Apr. 6, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Alex Bunin, founder and Chief Public Defender of Harris County, Texas, and former Federal Defender for the Northern District of New York.
Q. You went to college at Bowdoin, as northeast liberal a school as it gets, and majored in philosophy. What was the plan going in, since there aren’t a lot of really good philosopher jobs around these days? Was this intended as the basic liberal arts education, to be rounded out by a more goal-oriented education later, or was this just a matter of getting through college and figuring it out later? Did your philosophy education guide you going forward? Did you dress up as Nietzsche for Halloween? And how did you like school in Maine?
A. I went to Bowdoin College for two reasons. First, I grew up spending every summer in Maine and had good memories of living near the ocean and forest. Second, the rest of my childhood was spent in New York City public schools, and so Bowdoin, with its largely affluent prep school student body was a real contrast.
So, I guess there was not really a plan, but my parents believed in the value of a liberal arts education. I majored in philosophy because I wanted to discuss the big questions of life, and it required the least number of hours to complete. I never dressed up as any anti-Semitic historic figure, including Wagner, whose music I otherwise enjoy. I did like attending college in Maine, except in February when the campus became a skating rink, even inside the dorms.
Q. After Bowdoin, you went to law school at South Texas College of Law, about as far from Bowdoin as one could get in almost every conceivable respect. What were you thinking? What made you decide to put Kierkegaard behind you and Clarence Darrow in front? Did you have a burning desire to be a lawyer, or was this just the next step for a guy who didn’t like the sight of blood? Did you go in thinking criminal law was for you, or did it come to you in law school?
A. There is a gap of almost two years between college and law school. After Bowdoin, I took a job as an assistant buyer for Lord & Taylor in Manhattan, living at home with my family. I realized I was very poor at buying or selling anything, but I enjoyed the healthy employee discount. When my college roommate ended up in Houston, I moved down to experience the bust in oil patch in the early 1980’s.
After a couple of jobs in the food and beverage industry, I applied to law schools. I got into a few, including the inaugural class at CUNY in Queens, but settled on South Texas as somewhere I could work and attend classes. I had some idea that I wanted to be a lawyer, but I had not previously known any. I have nothing against blood, but I could not stomach organic chemistry. I think I settled on criminal law after my first year when I realized what the alternatives were.
Q. During law school, you clerked for Richard “Racehorse” Haynes, one of the best, and always colorful, criminal defense lawyers in the country. His explanation of pleading in the alternative is a classic:
Say you sue me because you say my dog bit you. Well, now this is my defense:
My dog doesn’t bite.
And second, in the alternative, my dog was tied up that night.
And third, I don’t believe you really got bit.
And fourth, I don’t have a dog.
What was he like to clerk for? Any pearls of wisdom you picked up from Racehorse? Did working for a legendary criminal defense lawyer make you want to do defense too, or want to do trusts and estates? What kinds of demands did Racehorse make of you? Was this one of those experiences that follow you through your career? Did he make you walk the dog, assuming of course, he had one?
A. I was hired as a clerk by Haynes’s firm Haynes & Fullenweider, which had half a dozen or so lawyers, when I was in my final year of law school. Besides Haynes, there were several excellent criminal defense lawyers there that I worked for, but I had occasional contact with him.
Once, I was sent down to the courthouse to meet him with a file and introduce him to his client. The case was tried that morning and the client was acquitted. I remember working on an appeal from a case he had tried in federal court. His cross examination of a government informant went on for about a hundred pages, much of it about the dark color of the witness’s pants. Finally, the exasperated judge tried to intervene: “Mr. Haynes, what difference does it make what color pants he had?” The response: “Judge, those were burglar’s pants.”
He could cross examine a witness so long they would ultimately forget their own name. Of course, all the best stories about Haynes are in books. He represented the richest man ever tried for capital murder in Texas and got an acquittal twice. Once for the shooting of the client’s step-daughter in front of an eyewitness and the second for planning the assassination of the trial judge in his divorce case, recorded on audiotape. That is not even the most famous book. That one, “Blood and Money,” was made into a television movie with Sam Elliott and Farrah Fawcett. Racehorse had a birthday this week. He is 89. I don’t remember whether he ever owned a dog, or if he did, whether it bit people, or was insane…
Q. After law school, you started a solo practice in Houston. How did that come about? Were you dedicated to criminal defense at the time? Was this a product of necessity, or did you decide that you weren’t interested in working for someone else? Did you ever consider getting a job as a prosecutor?
A. I interviewed at the Harris County District Attorney’s Office. I figured that if they were coming down to the law school anyway, it did not hurt to ask. It paid a salary and had benefits, something no criminal defense lawyers were offering me. The two women that interviewed me were career prosecutors and later judges. All was going well until we got to the question about the death penalty. I had to truthfully admit that I opposed it and could never ask for it. A week later I got a letter rejecting me. I save it to this day.
Solo practice was by necessity, because I wanted to practice criminal law and nobody would hire me. I took court appointments and was mostly supported by my wife, Nancy, a lawyer who was employed as a law librarian. Court appointments in Harris County were still a pretty dirty business then, generally requiring lawyers to kick back money to elected judges as campaign contributions. One oft-appointed lawyer famously slept through parts of his client’s capital murder trial.
Appointed work was generally a volume business where lawyers, paid by the setting, spent most of their mornings wandering between courtrooms resetting cases. Until the passage of the Texas Fair Defense Act of 2001, this was fairly standard business. I avoided this treadmill early on when I was mentored by Edward Mallett, an excellent criminal defense attorney, who later became President of TCDLA and then NACDL.
Q. Everybody has a story about their first trial, whether they went in scared to death or overconfident, or whether they did something incredibly brilliant or stupid. What about your first trial? How did it go? Were you the lawyer you thought you were? Were you better or worse? Was there something, looking back at it now, that makes you cringe? What part did it for you, voir dire, opening, cross or summation?
A. I have never been overconfident about anything, particularly the practice of law. I am sure I was more nervous before my first trial than I am today, but not by much. The more you know, the more you realize that you don’t know. I am embarrassed to say that I cannot remember which one was my very first trial, but I think it was a DWI. I did not win and I was unfamiliar with all the science and techniques that make DWI/DUI practice so specialized today.
Basically, it was what I expected — difficult and terrifying. Cross is the hardest for a beginner because it requires planning and technique that are not intuitive. I know I tried several cases before I attended the National Criminal Defense College in Macon, GA, and learned I was doing much of it wrong. Any new lawyer needs some intensive advocacy training like NCDC, Gideon’s Promise or NITA. You just do not get that in law school, even with advocacy courses. I also did many appeals. Back then, you could still win appeals. I probably got reversals in almost half my cases. The current reversal rate is about three percent.
Q. In 1993, you became an assistant federal defender in Beaumont, in the Eastern District of Texas. What made you leave private practice for public defense? How tough was it to make the transition from being in charge of your practice to taking on whatever cases you were given? How tough was the Eastern District for criminal defense back then? Are you glad you chose that route? Would you make the same choice again?
A. I had been practicing with Mallett for several years when Patrick Black established the Federal Public Defender’s Office for the Eastern District of Texas. He is based in Tyler (still is the FPD), and needed someone in Beaumont. I wanted to be a public defender and I wanted to be in federal court. It was a great job. For a year, I was the entire Beaumont office. I represented about 150 defendants and tried 12 cases to juries. It was a busy place.
The “War on Drugs” was in full swing and almost anything could get to federal court in EDTX. I tried a one-rock crack case against the actual United States Attorney for the Eastern District of Texas. I liked practicing there. It was like a small town. Everyone knew everyone and you had to keep your word. One AUSA that I liked would simply hand me his entire blue-bound ATF file as discovery and tell me to copy it and return it when I could. I am glad I went to Beaumont and would do it again.
For the first six months, Nancy, I and our two young sons continued to live in Houston. I drove 90 miles to Beaumont each way. Interstate 10 is completely straight and I could go 90 mph because I knew all the troopers and deputies. Eventually, we moved to Beaumont and rented a house. We stayed there until I was selected to open a new federal public defender office in the Southern District of Alabama. I started there in 1995 in Mobile where I had to rent office space, buy furniture and equipment and hire lawyers and staff. It seemed like the right thing to do at the time and it was. We enjoyed Mobile. It is like a smaller, quieter New Orleans.
Q. In 1999, you were appointed the Big Guy, Federal Defender for the Northern District of New York and Vermont, charged with establishing the office. Not only were you a long way from Texas, but creating a federal defenders office where none existed must have been a daunting task? How did you pull it off? Not only did you find the lawyers, establish the office, but you managed to earn an extraordinary reputation for imaginative approaches in public defense. Was there resistance to creating the office? Did the local criminal defense lawyers, panel or private, welcome you? Were the judges happy to have a public defenders office in their district? Were you still able to try cases, or was that now a thing of the past given your administrative duties?
A. It was daunting, but not for reasons I anticipated. After Mobile, I knew how to build a public defender office. It was the geography that made this job difficult. First, I did not realize how much trouble I was creating for my family. Nancy and my sons had never lived up North. I just based it upon my transition to the South, which was no big deal for me.
Nancy was a legal aid lawyer and the executive director of the Mobile Fair Housing Office. She left that for me to go to a place where she did not have a law license. She worked for the New York legislature and legal aid. The boys had to go to new schools. It was not a simple transition. Additionally, I had two separate districts, with several working courthouses in each. This meant branch offices in two districts that had completely different cultures. They were two cultures that did not especially respect one another.
I remember a Sheriff’s deputy in Rutland that called me a “flat lander,” even though the state where I lived had 46 peaks higher than anything in Vermont. The New Yorkers were no less condescending about Vermont. Regardless of the differences, managing branch offices that are hours apart is an act of faith. All you can do is hire good people and hope for the best.
There was little resistance from the local bars. Few lawyers in either district did many federal criminal appointments. We were like the cavalry coming in to help. The judges wanted us too. Under the Criminal Justice Act, they must request an office be created and add it to their plan. Nobody can force it on them. To this day, the Southern District of Georgia still refuses to have a public defender. I tried cases in both districts. In Vermont, I tried a federal capital murder. I also did many cold record appeals. My favorite appeal was a “made” wise guy from the Boston mob whose case was like a cross between The Departed and The Sopranos. In 2006, Vermont and Northern New York split and each now have their own separate Federal Public Defender.
Q. You’ve served on tons of committees, been in leadership positions with bar associations, and you’ve been given a slew of awards for your work and your contributions to public defense, including the Thurgood Marshall Award for Capital Litigation. Do you enjoy working with committees? Are you a bar association kind of guy, or is that just part of the job of creating a federal defenders office and making it work? A lot of trial lawyers bristle at the idea of committee work, yet you’ve managed to excel at both. How do you do it?
A. I do not especially like working on committees, but they can accomplish big projects. Typically, if there is a specific skill I can bring to a committee, then I can successfully contribute. I have always been good at organizing continuing legal education. I am less good at sitting around brainstorming with a roomful of lawyers that like to hear their own voices.
In my current job, I spend much more time in meetings with judges, prosecutors and other criminal justice officials. Sometimes, it is important just to be in the room with them. Harris County and Texas both have excellent criminal defense lawyer associations. Many of my assistant public defenders serve on their boards and committees. I was on the NACDL board for one term. I enjoyed it, but I felt there were other things I needed to do.
Q. You also taught at Albany Law School, including during the black days of the 2007 crash. Have law students changed? Do you see them carrying the fight forward in the trenches? Are they tough enough to handle the punches they’ll take as criminal defense lawyers, and show up the next day to get punched some more? For those of us concerned that maybe, just maybe, they have gotten a little too entitled and narcissistic, do we have good cause for concern?
A. I am not one of those middle-aged guys who believes that kids today (anyone under 40) are any less motivated or smart than any other generation. In my opinion, most law students of any era have a higher opinion of their potential than is reasonably warranted. I am also not much into discipline. I leave that to cops and prosecutors. Some complain that I am too nice, but I feel most people get beaten up enough in the world without my adding to their misery.
I try to teach and lead by example and not by carrots and sticks. That goes for law students and employees. I have hired several lawyers fresh from law school and they have all been motivated and hardworking. I think the bigger problem is that there are few opportunities for new lawyers to do public defense in an environment where they get proper mentoring and support.
In 2012, I got a DOJ grant to send new private lawyers to Gideon’s Promise, established by MacArthur “Genius” Fellow Jon Rapping. It is really the only place that trains lawyers on all aspects of doing public defense. All 20 of the lawyers that we trained are still doing public defense in a manner that makes me proud.
Q. In 2010, you returned to Houston to create the Harris County Public Defender’s Office out of nothing. How was it to come back to good food? What was the reaction of Houston lawyers to the establishment of the first public defender’s office? Were the judges happy to have you, or were PDs in the way? What was the biggest obstacle you had to overcome to make this office happen? Is this it for Alex Bunin, or should we be ironing up a nice black robe with your monogram on it?
A. Nancy already returned to Texas to take a job with the public defender service that represents state prisoners. One son was in college and one was graduating from high school. It was at that point where I learned about the Harris County position at a good time. Still, I would not have accepted the job if I did not believe the funding and support were there to make it work.
Harris County received a grant over four years from what is now called the Texas Indigent Defense Commission. The grant stipulated that public defenders will get salaries equivalent to the district attorney’s office and that caseloads will not exceed standards approved by the ABA. Although there was some initial reluctance from judges and the criminal defense bar, I think most of that has been overcome by the realization that we are doing good work for our clients, assisting the bar generally, and that our footprint is actually pretty small. We take less than ten percent of all appointed cases. The rest go to private attorneys who must meet minimum qualifications set by the courts.
The biggest obstacle was the imaginary fear that all criminal defense would be turned over to a giant incompetent socialist machine. I guess we are a socialist machine, but small and competent. A report on our office by Council of State Governments Justice Center found that compared to private assigned counsel and retained lawyers, that we tried more cases, got more acquittals, got more dismissals, and got fewer custody sentences. We have received awards from the State Bar of Texas and the Houston Lawyers Association.
It was good to come back to Houston. The Italian food in Upstate New York is excellent, but the rest of the choices …meh. Houston is one of the best food cities in the United States, and I know food. Although I plan to stay here, it probably will not be as a judge. I like the legal analysis, but the primary qualification is that you must be willing to judge others. That would not be my favorite part. I think John Gleeson and Nancy Gertner are good examples of excellent federal district judges, but they both retired young, so that must say something. But then, if President Trump/Cruz/Clinton/Sanders needs me to fill the SCOTUS spot, I will consider the offer.