here’s why I do it:  every single time, I get emails and even old-fashioned handwritten notes and letters thanking me for being open about it.  I don’t think it’s because I’m a particularly super-special crazy person or that I’m better than others at explaining it.  I think there’s not enough people being open about it — not enough people that depressed people and their families can identify with.  In my post this May, I talked about the experience of meeting someone who was almost comically different than me in every cultural way, but with whom I connected strongly because of our shared experiences of depression.  It makes a difference for me when people are open, and I want to make that difference for others.

After the most recent post, like every time, I second-guessed myself.  Is this destroying my professional credibility?  Is it self-indulgent rather than helpful?  But then I got a handwritten letter from one lawyer across the country talking about how a post helped him, and an email from a father who talked about how the posts helped him understand what his son was going through.  How can I stop when that sort of thing happens?  I’m here because people helped me.  I want to help people back.

Does it impair my abilities?  Actually deep anxiety and depression tends to make me obsess over details.  It’s unutterably miserable, but I don’t tend to miss things. But different people have different experiences.  There’s one common thread — acknowledging it and treating it promotes the right result, and ignoring it or burying it encourages the wrong result.  Between the lawyer who is open about mental illness and addressing it and the one who is denying it, take the open one every time.
Q.  Popehat has a remarkable following of readers, and they stretch across the political spectrum.  If there’s any doubt, a quick reading of the comment to your posts will dispel any notion that it’s only libertarians or cop-haters or any other identitarian group.  But those same comments are often kinda wild and crazy, going off into conspiracy theories, misstating the law, indulging in wild speculation.  Do you feel any responsibility for correcting the misguided, or at least not letting the huge Popehat soapbox be used to spread wrong ideas?  What do you do about it? What should you do about it?

A. I think it’s a mistake to assume that the community of people who comment closely resembles the community of people who read. People motivated to comment are probably more likely to be people who feel strongly about things, whatever the site.  No offense to our commenters.  Except the annoying ones. You know who you are.

Whether and how I respond to commenters is largely arbitrary and mood-based.  If I’m in the mood and it serves my interest in making law comprehensible, then I’ll do it. If I’m in the mood for a fight I’ll do it.  If I think of a good line I’ll do it.  But the nice thing about a fairly robust group of commenters is that often people correct mistakes before I get around to it.

But no, I don’t feel an obligation to correct commenters most of the time.  I don’t think that most people read comments and expect them to be right. I want my content to be right, but I’m not going to be the dude from the xkcd comic staying up all night because someone is wrong on the internet.
Q.  Despite the lessons of your elite education, you can be a monumentally snarky kind of guy. You know your memes and have one of the wickedest senses of humor around, coining the glorious phrase, “snort my taint.”  At least when you write. Yet when you interview, you are quite the serious lawyer, demonstrating knowledge, restraint and, frankly, extraordinary thoughtfulness.  So who’s the real Ken at Popehat?  Is it that wild snarky guy or that thoughtful, cerebral lawyer?

A. It’s a lot easier to be funny in print, I think.  Live comedy is hard.  Plus, bear in mind that Reason and FIRE and so forth all edited those interviews.  They cut out all the parts where I sit there grinning like an idiot at my own jokes. Plus, I knew they wanted some serious content, so I gave it to them.

I think I try to suit the mood to the occasion.  My father has a great love for language and a wicked sense of humor.  Growing up was a constant exchange of puns and sarcasm and wordplay.  I still enjoy that, at least in its place.  I think we can connect with people, and keep their interest on complex topics, with irreverence and humor.  But I tend to be more reserved in person with strangers.

Links, and other internet elements, are some of my favorite parts about blogging.  It’s a whole new level of communication.  I can convey sarcasm not just through the text, but by what I link to in the text — a new frontier for being a wise-ass.  But memes?  They’re just cultural references, not really that different than the type we’ve had for millennia.  When you’re a student reading Shakespeare someone has to explain most of the cultural references to you, and many of them wind up being something like “lol Venetians are totally syphilitic,” which is a meme you could see developing on 4chan today.
Q.  There aren’t many former AUSAs who are willing to speak out against what the government is doing. You are the rare exception, and you’ve done so eloquently and informatively.  Now that you’re gone from the dark side to the side of the angels, do you have any regrets?  Do you ever feel the impulse to prosecute again? Do you wish you took the path that led to the Biglaw corner office?  Do you wish you never revealed that Los Angeles criminal defense lawyer Ken White was the mythical Ken at Popehat?

A. I am incredibly lucky to be where I am, and happy with the team I have and the challenges I now face.

I’d still find it difficult to handle Biglaw.  I’m happy to give good service to big companies, but I like to represent individuals and small companies too, and Biglaw is just too expensive.  Plus, since we’ve been on our own for ten years down, I’m probably permanently un-housetrained.  And I can’t see Biglaw being happy with a lawyer writing a blog that thrives on pony paranoia and taint references.
At this point, I’m too much of a defense true believer to ever go back to being a prosecutor, even if they’d take me after I’ve run my mouth so much.  I know I couldn’t further work to sustain the War on Drugs, which I see as a grave and immoral tragedy.  There are plenty of prosecutors pursuing righteous cases, but I don’t think I can ever be one of them again. 

Cross: Ken Womble, Fighting The Good Fight

Nov. 4, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Ken Womble, who went from public defender to start his own small firm, Moore Zeman Womble, in the trenches of Brooklyn, USA.

Q. As you’ve made painfully clear, you started out your legal career with the Nassau County, NY, Legal Aid Society. Why? Were you one of those pointy-headed do-gooders? Did you want to get trial experience?  Was that the only job you could get?

A. Not a do-gooder. Not a do-badder either.  I was all over the map in college, switching my major from architecture to theater to unknown before landing on Criminology.  It stuck.  The legal delineation of right and wrong fascinated me but it also made a lot of sense to me.  There is a natural logic to basic criminal law.

But when I was surrounded by nothing but theory in law school, I probably saw myself as more of a prosecutor than a defense attorney.  When I graduated, I actually applied for jobs on both sides, defense and prosecution.  Lucky for me, the first place that decided I was worth paying was the Nassau County public defenders office, and I gladly took them up on their offer.  As soon as I got a dose of the reality of the world of criminal justice, I realized that I would have been a terrible prosecutor.

Q. Almost every public defender gripes about the lack of respect shown them by their clients, who call them names like “lemonade” and “public pretender.” Was that your experience? How did you deal with it? Any magic tricks that new PDs should know about?

A. Lemonade? That’s a new one. Look, when you represent thousands of people, you are going to have a mixed bag of performance reviews. I tried as hard as I could to treat the client with respect and most of the time, I got it in kind. When you first meet a client as a public defender, those first few moments are vital. It is your job to set the tone. I like to call it alpha-dogging. You have to let the client know that you are in control. You are the one person standing between them and the government. That takes a badass. You should let them know that you are that badass.

But being in control sometimes cannot overcome the fact that your client is extremely and provably guilty. The most common insult I would hear (usually after delivering less-than-good news) was “You are just working with the DA.” I would let them know, firmly, that I put food on my family’s table fighting against the DA’s Office day in and day out, so don’t come at me with that nonsense.

Some public defenders these days have a tendency to see every client as a blameless victim who must be coddled. No. You must foster an individual relationship with each client according to who that person is. If they come at you with insults because they don’t like you telling them that the video of them robbing the store is going to be problematic, you need to stick up for yourself. How the hell are you going to defend your clients if you refuse to defend yourself? Treat every client with respect, understanding that even under the best circumstances, this person is going through hell. But this ain’t no walk in the park for you either. You’ve earned respect. Demand it.

Q. You’ve written about your experience as Nassau public defender with less than glowing words, blaming management for many of your misgivings about how cases were handled. Was there anything you could do about it as a PD? Should there have been? What options are there for public defenders who want to do right by their clients when management stifles your ability to do so?

A. To be honest, I was a brand new attorney, and when you are a young attorney, you question everything. You don’t know how anything works so most of the time, your head is spinning. You are mainly just trying to not get steamrolled by this system that seems like it will swallow you up at any point. After a while, I tried to talk to my boss about some of the practices I have written about, but when he told me to fall in line, unfortunately, I did (until I quit). He was an attorney who had been around forever and he signed my rather meager paycheck (which I needed desperately), so I backed down out of fear. Fear of losing my job, but also fear that I was not seasoned enough in this game to truly understand what was going on. Unfortunately, from what I have heard from people working there now, that fear is still very much a part of that office.

I admit that I failed a tremendous number of people when I worked in Nassau County. I defended to the best of my abilities, but I wish I had done more to point out how wrong things were out there. As for your “what should public defenders do about it” question, that is so difficult. Public defenders spend their entire workday (and often longer) fighting against cops, DA’s and judges. At the end of the day, they simply do not have enough left to then take the fight to their own management. We ask so much of public defenders in these types of situations, maybe the question is, “what should WE be doing about it.” You can’t swing a dead cat without hitting an attorney organization or a bar association. These groups have been focused on ensuring that police, prosecutors and prisons don’t violate defendants’ rights. It might be time to look at the defense side to see what needs to be done.

Q. After Nassau LAS, you went to work as a public defender at Brooklyn Defender Services, a private contract defender who, some might say, is in “competition” with the Legal Aid Society. Was it different? Were you able to be the lawyer you wanted to be?  What was it like to be given the opportunity to defend without anyone telling you to clear your calendar at all costs?

A. It was like night and day. When I got to BDS, it felt like I was a solo practitioner who was affiliated with a bunch of other solo practitioners. Lisa Schreibersdorf, the executive director, was great because she trusted us to be good lawyers. She never went snooping through our files just to make sure we had crossed every t and dotted every lower case j. We each had the autonomy to be the kind of public defender we wanted to be. Everyone worked hard and we all had each others’ backs. But there was never a question that we were doing all of this for the clients.

This kind of environment fostered a sense of camaraderie and an exchange of ideas amongst different styles of lawyering that made BDS a force to be reckoned with. I know there was some bad blood between Legal Aid and BDS from back in the Giuliani 1990s when BDS was formed as a response to Legal Aid’s union strike, and I have even been referred to as a “scab” for working at BDS (usually in good fun), even though back in the 90s I was living in Florida, listening to Smashing Pumpkins and making nothing but good decisions. I would say that these days, the only competition between BDS and Legal Aid is on the softball field.

Q. One of the primary reasons someone goes the public defender route is to try cases, an opportunity that doesn’t present itself very often outside of criminal law. Was that your thing? Your first trial, disaster or fiasco?  And over time, did you find your groove trying cases? As a lawyer, is there anything better than cross?

A. Honestly, the idea of trying cases wasn’t even on my radar when I became a public defender. But it didn’t take very long before one came knocking. My first trial was absurd in every possible way. My client was charged with weapon possession. The weapon? A belt buckle with the word “ninja” on it and a detachable (and not at all sharp) throwing star. In New York, it is illegal to possess a throwing star. The whole trial, that actual jurors were forced to sit through, was basically the DA saying that the object was a throwing star, and me saying it was not. My client was convicted, but the judge wisely just sentenced him to some community service (instead of the 10 months jail the DA was asking for). I learned a lot from that trial. One thing I learned was that I hated losing, and the only way I could figure out how to keep that from happening in the future was to prepare more than the other side.

Listen, trial is terrifying, every time. But after that first one, I at least knew I wasn’t scared to drop the gloves and pick a jury. I had a much better understanding of what a trial actually was and over the years, I can definitely say that I became very good at winning trials. The key is, when you are completely prepared for the trial, go prepare some more. You only get one chance to react properly during a trial. If you can’t immediately connect those dots and land that point, the moment is gone forever.

Speaking of cross-examination, I do love me a good cross. For me, though, there is nothing better than crushing a closing. I have had a few closings where I have just shredded the DA’s case to bits. Painted them into every possible corner. There is nothing more satisfying than sitting there during the DA’s summation and having jurors look over at you with an expression that says, “Can you believe this fool is actually saying this?”

Q. Every trench lawyer gets smacked at some point, and usually many points, with a ruling that is just so totally awful, completely wrong, that it makes their head explode. What was yours? Was there one case, one trial, one judge, who made you consider taking the chance of reaching over the bench and taking a good punch?  Did you?

A. I have certainly disagreed with plenty of rulings over the years. But nothing makes me crazier than when a judge locks my client up (or keeps him locked up) for no good reason. Especially at arraignments. When a judge takes a story from the DA as fact, in spite of it making no damn sense, and sets bail, I have been known to voice my objection somewhat loudly and colorfully. After one such improper setting of bail (improper because the DA later dismissed this garbage case), I leaned into the microphone (more for visual than auditory effect) and repeatedly demanded that the judge give me one good reason my client was getting locked up. His only response was to order me off the record.

I complied by throwing my files at our innocent clerk (sorry), stating to no one in particular that I had to “get out” of there, and I stormed out of the courtroom to a small but supportive smattering of applause from the audience. This move was henceforth referred to as “Wombling Out.” Hey, sometimes, when a judge wants to ignore all logic and reason, as a public defender your only option is to make sure that no one in that room is confused about your disagreement. But it doesn’t work if you are just showing off. It only works if you are pushed to the point where you can do nothing but wreck the formality of the courtroom.

Q. There came a time, not too long ago, that you gave up the honest virtue of being a public defender in order to earn a living as a private practitioner.  What did you think it would be when you decided to leave? Were you thinking, “hey, if those guys can do it, so can I”?  Did it turn out to be as easy, or hard, as you thought it would be?

I would say it has been as hard as I expected, but then again, I expected it to be very hard. It was never about what other people were doing, but more about what I wanted for myself. When I first left the public defenders office, I assumed that I would have to learn areas of law that I was not really that psyched about in order to make ends meet. Slip and fall, appeals, matrimonial, etc. The consumer seems to be much smarter than that, though. People have come to me for cases related to crime, police and discrimination. It has been really great to have people contacting me with cases that allow me to be as pissed off about injustice as I was when I was a public defender.

Q. Running your own practice rarely turns out to be quite what one expects. Was it what you expected?  Did you realize that every lawyer in a small practice is the boss as well as the janitor?  How did you feel when you sat at your desk and the phone was silent?  Did you make the right choice?

We (myself and my two partners) got a crash course in business before we ever had our first client. We found an old hair salon space in downtown Brooklyn and spent months basically building our office and setting it up (with a good amount of help from skilled friends and relatives). We learned a lot about budgets, drywall and recessed lighting. But we also were able to fight out a lot of our natural disagreements and then hit the ground running when we opened up shop.

But yes, since we have opened, we have been attorney, receptionist, janitor, everything. Personally, I like the notion of being able to vacuum your own office instead of paying someone to do it. Sure, time is money, but in our first year, the one bit of currency that we have in almost unlimited amounts is time. Money, that’s a different story. You can’t just go to the supply closet and grab paper any more. You are the supply closet.

There have certainly been times, especially in the first few months where if a week went by without any new clients, we were all freaking out. In those early days and weeks, it was the constant fear that you were going to fail and your family would be out on the street. But with each passing month, we are realizing that what we have set up is working. We each put in the effort to become quality lawyers, and now we have put in the effort to build a quality product that has attracted clients. So far, so good.

Q. When Fault Lines started, and you let it be known that you really wanted to become a part of it, what were you hoping to accomplish?  I put you through the wringer before taking you on board (with what is now delightfully known as the “Womble Test”). Not only did you put up with it, but you weren’t going to go down without a fight. What pushed you?

A. Honestly, I was a bit surprised that you even responded to me. I knew that I had some thoughts and ideas on criminal justice issues, but I guess the thing that made me reach out to you is that I seem to have an ability to get people as pissed off about something as I am. And I tend to be pissed off about our current state of criminal justice. I had seen you employ that skill masterfully at Simple Justice, and I thought we might be best buddies. But you decided to play hard to get.

Honestly, when you gave me the royal smack down after my first attempt, I was a bit disappointed, but I honestly wasn’t expecting to be taken seriously. When you gave me another chance, I tried to take your advice and make what I wrote matter to people who aren’t me.

Q. Now that you’ve really made a dent with your writing (not to mention come to realize that it’s not all fun and glory), has it been all you hoped it would be? You’ve grown into quite a fiery writer.  Do you see your writing as serving a higher purpose?  Do you think lawyers have an obligation to illuminate what’s wrong with the system and what should be done about it?

A. Writing for Fault Lines has been immensely stressful and cathartic. Stressful because it is hard work, deadlines and putting myself out there (plus my boss doesn’t mess around with half-assed attempts, I have learned).  It has been cathartic because it has given me an outlet to vent about all the things that are wrong with criminal justice.  I recognize that people might disagree with what I write, but I do my best to make sure that what I say is honest and logical.

I won’t speak for what I think other lawyers should do, but I would like to think that my writing has allowed some people to see the reality of our policing and our justice system more clearly.  We all wish cops and prosecutors were honest.  But if wishes were fishes, right?  We cannot force honesty upon people, but we can at least open our eyes to the possibility that cops and prosecutors will lie, cheat and steal to get a conviction.  Law enforcement has spent a long time bullying us into unequivocal support.  I am trying to do what I can to speak for the other side.

Cross: Radley Balko, The Agitator

Oct. 29, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Radley Balko, Washington Post columnist at The Watch and author of Rise of the Warrior Cop: The Militarization of America’s Police Forces.

Q. You did one year of law school before walking away. What did you figure out that the rest of us didn’t?

A. I’m glad I went, and I’m glad I dropped out. I think both were necessary. I loved the intellectual rigor of law school. And those first year courses have been incredibly valuable in my reporting. I think every journalist should take the first year law school classes in property, criminal law, constitutional law, and torts. But I knew I didn’t want to be a lawyer before I went. I enrolled mostly because I was curious, and because I wasn’t happy with my job at the time.
Those would be acceptable reasons if it didn’t cost $40K per year. My advice: Go to law school if you’re certain you want to be an attorney, or if someone else is paying for it. Otherwise, don’t.
Q. You’ve worn your libertarian politics on your sleeve, all while being finely tuned to the issue of criminal justice. Was there any pushback from the more conservative libertarian side to your being concerned with abusive cops, over-criminalization and puppycide when conservative libertarians were still being “tough on crime”?
A. Not really. I mean, I’ve been criticized by conservatives, but mostly from holdout law-and-order types. When talking to or writing for conservatives, I try to emphasize the point that cops and prosecutors are government employees. The fact that they’re doing a job you happen to think is necessary doesn’t mean they’re immune to the public choice problems that affect any other government worker — corruption of power, perverse incentives, mission creep, turf wars, and so on. The main difference is that with cops and prosecutors, the stakes are much higher. So they actually require more oversight, transparency, and accountability. I think more conservative intellectuals are getting that. Unfortunately, they’re often drowned out by all the Fox News-Chris Christie-style demagoguery.
As for libertarians, I’d say most, nearly all agree with me on these issues. I’ve received nothing but positive feedback from other libertarians in the decade or so that I’ve been writing about this stuff. I think until the last several years, with the exception of the drug war, libertarians have been far too quiet about some of these issues. Part of that I think is because these issues just didn’t affect them personally — which is true of most people. But that’s no longer the case. Reason does some of the best criminal justice reporting anywhere. And Cato people have been really vocal on issues like police brutality, prosecutor misconduct, sentencing, etc.
Q. Before you were writing for big league media, Huffington Post and now the Washington Post, you were just the Agitator. How did you like being a blogger versus one of those fancy-pants writers with a blue check next to your twitter bio?
A. The biggest change I guess is in what I write about. Back when I had a smaller readership, I’d write about just about anything — my personal life, topics upon which I wasn’t really qualified to have an informed opinion. I sometimes cringe at some of the stuff I used to blog about. So I guess I’m more focused now. Probably more professional.
One big difference now is how I get stories. Early in my career I’d have to hunt them down. Now, it’s more about sorting through all the tips and leads people send me, and figuring out which ones are worth pursuing. Tips from defense attorneys almost always check out. They’re not going to waste time contacting a journalist unless they’re really angry about a case. Tips from wives and girlfriends of inmates are the least reliable. I actually once reached out to a guy in prison after getting a long email from his girlfriend protesting his innocence. He said, “No, I did it. I love that woman, but she’s just trying to get me out.” Lesson learned.
Also, sources return my calls, now.
Q. Puppycide. If you didn’t coin the word, you certainly made it a household word, and it definitely struck a chord.  Why? What is it about dogs?
A. We have a natural suspicion of anyone who runs afoul of the criminal justice system. Except in really egregious cases, I think most people assume that if you get shot by a cop, you probably had it coming. But we don’t think that about dogs. Even when a dog is angry, it’s just being a dog.
I’ve heard people make the point that we get angry about dog shootings because we care more about dogs than we do about people. Maybe there’s something to that. But I also think the dog shooting phenomenon is symptomatic of the larger problem. Older and retired cops I’ve interviewed over the years are bewildered by it. One retired cop I interviewed for the book said he’d never seen or heard of a cop shooting a dog over the course of his entire career. He’s mortified at how often it happens today. I think it demonstrates how officer safety has become the highest priority in policing. The fear of a dog bite now justifies the use of lethal force, even if it puts people nearby at risk. And it’s entirely subjective. If a cop says he was afraid of the dog, the shooting is deemed justified, no matter how irrational that fear may have been. Most police departments also offer very little training in how to interact with dogs, or how to deal with them in ways other than killing them.
So there’s a deference to the police account of the event. There’s a premium on officer safety, often at the expense of public safety. There’s little to no training in de-escalation. This should all sound familiar.
Q. While puppycide pulled the heartstrings, you made a habit of pointing out police misconduct and abuse involving human beings for years before reform got on anyone’s agenda. Why did it take so long? What happened now that made a difference?
A. Because it was mostly happening to people who don’t have a voice. It’s telling that the first state to pass any sort of SWAT oversight bill passed that bill only after a botched SWAT raid on the mayor of a small town. When a member of the political class was affected, the political class took action.
I think the national movement on police reform is due primarily to two developments: First, police and prosecutor misconduct is finally starting to affect people who have a platform or some political power. Second, thanks to cell phone cameras and social media, the communities that have been dealing with these problems all along finally have a way to get the rest of us to pay attention.
Q. Your book, “Rise of the Warrior Cop,” was (as I wrote in my review) a seminal work on how we got from Sheriff Andy in Mayberry to SWAT teams, body armor and police departments with tanks. Was it inevitable from Nixon’s presidency forward? When did the public forget that cops were supposed to be the people we could turn to in crisis?
A. Thanks for the compliment. As I pointed out in the book, it’s important to remember that the policies that gave us more militarized police forces came at a time when crime rates were soaring. Nixon came to power in an era where people frequently saw rioting on television, when homicide rates were through the roof. I don’t think those policies made us safer. In the book I profile Jerry Wilson, a very progressive police chief in D.C. in the early 1970s who refused to adopt policies like no-knock raids and other aggressive police tactics. Crime dropped in D.C. during his tenure even as it was going up across the country.
But those policies were in response to something that was real. The problem of course is that when the crime rate drops again, we don’t repeal all those policies we passed out of fear. We don’t even make an effort to assess which ones worked and which ones didn’t. (Or at least not until only recently.) We just wait for the next crisis, then pass more laws that give police and prosecutors more power. It’s what the historian Robert Higgs calls the ratchet effect.
That’s why these stories speculating about the soaring crime rate are so harmful and irresponsible. First, it isn’t even at all clear that the crime rate is going up. But even if it is, it at worst is back to levels it was five or six years ago — levels we were excited about at the time. To report this stuff without that context poisons the discussion of reform.
Q.  In your book, you seem to have developed a surprising rapport with many in the law enforcement community. Did it change your view of police?  Did you become more forgiving of their foibles?  Did you come to understand the First Rule of Policing?
A. I’m sure there are lots of law enforcement officials out there who would disagree with you about my rapport with them. But I did interview lots of current and former police officers and law enforcement officials for the book. I thought it was important to get their perspective. And yes, that definitely colored my own perspective.
I do think it can be too easy to simply rail against cops as the enemy.  Yes, there are of course bad cops out there. And there’s a problem with the culture of policing. It’s hard to think of any profession more defensive, tightly-knit, and psychologically isolated than law enforcement. That’s not just bad for the communities where cops work, it’s bad for cops themselves. Imagine a job in which you drive around all day in a neighborhood that doesn’t particularly welcome you, and in which you only interact with other human beings to confront them, accuse them, or in response to conflict. That’s a pretty miserable work life. It also makes it a lot more difficult to do your job.
But this is all due to bad policy. Reactionary policing is the result of policies that grew out of the police professionalism movement. Stop-and-frisk, the overuse of informants, ubiquitous SWAT raids, aggressive enforcement of petty crimes and misdemeanors, and other problems that create such bad blood in many communities — these are all policies. They’re policies that can be changed. Even cultural issues like the “First Rule of Policing” can be addressed with better policies. Even something as seemingly benign as recruiting videos can have a big impact — you’ll attract a very different set of recruits when you pitch policing as public service than when you pitch the job as “getting the bad guys.”
It’s natural to want to shame and punish police officers who beat up a suspect, shoot too quickly, and commit other misconduct. But it’s far more productive if we can figure out how to curtail misconduct in the first place.
Q.  You have also been highly critical of junk science, particularly bite mark analysis and the coroners who love it. What got you started down this path?
A. When I was reporting on the Cory Maye case, I was struck by how powerful the testimony from the medical examiner was in convincing the jury that Maye was lying. It got me curious, about that particular medical examiner, and about expert testimony in general. It isn’t that all forensic science is junk, but too much of it is. And even the fields that have some value are usually vastly overstated in court. I don’t think most people realize just how little science is behind most expert testimony that’s passed off as scientific. It’s just jaw dropping to me that we’ve sent people to prison, sometimes to death row, based on the assertion of self-proclaimed experts whose methodology is not more scientific than palm reading or Tarot cards. I mean, if you say that according to your analysis, the defendant is the only person on the planet who could have left those bite marks or dropped that hair, the defendant is sent to prison based on your expertise, and then is later proven innocent, I would think that ought to be enough to forever disqualify you as an expert. But that isn’t what happens.
Even with some of the more legitimate fields of forensics, you have huge problems with cognitive bias and misplaced incentives. I mean, in some states, the crime lab analysts ultimately report to the prosecutor. In other states, it’s the state police or the attorney general. Even the most conscientious analyst is going to have problems remaining objective if the person who does his performance reviews is also the person who needs his help to win convictions. It seems like such an obvious thing. And yet we get scandal after scandal in these crime labs, and very little changes.
Q.  Given your one year of law school, you have a pretty good grasp of law and the complexity of legal issues involved in the various “solutions” to the myriad problems with the system. Do you wish now you had finished law school? Do you ever wish you could experience what it’s like being a criminal defense lawyer or prosecutor?
A. As I wrote earlier, I’m glad I went to law school, and I’m glad I quit. I don’t think I’d have the temperament or political outlook to be a prosecutor. I admire criminal defense lawyers, but I’m sometimes amazed at how they retain their sanity. Not for me. I love what I do, and it’s what I’m best suited to do. It’s a pretty lucky thing to do what you love for a living.
Q. Having been the unofficial chronicler of police abuse and misconduct, if you had a chance to give a lecture to a room full of cops, what would you tell them?
A. That’s a flattering description. I actually have given a lecture to a room full of cops, on a couple of occasions. But in the spirit of your question, I think the thing policing today needs most is empathy. Earlier this year I interviewed former Baltimore police officer Michael Wood. The thing I found most moving about his revelatory moment is that it was the result of him simply watching the residents of Baltimore’s high-crime areas for long periods of time while serving on a drug unit. For the first time, he saw them as people, not as potential threats, or possible criminals, or problems to be addressed. It was seeing them take their kids to school, run errands, go to work, do the same day-to-day things we all do.
That’s why the drug war and the trend toward more militarized police has been so destructive. There’s a reason why governments dehumanize an enemy before going to war. In a real war, empathy is the last thing you want to encourage. But of course policing is far removed from soldiering. Or at least it should be. We don’t ask police to obliterate foreign armies. We ask them to protect our rights.
And yet we’ve trained police officers to see themselves as soldiers, that it’s them against everyone else. We constantly tell cops that they’re under fire, that there’s a threat around every corner. We’ve had a couple generations of political leaders dehumanize drug users, drug dealers, and anyone who finds themselves caught up in the criminal justice system.
We need cops to see themselves as a part of the communities they serve. We need those communities to see cops that way, too. But we’ve embraced policies and rhetoric that make both of those things next to impossible.

Cross: Matt Brown, Staying Sane on Crazy Joe Arpaio’s Turf

Oct. 21, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield “crosses” Matt Brown of Brown & Little, who came of age as a lawyer online with his own blog, Tempe Criminal Defense.

Q. When you started your blog in 2008, you were one of the newly minted criminal defense lawyers who took to the internet. Was it a marketing move or was there a different purpose?

A. I can’t say that the idea of using it as a marketing tool wasn’t somewhere in the back of my mind when I first started blogging, as nearly every lawyer I met who was even close to my age seemed to find almost all of their private work online, but I was mostly interested in blogging as a creative outlet.

When I put up my first substantive post, I was a week or two shy of having been licensed for a year. I had found I had far fewer opportunities to write substantive things like motions than I had expected I would before I started practicing, and trial was an even less common occurrence. I didn’t have a lot in my day to day work to feed my creative side. Plus, I felt like I was discovering this gigantic new world of injustice. I thought my blog would be a platform for me to expose what I encountered to the world.

Q. Not long after you started, you criticized a local lawyer who was accused of bringing drugs into a jail. And the local backlash, particularly of the sort of who is this kid to question one of his own, was brutal. What was your takeaway from that mess?

A. At first, I was mostly just surprised that people around here read the blog and cared. Most people only went to my site to attack me after someone had posted a link on a forum, but I eventually discovered that some local lawyers had been reading for a while. Knowing that has had a big effect on the way I discussed local news stories. Things that wouldn’t bother anyone coming from a non-lawyer or someone far away are a lot bigger deal when they come from a local colleague. I’ve toned down many a post since then keeping that in mind, and I’ve reached out a few times to people before posting too.

The big shock was the reaction of those local lawyers in general, though, which made me really discouraged about the effectiveness of a lot of my colleagues. After all, they were mad at me because I said something they didn’t like about someone they believed was innocent, and all they did was insult me and rail against the concept of a lawyer blogging in the first place. I couldn’t help but think that, if that’s what the defense bar here is made of, I’m not surprised the government gets away with what it does.

Q. You responded to your “elders” at the local criminal defense bar by pointing out they missed the point. Did it help? Did they accept your position? Did they make you pay for your “insolence” after that?

A. I certainly never got an apology from anyone, but I wasn’t expecting that. They argued until they apparently got tired of it, and then I think they forgot about it entirely. I’m sure most of them still think they were right and that I’m a disrespectful little punk, but I can’t say that I ever suffered any real consequence for any of it.

That may be because the subject of the post later got in all sorts of trouble with the bar for a variety of issues, and then continued to practice law while suspended, compounding things. Although one criminal case against him got dismissed, he ended up being convicted of a felony in another. To some extent, it was really depressing to see how hard his friends fought for him when they thought he was framed (and probably was), but how most of them disappeared when it turned out he’d made some really big mistakes elsewhere. It made it easy on me, but it wasn’t exactly the sort of thing I’d expect from a bunch of defense attorneys.

The lack of any real blowback may also have been because of the people who were commenting. Knowing their reputations better now, some of them seem to blow up about everything, one to the point of having found himself in bar trouble for, among other things, physically intimidating opposing counsel who upset him. Some of them weren’t exactly people whose ire was going to affect a lot of people’s perceptions of me. On the other end of the spectrum was one commenter I met for lunch. He’s been a friend for a while now, and amusingly, he’s recently started trying his hand at blogging.

Q. You’ve “grown up” as a lawyer online, as reflected in your blog posts.  And for a few years, they grew increasingly cynical and pessimistic. Was this too much, too soon, as far as disappointment in the system?

A. Absolutely. Like many people, I went into criminal defense expecting I’d change the world. I had idealized notions of everything. I wasn’t prepared for just how unfair things were, and when I encountered one injustice after another and often failed to make a difference despite pouring everything I had into my cases, it was impossible to avoid becoming at least a little bit cynical.

Plus, I found there were real risks involved with being an optimist in this job. I spend a lot of time giving people bad news. Clients want to know what’s likely to happen, and that has to involve an explanation of the worst-case scenario. Being able to contemplate that and communicate it to the client is essential for them to make informed decisions, and it is alarming how often my most pessimistic predictions turn out to be the right ones. It’s a slippery slope, though, as too much pessimism leads to a sense of futility that in turn leads plenty of lawyers to let the quality of their work slip. It’s a bit of a balancing act.

Q. What impact, if any, did the constant barrage of bad criminal law news on the internet have on you?  Did this affect your perspective on what was happening in your own daily practice?

A. Reading the news about anything related to criminal law is typically painful, as it generally consists of poor reporting on infuriating stories. I wouldn’t say that the news affected my perspective in my daily practice as much as my daily practice has completely eroded any faith I once had in the ability of most reporters to get anything right.

Q. You’ve developed a strong empathy for your clients, more than just zealously representing them because that’s your duty. Did you come to criminal defense that way, or did that come with experience?

A. I picked criminal defense because I wanted to represent individuals facing the wrath of the government. It was the fighting the government aspect that actually drew me to it, but it took no time at all for me to be overwhelmed by what the individuals were experiencing. I was naturally inclined to take their side based on my dislike of the laws I was fighting and a healthy skepticism toward authority generally, but I found it hard not to really feel for my clients. The fact they so clearly relied on me no doubt played a part in that.

Also, the first time I saw someone in shackles wearing Sheriff Joe’s classic black and white prison uniform with a pink undershirt and pink slippers was a real eye-opener. It was that much more powerful because the guy was in custody for some sort of drug offense. Moments later, I first went to the inmate holding area. They were all wedged in there so tight they could hardly move. Every guy I met seemed totally reasonable, though. One inmate was in custody for a third personal possession of marijuana conviction. He was almost exactly my age, and the prosecutor had just given him an advisement on the record that he was facing a stiff mandatory prison term for a having a single joint in his pocket. It was obvious he was going to plead after hearing that, and the plea the prosecutor had apparently also put on the record that the offer was to a prison term. It horrified me. He also mentioned his daughter at one point, which made things worse.

I’ve had more experiences like that than I can recall. Each one drives home the fact that the career I’ve chosen is about my relationship with another person. My job is to affect their life for the better. Clients aren’t always easy, but behind every unfair thing the system does is a victim I’ve gotten to know personally.

Q. You’re no longer the “newly minted” criminal defense lawyer you were when you started writing. When you look back at some of your earlier observations, do you wonder what you were thinking back then? Do you see things differently now that you’re gained the wisdom of experience?

A. Depending on my mood, I either cringe when I read my old posts, or I’m pleasantly surprised to see that I wasn’t a complete moron back in the day. It’s mostly the latter, luckily, though I don’t think there’s a single thing that I’ve written that wouldn’t look fairly different if I wrote it today. My style has definitely changed. Many of my earlier posts were drier and even technical at times. I wouldn’t editorialize much at all. It was a product of me realizing that I didn’t have a lot of experience-based opinions people would want to hear.

I imagine that any wisdom of experience has mostly served to make my voice more confident and my analysis more thorough. I think my perspective in general has been pretty consistent. It doesn’t take long to see what’s wrong, but learning why and being able to articulate it is something that took a while to grow and where I still have a long way to go.

Q. You work in one of the toughest legal arenas around, where hatred of “illegals” is manifest and Crazy Joe Arpaio gets re-elected despite his antics. Have you ever felt that you were wasting your time, that it wasn’t worth the effort to give your clients 100%?

A. Feeling like I’m wasting my time is a daily occurrence. I’ve said before that I can’t even convince my clients that Sheriff Joe isn’t the greatest thing since sliced bread, and it’s true; they all love what he does when it affects someone else. He appeals to the worst in people, and those horrible qualities are the guiding force in public policy here. He even just started a new campaign entitled “Operation No Drug Bust Too Small.” Seriously. People are eating it up, and even his federal contempt proceedings seem to be turning him into a martyr in many circles. While there seem to be little signs of hope popping up elsewhere, we’re still going full steam ahead in the wrong direction.

It’s easy to feel hopeless, and if I only took into account the outcome, many times when I do put in 100%, it isn’t worth the effort except in a philosophical sense. That said, an ethical and moral imperative compels 100% every time, and I have a tough time imagining any good defense attorney would view it any other way. To do any less would be wrong regardless of the lack of any practical consequences.

Q. You’ve written a lot about facing an intransigent legal system, whether judges or court staff, who basically just don’t give a damn. What keeps you going?

A. It really comes down to a sense that I’m doing good work and that, as negative as I might be at times, it does make a difference. If I thought I really was just helping to provide the illusion of an adversarial system when the result is actually predetermined, I’d hang up the towel immediately. In that case, my professional goals would be far better served by options outside of the system, things like politics or protest and even civil disobedience.

I tend to be incapable of lingering on victories, but there are plenty. There’s also a lot of psychic value in simply guiding someone through a flawed process in a way that makes the best of a bad situation. It’s a tough job, but a rewarding one.

Q. You started out at the New England Conservatory of Music. Do you regret your decision to go to law school now?  If you had it to do all over again, would you stick with music.

I definitely don’t regret going into the law, though I have no doubt I’d have a lot less stress in my life if I’d stuck with orchestral horn playing. Nobody went to jail when I missed notes, thankfully.

I wouldn’t trade my experiences for anything. Plus, even if I could go back in time, I doubt there’d be anything I could say to myself that would’ve changed my mind. “Compliant” isn’t a word people often use to describe me.

Cross: Greg Prickett on Cop To Lawyer

Oct. 14, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield “crosses” Fort Worth, Texas, criminal defense lawyer Greg Prickett, who spent 20 years as a cop before turning to the law.

Q. You did 20 years “on the job” before you became a lawyer. What made you decide on a career in law enforcement in the first place?

A. I wasn’t planning on it, I was going to go to college and be a mechanical engineer like my father, but I got involved in a Boy Scout Law Enforcement Explorer program in high school and loved it.

Q. What did you love about it? Be real about this. What was it that made you say, this is what I want to be?
A. We did ride-alongs, and this was before the police were overly worried about liability. I was able to see police solve problems (sometimes by arresting people, sometimes not), and I got to see exactly what they do. It wasn’t like the TV shows, there was a lot of boredom, but there was also excitement. In the 2 or 3 years I did that, I rolled on everything from report calls, to heart attacks (and rode with the victim in the box to the ER, holding the oxygen mask while the EMT did chest compressions), to a traffic stop where the officer almost had to shoot the driver (who was having a flashback to the Korean War and thought we were North Koreans/Chinese). It’s hard to explain, but it gets in your blood. I just loved it.
Q. When you left the Academy, were you “retaught” the job by your training and senior cops?
A. Yes, and I did the same later as a field training officer (FTO). All the academy does is give you a basic understanding, in much the same way that law school and the bar give a baby lawyer the basic knowledge he or she needs to survive in a courtroom. In both instances, the baby lawyer and the rookie officer really don’t know what’s going on without guidance from a more experienced lawyer or an FTO.
Q. What was “retaught”?  What did you learn on the street that the Academy didn’t teach you? What did you learn on the street that was different than what the Academy taught you?
A. It’s hard to say. The academy gave you book knowledge. I was the valedictorian of my academy class, but it took working with my FTO and the experienced officers to really learn how to deal with people. I learned how to read people on the street, how to read a situation. It is a skill that no amount of book learning or classroom exercises can teach you. Some things that work real well in a controlled environment, like a technique called “speed-cuffing,” don’t work at all on the street where the subjects are not always compliant. You learn that even with lights and sirens on, people still don’t pay attention and will run into you, pull in front of you, etc.
Q. Did you believe that you were on the side of the good guys as a cop?  Who were the “bad guys” as far as you were concerned?
A. Yes, I generally believe that most cops are the good guys. For that matter, most people who either commit a crime once or as a habit are not “bad” people, they are just people. There are some, however, that are just evil. I don’t know how to explain it, but you can see in their eyes. Sociopaths, really, who don’t care about anyone but themselves.
Q. So there was no sense of “us against them”? The question isn’t whether “most cops are good buys,” but whether there was a culture of sides, good and evil, and you picked the good guy side.
A. The longer a cop is on the street, the more a sense of us against them kicks in. But it is not as black and white as you indicate, not as much as a good vs. evil, but a sense that the public does not understand what cops do and why they do it. We used to divide people into two groups, the victim a—holes and the criminal a—holes. The victims wanted to know why their brand new TV was stolen off of their front porch (right out from under the neon-sign blinking “steal me”) and why weren’t we dusting for fingerprints. The criminals were just that, burglars and thieves.
Q. Did you perceive your duty as getting the bad guys off the street, no matter what?
A. No. My job was first to protect people from harm. After that, it was my job to gather evidence so that the DA could make their case in court. It wasn’t my job to convict the bad guy.
Q. Were you really able to dissociate your job of collecting evidence from the ultimate goal of conviction? That seems nearly impossible to do?
A. I think most officers do have a difficult time with that. I know that many officers would get really upset if they were beat over a traffic ticket. I think that working for the lieutenant I mention below is the reason I could disassociate the two areas. While I was working for him, I would read proposed legislation and prepare a draft of what our position should be, which often was something that I disagreed with. An example was concealed carry—at the time it was not allowed in Texas and the police department opposed the bills that would have made it legal. I disagreed with that, but I wrote a position paper opposing it anyway. It taught me to look at both sides of an argument, and to look at what my role was in a dispassionate manner.
Q.  When you prepared your reports, talked to prosecutors, testified in court, did you “fill in the blanks” in order to make sure that the bad guys wouldn’t be able to find holes to beat the rap?
A. No.
Q. Did you know of any other cops who did so?  If so, what did you think about it?
A. I never knew of a cop in our area that would lie or embellish something on the stand. On the contrary, I saw a number of cases where the officer would tell the truth, knowing that it would result in an acquittal because it would raise a reasonable doubt. They got mad about losing, but they didn’t lie.
You also have to remember that cops are professional witnesses. We testify all the time and the more practice at something one has, the better one performs (normally). We knew to only answer the question asked, not the question that the defense counsel should have asked.
Q. As a cop, you got into a few “skirmishes” along the way, people suing you or filing complaints about you for alleged misconduct. Did being on the accused side of the fence change your perspective?
A. Not really, even going through a federal lawsuit did not change my perspective.
Q. Was it different when you were the falsely accused than when a perp claimed to be the falsely accused?
A. Not normally. In most of the cases where a defendant claimed to be falsely accused, they were not. We either had video or fingerprints or DNA, etc. I never had a case where I thought that the issue was even close, but I was lucky. I know a couple of officers in other departments that really stressed over that issue, making sure that they had the right guy.

In the federal lawsuit, the Texas AG’s office backed us all the way. At the first settlement talk, the AAG told the plaintiff’s lawyer that we would only settle if they walked away from the case with nothing. After the MSJ was rejected (there was a question of fact), the AG’s office took it to the Fifth Circuit on an interlocutory appeal. After the Fifth Circuit affirmed, but narrowed the grounds the way we wanted, the AAG played hardball at mediation (our counter to their request for $250K was $15K to settle the case). I felt confident the entire way through the trial, until the jury retired to deliberate. Then I stressed, wondering if those eight men and women were going to get it right (they did).

Q. Was there any point where you did something, whether use more force than you could have, escalated a situation when you could have de-escalated it, which you now realize would have been better handled differently?
A. Sure, but there were also points where I could have used more force than I did, including several where I would have been justified in using deadly force but did not. I tried to evaluate every situation after the fact to determine how I could improve.
Q. Did you ever stand by as a fellow police officer engaged in misconduct and abuse? What were the motivations for speaking out or keeping silent?
A. That question is very broad, so I’m going to focus on the use of force aspect of it. I never saw another officer who was with my department engage in behavior that I felt was inappropriate. I saw several where the officer was about to twist off on a suspect, but in each of those cases a sergeant or other officer also saw it and headed it off before it went bad. I saw one officer with another agency pepper-spray a handcuffed prisoner, and I talked to his sergeant about it. I don’t know what happened on the matter.
Q. Now that you’re a lawyer on the side of truth and justice, do you look at police officers differently?
A. Are they still the “good guys,” or are they only as good as the worst thing they’ve done? No, I still look at police officers the same, but you have to understand that most officers do not and did not have the same outlook as I did. Most police officers look at things from a black and white, good or bad, very binary perspective. I was lucky, in my second year as a police officer, I got pulled off of the street for a special assignment to help my lieutenant. The lieutenant, who had earned his law degree at night school while working full-time as a cop, was the legislative coordinator for the Dallas Police, and I was tasked with helping him. He treated it like an apprenticeship and taught me a lot, including how to Shepardize a case and to use pocket parts (there was no internet then). Working with him for that year gave me a whole new perspective on law enforcement and the criminal justice system.
Q. As a lawyer, do you use your knowledge of police culture and tactics to challenge a cop on the stand?  Do you have any qualms about it?
A. Absolutely I use my knowledge of police work and tactics. As a defense attorney, it is my job to zealously represent my client to the best of my ability. It’s my job and I have no hesitation or qualms about it.
Q. You knew you were going to catch a lot of grief for your post on Cleveland Police Officer Timothy Loehmann’s killing of Tamir Rice. Do you think that people just don’t “get” the decisions a cop has to make when faced with a threat?
A. Yes, I knew that most people were not going to take the same position as I do on the legality of the shooting. I think that it is impossible for the average citizen to really understand what police officers have to do in those types of circumstances. That is what I was referring to when I said that the public does not understand what cops do and why they do it. As Crawford noted on p. 5 of her report, the focus needs to be on the weapon and the actions, or the officer dies.
It’s clear that the general public does not understand the dynamics of an armed or potentially armed encounter, based on the reaction to my encounter with a guy with a hacksaw. I’ve also been at arms-length from a burglar in a building holding a metal bar over his head (and didn’t shoot him), held my gun next to a driver’s head while his hand was about six-inches away from a butcher knife he had been reaching for, held many people at gunpoint while making felony arrests, but didn’t shoot any of them, nor feel the need to shoot any of them. In none of those cases was there a clear feeling that I was in fear of my life—which I felt without any question in the case with the hacksaw.
The point that most people don’t understand is that while they have all the time in the world to second-guess what officers do, the officer has to make a decision right then, instantly, and then to live with that decision. Had I been faster on the draw that day over 25 years ago, I would have had to live with the consequences. I have no doubt in my mind that I would have been cleared, and there is no doubt in my mind that I, or any one else, officer or civilian, would have been justified under the same circumstances.
Q. While I know you fault Office Frank Garmback for pulling up too close to Tamir Rice, is there anything that Loehmann could have done that would have ended the confrontation without anyone dying?
A. I don’t think that Loehmann had any options that were viable. Look at Crawford’s report where she discusses the simulation used by the FBI. If you wait for the subject to draw the gun, you’re dead. I do fault Garmback for driving right up to Rice, who was the suspect. He left Loehmann with no options, no time, and no space.

Cross: Judge Richard Kopf on Cops Who Lie

Oct. 6, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield “crosses” Senior United States District Court Judge Richard G. Kopf about the impact of video on the judiciary’s realization that the historically trustworthy police officer isn’t always so trustworthy.

Judge Kopf:

Three caveats:

I can’t speak for other judges.

I am old. Younger judges are far more likely to be skeptical of the police than those of us who grew up with the mythology of the 1950s.

As a federal judge, and save for interdiction stops on the Interstate highways involving a bunch of dope and the Nebraska State Patrol (that uses in-camera video), most of my cases are not dependent upon the credibility of one cop. Moreover, my motions to suppress are first heard by a tough and experienced Magistrate Judge, so I make fewer credibility determinations than you might expect.

________

Q. Ten years ago, in the typical one-on-one swearing contest between cop and defendant, what were the chances the defendant would prevail?

A. The cop would normally prevail. By the way, I seldom saw defendant’s take the stand and testify under oath. Thus, I infrequently saw “the typical one-on-one swearing contest.”

Q. To what do you attribute the fact that defendants didn’t testify at suppression hearing?

A. Probably, the failure of defendants to testify at suppression hearings was motivated by defense counsel’s fear that such testimony could later be used to enhance the defendant’s sentence if the defendant was found to have lied. Moreover, such testimony might cause the government to refrain from offering a cooperation plea agreement later on. Finally, counsel may have believed that a trial would take place even if the suppression motion failed and thus exposing the defendant to cross-examination prior to trial was not worth the risk that such testimony could be used during the trial. In this regard, defense counsel instinctively (and properly) fear exposing defendants to the rigors of cross-examination unless absolutely critical.

Q. In the past few years, having seen videos proving that cops lie, can be abusive, shoot without justification, has this changed the equation?

A. Yes. It has changed my perspective, particularly when I deal with a local cop from a small police force. Overall, I am generally more skeptical.

Q. Do judges view the credibility determination as a matter of going with the odds?

A. To a degree, I view credibility determinations as going with the odds. But, and this is important, I have always known enough about life and probabilities not to rely too heavily on “odds,” and this is particularly true now after the recent events to which you have referred.

Q. What will it take for judges to believe that police are not always the paragons of virtue they claim to be?

A.  At least for me, that realization has hit me hard rather late in life. As you have noted above, the events of the past few years, captured on video, are powerful proof that cops can be remarkable con artists.

Q. What can the defense do today when there is no video to prove misconduct or abuse has occurred?

A. Dive deep into the facts. Give me as much of the background facts as you can. The more the better. Get me information about the defendant and his or her background. Same with the cop. Try to put me at the scene.

While it is dangerous, think hard about putting your client on the stand.

Q. Given that police are almost invariably more experienced and well-trained at testifying, while defendants may well have a less than savory background, what can a “dirty” defendant do when a pristine cop, who claims to have “no motive to lie,” lies?

 As I have said, the more I know about the background facts the more I can evaluate the likelihood that a “pristine” cop is lying. For example, assuming a “dirty” defendant does not testify, if the claim is that there was no consent to search the auto, and it was a cold and snowy day with the wind blowing hard out of the north, and the cop failed to obtain written consent or make an audio or video recording of the oral consent, then the “pristine” cop’s assertion that the defendant consented becomes suspicious, at the very least. As in other things, context is often critical.

Q. If you believe that a police officer or agent has lied under oath in your courtroom, is it sufficient that the prosecution lose the point or should the officer face more severe sanctions? If so, what?

A. No it is sure as hell is not sufficient. A cop who lies should be subjected to a perjury prosecution. I should be the one to publicly refer the matter to the prosecutor. Furthermore, I would not hesitate to publicly “ban” such a cop from ever appearing before me again.