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Cross: Douglas Berman, The Final Sentence

June 15, 2016 (Fault Lines) — Ed. Note: Scott Greenfield crosses Doug Berman, the Robert J. Watkins/Procter & Gamble Professor of Law at The Ohio State University’s Moritz College of Law, and the proprietor of Sentencing Law and Policy.

Q. You graduated Princeton in 1990 with a degree in philosophy. Why philosophy? Was this about a liberal arts foundation for the future, or was there a plan to be the Nietzsche of Jersey? How did that prepare you for the rigors of law school and, later, the practice of law? Were there any alternatives coming out of Princeton other than law for your future?

A. My favorite class my senior year in high school was a philosophy course, and so I signed up for a number of Philosophy (and Politics) electives during my first year at Princeton. I quickly discovered that I liked that there was, relatively speaking, a lot less reading and a lot more critical thinking in my philosophy classes than in other classes.  Also, in the spring of my frosh year at Princeton, I took an upper-level Ethics course, and my reading/thinking/writing in this course felt “practical” in light of my own long-standing interests in contemporary politics and public policy.  When I got a good grade on my very first paper in this upper-level Ethics course, I concluded that majoring in Philosophy would be a good idea.

My choice of major was influenced by my interest in possibly pursuing a career in law.  There are a handful of lawyers in my family — although, interestingly, my father gave up practice of law only a few years after I was born, and I only saw him as a middle-school teacher while growing up. I heard from a variety of folks that a philosophy degree would prepare me well for law school, and I wrote a lengthy “Junior Paper” during my penultimate year at Princeton on different philosophers’ perspectives on the death penalty.

Because there are also many teachers in my family, and because I so thoroughly enjoyed my study of ethics in college, I did give some real thought to pursuing a Ph.D. after completing my undergraduate studies.  But I also concluded it would make more sense (both logistically and economically) to first pursue a law degree and think about other advanced degrees only if law study did not quite work out.

Q. From Princeton, it was off to Harvard Law School, driving right past New Haven on the way to Cambridge. Based on your senior thesis,  “Killing, Letting Die, and the Right to Noninterference,” it seems as though you already had sentencing on your mind. Did you go in with an interest in criminal law? Were there other areas of law that intrigued you? Did you plan to put your law degree to use in the trenches, or was academia the goal?

A. I definitely found myself, both in college and law school, to be much more drawn to so-called “public law” topics than to “private law.”  I was actually somewhat surprised to find interesting “business-oriented” classes like Contracts and Property and Taxation and Corporations.  But, perhaps in part because I was at HLS during a period when Critical Legal Studies was a hot topic, I came to believe that too much of standard law school “canon” was committed to helping students know the legal rules that matter most only to those who have the most money.  (This struck me especially during the extended study of “estates in land” in my 1L Property course; I found remarkable we were required to learn the intricate rules for how rich landowners could pass on real property to their families while the basics of family law was relegated to an upper-level elective class.)

My interests in criminal law and family law were, ironically, cultivated by the lack of attention given to these topics I noticed while serving as an editor on the Harvard Law Review.  I particularly recall spending an afternoon in the HLR offices looking through a huge stack of article manuscripts submitted for consideration for publication.  Reviewing the titles and abstracts of hundreds of manuscripts, I was struck by how many articles were focused on so many different commercial law topics and how few addressed the areas of law that most “average” people encountered on a regular basis.

Because I always had academic interests, and especially as various mentors confirmed my impression that being a law professor was a “good gig,” I definitely had an inclination early in my law school career that I should seriously consider pursuing a career in legal academia.  But, I also always believed that I ought to give legal practice a chance.  For that reason — and because I was still seriously courting my NYC-based college girlfriend (and now wife) — I turned down a research assistant opportunity with a legendary professor in Boston during my first law-school summer to work as a summer associate in a very small white-collar defense firm in Manhattan.

Finally, as for other topics of interest in law school, I was also drawn to Intellectual Property.  I had a general interest in theater cultivated at my “artsy” high school and in English classes I took in college.  I recall thinking that IP topics involved an interesting intersection of public policy concerns with business interests; if I had to “sell out” to pay off my school loans, I thought to myself, being involved in intellectual property litigation seemed to me likely much more interesting than putting together corporate transactions or real estate deals.

Q. After law school, you did two stints as a Second Circuit law clerk, first for Judge Jon Newman and then for Judge Guido Calabresi, both heavy hitters on one of the busiest circuits for major criminal cases in the nation. What did you take away from Judge Newman? And Judge Calabresi? Your time there was post-Mistretta, while the Sentencing Guidelines ruled the nation. What was the attitude toward the Guidelines? Did the judges embrace them, or was it begrudging acceptance? Did they regret having to adhere to sentences that a few years earlier would have been excessive outliers? Why no Supreme Court clerkship after the Circuit?

A. My two years clerking on the Second Circuit for Judges Newman and Calabresi were incredibly formative with respect to my legal interests and perspectives. What really struck me during these years was how differently my bosses approached the tasks and craft of judging even though they had relatively similar political commitments and judicial philosophies.

I have often described Judge Newman as the consummate jurist and Judge Calabresi as the consummate academic: the group of clerks working with and for Judge Newman would often flag this or that issue tangentially related to the case we were working on, and Judge Newman would always explain that the court could and only should address that issue if and when it were to arise in another future case; the group of clerks working with and for Judge Calabresi would often receive incredibly insightful lectures from Judge Calabresi about how a seemingly simple case actually had connections to the entire history of tort law or of the unique role of lower federal courts in constitutional litigation.

As you note, the federal sentencing guidelines were just getting their “sea legs” when I was clerking, and my very first big case working for Judge Newman involved an appeal by federal prosecutors of a decision by legendary District Judge Jack Weinstein.  Judge Weinstein had refused to apply a mandatory minimum statute based on the quantity of drugs involved in a sting operation: he wrote a massive opinion explaining why, in light of the historical importance of mens rea, it was improper to have drug quantities alone trigger enhanced sentences regardless of the defendant’s awareness of the amount of drugs involved in the offense.  The more conservative judges on the Second Circuit panel hearing the appeal were eager to rule emphatically that mens rea should have no part in sentencing determinations turning on drug quantities; but Judge Newman, appreciating the historic and philosophical importance of mens rea, authored a nuanced concurrence that sought to leave open the possibility that, in the right case, mens rea considerations might be relevant to the application of some sentencing enhancements.

In this case and others, Judge Newman helped me better understand why he had long been an advocate for federal sentencing reform, but then became a leading critic of the particular form of reform that the Sentencing Guidelines represented.  Similarly, Judge Calabresi was quite engaged by the prospect of interpreting the Sentencing Guidelines on appeal in a purposeful and progressive manner in order to ensure district judges would have adequate discretion to consider individual factors appropriately at sentencing.  Conversations with both Judges Newman and Calabresi helped me not only appreciate various flaws of the Sentencing Guidelines, but also the ways federal judges could (but too often failed to) interpret the Guidelines to minimize the impact and import of those flaws.  These insights provided the foundation for my first major law review article, in which I argued that federal judges had largely failed to seize the important opportunities that the Sentencing Reform Act provided for being more actively involved in developing the rules which govern federal sentencing.

As for why no Supreme Court clerkship, you will have to ask the Justices on the Court in the mid-1990s.  I applied repeatedly to the Justices, but never even got invited to interview for a position.

Q. After Judge Calabresi, you went Biglaw at Paul Weiss. Was that the direction you wanted to take? Was it a money decision? Your work included IP, business torts as well as criminal law. Aside from criminal, were these areas of interest for you? Did you consider staying at Paul Weiss and going for that corner office? If you hadn’t gone academic, would you still be at Biglaw today?

A. I still had school loans to pay off after my clerkships, and the BigLaw prospects of making six figures (including two clerkship bonuses) was hard to turn down. In addition, I had spent two summers at Paul Weiss and had been really impressed with the people I had gotten a chance to work with there.  I had a sense that I could learn a lot from the lawyers at Paul Weiss, and I did.  It certainly helped my learning curve that, during my two years at the firm, I worked on average probably about 75 hours per week.

I very much enjoyed my work in the litigation department at the firm; I always felt challenged and I had a terrific “docket” of interesting cases.  But, especially because I was living in Connecticut and thus had a lengthy commute, I did not like the nature of the work/life (im)balance while at the firm.   My wife and I were eager to start a family, but I could see how hard it was for my colleagues at the firm to balance BigLaw work responsibilities and parenting commitments.

In short, I concluded pretty quickly that BigLaw was not going to be a long-term fit for my long-term personal commitments.  I also figured out pretty quickly that the BigLaw experience was not a perfect professional fit either, but this was in large part because I found so much of my work so interesting I kept wishing I had more time (and could bill a client) for writing critically about what I was doing and learning.

For example, I was involved in interesting patent and trademark litigation for a major client, and I was especially intrigued by the unique forms and fora in which this litigation was taking place. I recall wishing I could take a month off to write an article about what was wise (and not so wise) about how this litigation was directly and indirectly impacted by its setting.  But, of course, neither the firm nor its clients wanted to pay for me to do academic-type writing about my experiences.  In this way, though I was enjoying my BigLaw lawyering experiences, I came to realize that I would enjoy even more the day-to-day work of being a legal academic.

Q. During your time at Paul Weiss, you were able to devote significant pro bono efforts to the representation of a Texas death row prisoner. How did that come about? Was that part of a pro bono program offered associates at Paul Weiss? How did you end up working with a Texas convict? Did this representation influence your views on the death penalty? Do you have sufficient faith in the system to believe that it’s capable of sufficient certainty to put a person to death?

A. Perhaps the chief reason I decided to work at Paul Weiss when considering BigLaw options was the firm’s serious commitment to pro bono work, especially in the criminal justice system. I had gotten a lot of experience with the federal criminal justice system during my two years clerking on the Second Circuit, including a few cases dealing with federal habeas procedures, but I never encountered a capital case while clerking.

Once at Paul Weiss, I expressed interest in helping out with any capital cases. I was “lucky” enough to get a chance during my final few months at Paul Weiss to work closely with a terrific senior associate trying everything possible to preclude the scheduled May, 1997 execution of a condemned Texas defendant who was indisputably intellectually disabled.  Though I have always been something of a death penalty “agnostic” when it comes to efforts to condemn and execute the “very worst of the worst” murderers, I felt very confident arguing in any and every forum that it should be unconstitutional for a state to seek to execute anyone who, by virtue of their personal disabilities, could not by definition be among the “very worst of the worst.”

My experiences trying and failing to spare the life of Terry Washington not only influenced my views on the death penalty, but also fostered my peculiar disaffinity for being focused on criminal defendants claiming they are factually innocent and have been wrongly convicted.  In the Terry Washington case, there was a hint of a last-minute suggestion that my client was factually innocent, but I sincerely did not want to seriously contemplate this possibility. I was convinced that my client’s execution, due to his intellectual disability, was an injustice even if he was in fact fully guilty of murdering his coworker.  The notion that he might have all along been factually innocent would connote an injustice on a scale I do not like even to contemplate.

On the ultimate question, I actually do have faith that our criminal justice system can operate in a manner that leads only to the condemnation and execution of the “very worst of the worst.”  But this could happen, I suspect and fear, only if and when there was a genuine and collective interest among all involved criminal justice participants to condemn and execute only a handful of indisputably guilty mass murderers like Ted Bundy and Timothy McVeigh. The unfortunate modern reality seems to be that one group of involved criminal justice participants sincerely hopes to preclude forever any executions, while another group of involved criminal justice actors seeks to capitally condemn a sizeable number of killers.  I believe these dueling forces, exacerbated by systemic class and culture biases that infest all our government institutions, now largely account for why our modern capital punishment systems are still administered so dysfunctionally.

Q. In 1997, you began teaching at The Ohio State University’s Moritz College of Law. What made you decide to leave Paul Weiss to go teach? Did you consider practicing criminal law? Had you already decided that your scholarship interest would be sentencing? Why? What aspect of sentencing did you find so intriguing as to make it the focus of your scholarship?

A. As mentioned before, while in practice at Paul Weiss, I often hankered for time off to write in a more scholarly setting about cases I was working on.  In addition, during my clerkships, I had forged a relationship with Professor (now Dean) Marc Miller, who was a founding editor of the Federal Sentencing Reporter.  Based on a few short articles I wrote for FSR while clerking, Dean Miller invited me to be a junior editor of FSR, which became one of my pro bono activities while at Paul Weiss.  And during this period, the Supreme Court handed down its biggest pre-Booker ruling about the Sentencing Guidelines, Koon v. United States, dealing with judges’ departure authority.  Thinking a lot about the various nuanced opinions in the Koon case, and particularly about the various ways in which debates over sentencing law and procedure did not always break down on traditional liberal/conservative lines, enhanced even more my interest in finding more time to think deeply and write critically about the still-developing federal sentencing system.

This background prompted me to enter the teaching market by selling myself as someone who could and would teach and write on criminal justice topics.  But, because I had done IP work during my clerkships and at the firm, I also sold myself as someone who could and would teach and write on copyright, trademark and patent issues.  (Somewhat amusingly and annoyingly, I was asked during one teaching interview whether I had strategically selected my topics of interest/expertise based simply on the two hottest legal topics of the mid/late 1990s.)  I was lucky enough to receive an offer to teach at Ohio State and also at another well-regarded law school, and it was clear that I would be expected to spend most of my time on criminal subjects at Ohio State while I would be expected to spend most of my time on IP subjects at the other school.  Though I was impressed by both schools and thrilled to have these options, I just felt in my heart that a criminal justice focus was a better fit for me.

During my interviews for the job at Ohio State, I often talked about how many interesting philosophical and practical issues arose at sentencing, and I indicated that I would be interested in eventually developing a specialized upper-level sentencing course.  Amazingly and wonderfully, the folks at Ohio State said that, after teaching the standard first-year Criminal Law course during my first fall teaching semester, I could and should devote my first spring semester to developing and teaching “my” sentencing course.  I was both amazed and scared that I could, and now would need to, develop a whole new course out of whole-cloth during my very first year of teaching.  This unique challenge provided me with the unique opportunity to review and think critically about what should be part of the modern sentencing law canon, and my interest in and excitement for teaching and writing about sentencing law and policy grew even more in the process.  And, perhaps as a fitting way to tie up this early chapter in my academic career, I got the main idea for my second major article while I was teaching about departure authority and the Koon case in my very first sentencing class.

Q. In 2004, you started your blog, Sentencing Law and Policy, which has become the universally acknowledged source for sentencing law. What made you decide to start a blog in the first place? Did you anticipate that it would end up being cited by courts? You started SL&P right before the Supreme Court decided Booker, which was pretty much the biggest thing to happen to sentencing in a generation. What did that mean for SL&P? How did Booker affect your scholarship, given that it changed everything?

A. After developing my own materials for my sentencing course, I reached out to Marc Miller and other colleagues to see if we might work together to develop a sentencing casebook.  That book came to fruition in 2003 under the title Sentencing Law & Policy, and we were committed in our publishing contract to create a website as a companion to our new text.  Because I was then spending a growing amount of time on-line reading legal blogs like How Appealing and The Volokh Conspiracy, I suggested to my coauthors that we should consider creating a dynamic blog rather than a static website as a companion to our new casebook.  My coauthors thought we still needed a traditional website, but they encouraged me to play with a blog on my own.  Thus, in the first part of 2004, I started developing my blog using categories that synced directly with the 11 chapters of the Sentencing Law & Policy casebook.  My initial thought was that I would add a few posts with new primary materials each week, which would be linked to specific casebook chapters, and thereafter users of the text could employ my blog as a kind of on-line supplement.

But then, much to my good fortune, roughly six weeks after I started blogging regularly, the Supreme Court issued its remarkable and somewhat unexpected Sixth Amendment ruling in Blakely v Washington in late June 2004.  Blakely dealt formally only with the Washington State sentencing guidelines, but the blockbuster ruling seemed to portend the eventual constitutional demise of the federal Sentencing Guidelines.

Recognizing Blakely’s potential impact, and fueled by an array of remarkable district court opinions applying Blakely in various ways to the federal system, I went from blogging a few times a week to blogging multiple times a day.  And, my blog became a kind of de facto sentencing reporter throughout the summer of 2004 as each branch of the federal government struggled to figure out what Blakely had to mean for federal sentencing law and practice.  Among the exciting and surprising developments was a special filing by the Solicitor General in August 2004 which urged the Justices to come back early from their summer break to hear and resolve exactly what Blakely meant for the federal sentencing system.

Though the Justices did not return from their summer vacations early, they did agree to hear the Booker case at the start of the October 2004 Term. I had a grand time reviewing and analyzing on my blog the briefing and oral arguments in Booker, and then the Justices gave me one more present by issuing a dense and arguably schizophrenic dual opinion in January 2005.  This ruling, of course, declared the Guidelines unconstitutional as a mandatory sentencing system, but also resurrected the Guidelines in an advisory form.  The quirky and unprecedented nature of this ruling all but ensured that there would be another critical round of divergent district and circuit court rulings about how to properly apply each part of the Booker ruling. I consistently felt excited and honored to have an “on-line front row seat” to the development of modern federal sentencing jurisprudence. In addition to daily blogging, I authored nearly a dozen law review articles and extended commentaries in a roughly two year period to try to explain and analyze what I saw as the meaning and impact and import of Blakely and Booker.

Q. A great many of your posts at SL&P serve as sentencing law aggregation rather than commentary. For practitioners, your thoughts on sentencing issues would be very much appreciated. Why not more commentary?  As one of the most knowledgeable scholars on sentencing in the country, that deep dive into analysis would be enormously helpful. Is there a reason you don’t go there?

A.  During the period of great jurisprudential uncertainty after Blakely and Booker, a much larger percentage of my posts were devoted to commentary and “deep dive analysis.”  During that period, I had a lot of new things to say, and I felt I was in a unique position to advance and improve the development of a brand new jurisprudence.  But, over time, I have come to see only limited value in repeating, over and over again on my blog, the same core analytic points I have set forth repeatedly in the past.

When there are significant new developments in the sentencing field, such as when Congress seems close to enacting major federal sentencing reforms or when the Supreme Court sets forth some notable new constitutional jurisprudence, I will generally jump back into the commentary game for a period.  So, for example, after the Supreme Court’s big recent Eighth Amendment rulings in Graham v. Florida and Miller v. Alabama, I did a series of posts analyzing each of the opinions in these cases and forecasting the follow-up issues likely to divide lower courts soon thereafter.

In addition, I often consider my editorial decisions about what to aggregate/highlight on my blog to be a certain kind of on-going meta-commentary.  In my selection of materials to highlight on the blog, I am always thinking about what strikes me as the most interesting and important issues for the short- and long-term future of state and federal sentencing law and policy.  I feel strongly that highlighting long-term issues to keep an eye on may be one of the best services I can provide to busy practitioners necessarily focused on the short-term realities of their current cases and clients.  (That all said, if and whenever a reader indicates to me in the comments or by e-mail that they are eager to hear my take on some case or controversy, I will always try to oblige.)

I will say that I sometimes consciously shy away from adding strong commentary right away concerning breaking stories because I always want to make sure all my personal commentary is fully informed, thoughtful and reflective.  Both in the traditional and new media, I find myself distinctly frustrated and disappointed when seemingly smart people author what I consider dumb commentary because they were too quick to say something provocative about an issue or a case before they reviewed information essential to be fully informed on that issue or case.  (The recent hullabaloo over the seemingly too lenient sentencing of Brock Turner is a great example of a case I am not eager to comment about until I first had the chance, at the very least, to review the original presentence report and the full sentencing transcript.)   

Q. You seem to try very hard to steer between the defense and prosecution perspectives in your posts, and yet you’ve ended up on the receiving end of staunch partisans like Crime & Consequences’ Bill Otis. What happened with Otis? Do you get the sense that there is no middle ground, where one can try to be thoughtful about sentencing theory without being overtly partisan? What is it about sentencing that makes otherwise intelligent people get their back against the wall?

A.  On the political and criminal justice spectrum, I think of myself as a libertarian-leaning moderate.  My posts just tend to reflect that perspective rather than being the result of a conscious effort to steer between partisan extremes.  That said, I have a particular affinity for calling out and questioning the rhetoric and reasoning of those embracing partisan extremes.  So, I will at times criticize some of what I see as extreme positions and claims made by some death penalty abolitionists, and that will often subject me to considerable criticisms from some folks in that community.

Similarly, I will at times criticize what I see as extreme positions and claims made by Bill Otis representing the “tough on crime” crowd.  And because Bill and I both seem to enjoy “mixing it up,” and both seem eager to always get in the last word, we will often “go at it” at great length in some comment threads.  But I consider Bill a genuine friend, and I greatly appreciate his willingness and eagerness to so aggressively assert his perspective. I am hopeful (and somewhat confident) that these feelings are mutual.

As for middle grounds, I think we all actually occupy in the sentencing arena in the vast majority of cases.  I think there is considerable consensus in general about what kinds of crimes and criminals should get mild, moderate or severe punishments.  But every so often, a particular case or issue will get linked to other partisan social issues and then “all hell” can break loose (especially on the interwebs).

Interestingly, and I think tellingly, when I challenge my students and others to express their views on the “right” sentence in any complicated case, there is often a lot of reservations and uncertainty about just what should be called the “right” sentence.  But, in contrast, it seems a lot of folks become very confident and very vocal whenever they believe they see an obviously “wrong” sentence.  Because I am myself never fully confident that I uniquely know what must be the right sentence in any case, I also find myself disinclined to quickly assert that I uniquely know what must be the wrong sentence in any case.

Q. Having written the hornbook on sentencing law, getting your second endowed chair professorship, and being the acknowledged sentencing scholar on the internets, what’s next for you? Are you a professor for life? Dean someday? What about a seat next to Judge Calabresi? What’s the next step for Doug Berman?  And will SL&P last forever?

 A.  In part because I have become somewhat depressed by some of the enduring politics and practices of modern sentencing reform, I have of late been giving a lot more attention to the (right-now-less disappointing) politics and practices of modern marijuana reform.  So, rather than regularly looking to change my role in the academy by seeking, say, to become a Dean, I am generally more inclined to change the substantive focus of my teaching and research and service.  Also, as my current Deans and also my family could confirm, I am not very good at dealing with administrative matters in a timely way.  For that reason and others, I am not so confident I would be a very good Dean.

I am always happy to take calls from any government officials inclined to ask me to become a public servant again, and I do think I might be able to make a useful contribution to an appellate court.  But all my mentors were right when they said being a law professor was a very “good gig,” and I am a strong believer in the “if it ain’t broke, don’t fix it” philosophy.  Ergo, I could certainly see myself as a professor for life.  And I genuinely suspect that my blogs will live on in some form as long as I have a job that benefits from my blogging.

Cross: JoAnne Musick, Criminal Law From Both Sides Now

June 1, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Fault Lines contributor, Houston criminal defense, juvenile and family lawyer, JoAnne Musick.

Q. After graduating college, you went to work in the “real world” before going to law school. Did your work experience make you want to go back to school? Was there a burning desire to be a lawyer, or did law just happen to be the place you landed? Most lawyers go straight to law school from college, and never experience the real world as a non-lawyer. Did you learn anything that carried forward into your legal education?

A. The “real world” was something of a necessity for me. I worked my way through college and used my employer’s college program to earn tuition reimbursement: the higher the grade, the greater the reimbursement. Thankfully, they allowed me to adjust my work hours for full-time work comprised of Monday, Wednesday and Friday so I could attend college all day Tuesday and Thursday. I had always thought I would go to law school but fell in love with my undergraduate accounting and finance classes.

Derailing my plans for law school, I worked as an accountant and sat for the CPA exam. However, I soon grew tired of the monotony. I switched my focus into computer programming and technology. Luckily, the major grocery retailer I was working for had just the fit and I moved to their IT department, where I planned and installed Texas’ first satellite system for credit card processing at the register. Slowly but surely, I again grew tired of the predictability of my work. Sure, there were new projects, but they were really all the same.

In the interim, my dad had gone back to school for his undergraduate degree. At his graduation party, he announced he would go to law school. Thinking he couldn’t possibly be serious (at his age), I joked, “If you go, I’ll go.” A couple days later my dad brought me an LSAT application and the rest is history. He and I would start law school together.

Though I didn’t quite see it at the time, my real world experience actually led me to law school. Having tried out accounting and technology, I learned that while I was good at both, my heart lay elsewhere. Heading into law school, I had a great advantage over my classmates. I could relate to the stories behind the cases we read and prepared for class. There was a human element to each and I found myself studying the fact pattern where most students seemed to focus only on the legal analysis. Additionally, having competed for various projects, promotions, and assignments, I felt I had a better grasp on the competition among students.

Q. You went to South Texas College of Law in Houston. Was it your plan going in to practice criminal law? What made you want to be a lawyer? What made you decide that, of all the practice areas out there, criminal law was the one for you? Was there another practice area that caught your interest?

A. Interestingly, when I started law school, I planned to capitalize on my accounting background and head into a tax practice. Professor Wheeler changed that forever. Criminal law 101 was the most exciting class I had. I loved everything about it. All the students warned, don’t take Wheeler’s classes. He’s too tough, they told me. To the contrary, he was the push I needed.

I liked being challenged. I realized that was what made the difference: accounting didn’t challenge me, technology didn’t challenge me. Law made me think! Over the next 3 years, I took every criminal class offered and every class Wheeler taught. Of course, I took the tax classes also. They were easy with my background and could help boost my GPA. But the criminal classes had captured my heart and soul, and that’s where I would be headed.

Q. Upon graduation, you went to work at the Harris County District Attorney’s Office, where you interned during law school. What made you decide to become a prosecutor? You spent five years as a prosecutor. Did you worry about the possibility of convicting an innocent person? Did you see defendants as humans? Did you see your job as being “more right” than your adversary?

A. Becoming a prosecutor would give me a chance to be a trial lawyer. Through law school, I learned the courtroom was where I wanted to be. No desk job for me. I had done that and needed more. Not to put all my eggs in one basket, I applied at the D.A.’s office as well as the courts of appeal. With both offers on the table, the reality that prosecuting would have me in trial won the day. Most folks I talked with agreed: the office would give me the trial experience that just wasn’t available elsewhere.

Unlike some of my colleagues, I worried about convicting the innocent. I worried about officers lying and stretching the truth. My life experiences gave me an outlook much different from others. If I believed an officer lied, I dismissed the case. If I had doubts about guilt, I dismissed the case. Doing what I thought was right generally served me well. Of course, there was that one time I offered probation to a 17-year-old kid in a burglary case. If you don’t practice in Harris County, you wouldn’t know that was a capital sin. Office policy dictated that probation could never be offered in a burglary case. Everyone knew this. Everyone routinely stood in front of the judge with a wink and recited office policy while the judge assessed probation anyway. It’s just the way it was done.

Well, I straight up offered the probation. And, of course, the defendant jumped at the opportunity. Little did I know, later that day, the complainant had called the office to inquire about the case. When she learned of the probation, she made a complaint. The complaint reached the first assistant. The first assistant reached the bureau chief. And, it trickled down from there.

Funny thing is, before it actually reached me, there was this new prosecutor orientation going on. My dad was just starting with the office and was in orientation. Apparently, much of orientation consisted of one simple message: never offer probation in a burglary case. Someone had done so, and there would be hell to pay. My dad couldn’t wait to tell me the story of how some idiot offered probation. Of course, I was that idiot. At least I had a heads up before the powers-to-be found me! Though it was truly the right thing to do, from that point forward I joined the ranks with a wink and let the judge hand out probation.

Q. While a prosecutor, you handled public integrity cases. That side of the prosecution can be at odds with other parts of the office. Were you comfortable doing public integrity prosecutions? How did your colleagues, the cops, view you? Did you feel like a traitor to the cause or doing the critical work of keeping government honest? What did you learn about cops and public officials that everyone should know?

A. Prosecution was never about us versus them for me. In my mind, it was about accountability. If a crime was committed and it could be proven beyond a reasonable doubt, with all my cards on the table, then a conviction would be had. I had to be accountable. The officers and witnesses in my cases had to be accountable. If not, the prosecution failed. Having been around cops all my life, I knew there were good and bad. My family knew it too. Finding the bad cops was part of making the system better. So, I was quite comfortable handling public integrity cases. If I could do my job honestly and ethically, they could too.

I’m certain there were cops who didn’t like me because of my assignment. At the same time, I didn’t care. To me, if they didn’t like it, they had the problem and likely just preferred to cheat. The officers who knew me didn’t hold it against me.

What did I learn about cops and public officials? More than I expected. I knew there were cops who pushed the envelope. I knew there were public officials who played politics and bent the rules. What I didn’t expect was the level of cover-up that I found. Officers were willing to turn a blind eye for their friends. But worse yet, the department was willing to hide and conceal complaints and internal investigations. At one point during my tenure in public integrity, we issued a sweeping subpoena and threatened a search warrant just to uncover years of internal files related to official misconduct. The sheriff’s department purported to forward all criminal investigations and complaints to public integrity for review. The reality was hundreds were never mentioned or forwarded. We gathered boxes of files and analyzed them. Many detailed criminal conduct for which the statute of limitations had already expired. It was shocking and sickening to know so much had gone unreported, allowing officers to remain on duty with no discipline.

Q. In April, 2003, you left the Harris County District Attorney’s Office and started your firm doing criminal defense and family law, and you’re now board certified by Texas in criminal and juvenile law. Where does family law fit into your background? As difficult as criminal law can be on a defendant and his family, the practice of family law can be brutal. What do you do when you have kids wrongfully taken from their parents, their home? How do you deal with the fact that you can’t give a child back those days of his life stolen from him?

A. Having served two rotations in the juvenile division at the D.A.’s office, I had a soft spot for kids. I wanted to help them. I saw too many being swept into the system. No one seemed to take it seriously. Defense lawyers told kids, “it’s just probation” and “you can seal your record later.” The theory was, it seemed, a little probation wouldn’t hurt anyone. They would be better for the experience. They would get help and resources needed to succeed. Nothing could be further from the truth. So many kids were just being railroaded. And, of course, when they came back, punishment would be removal from their home. I knew I wanted to combat the philosophy and change the course, at least one client at a time.

Turns out, focusing on juvenile and criminal law wasn’t enough. The family side was tearing families apart. Protective orders were issuing that prohibited families from being together. Allegations, sometimes false, were being thrown around for leverage in divorce and custody cases. It seemed most lawyers focused on one or the other, criminal or family, and the clients could be substantially harmed.

A client hired me to help him get possession and access to his child, just a few months old. It turns out, his “family” lawyer advised him he should agree to the protective order because he could save some money and not piss off the judge. His “criminal” lawyer had negotiated a diversion in his assault case, not realizing the diversion would also impact the custody case. In Texas, with a protective order in place, The client could not legally be named a managing conservator of his new child. Though the judge had stricken the language adding the child to the temporary protective order, when he and his lawyer agreed to the final, the child was gratuitously added back. Since he agreed, the judge granted it this time. With a diversion in place, and a protective order, the client was banished to only supervised visitation with his son. Paying a service to watch him interact with his child.

It was cost prohibitive for the young father and thus visitation was sparse. It took years to undo the damage. Here, a young 20-year-old father wanted to be part of his son’s life. He wanted to pay child support. He wanted a relationship. He wanted to be a dad. Yet, the system did everything it could to keep him distant from the bonds created at such a young age. Today, I’m excited when I see photos of him and his son together at the zoo or over the holidays. He is a great dad.

The tragedy is that my client will never get back that time he missed. Children in detention will never get back the time away from home. Our families are not better for the system. Yes, there can be situations where the space and time are necessary, but in the vast majority of cases, families are better together than apart. That’s why family law became an important part of my practice.

Q. Now for the obligatory first jury trial question. Everybody has a story about their first trial, whether it’s a huge victory or a crashing defeat. Which one is yours? Were you the lawyer who knew it all, or the lawyer who knew nothing? Looking back now on your first trial, what would you have done differently knowing what you know today?

A. I knew nothing! Sure, I pretended to know how to ask questions. I pretended I wasn’t shaking and terrified. But, inside I was a mess. It was a terrible case to try. Of course, I didn’t know any better at the time. I had a complainant who was certain the defendant stole her necklace. She called the police, they investigated, and the defendant was charged. It was really simple; cut and dry. I’d put the complainant on the stand and everyone would believe her, right? Wrong!

Well, the jury might have believed her at first. I did ok. I got her to tell her story. What I didn’t count on was the other side of the story. She did well on cross-exam. She maintained her story, and that was good, right? Wrong! She was unwilling to admit even the most basic of common sense explanations offered up by the defense. She wouldn’t admit she and the defendant had a dating relationship, which is how he had access to the necklace. The further the cross went, the more I knew I had no clue what I was doing. I hadn’t foreseen the cross. I hadn’t foreseen the defense. Of course I lost. But, it was a great lesson in not always taking a complainant, or any witness, at their word.

I was the first to admit I knew nothing. I immediately started watching every trial I could. Picking the brains of every prosecutor and defense attorney who would talk to me. Knowing what I know now, that’s where I should have started, but as the story goes, it’s trial by fire at the D.A.’s office. The day you start working you could go straight into trial, and I did.

Q. Since your first trial was as a prosecutor, let’s leap forward to your first jury trial as a defense lawyer. You already had experience in the courtroom, but was it the same? When it’s all cross, no direct, did you find it to be a very different experience? What about the judge and jury; did they react the same to you as defense lawyer as they did when you were prosecutor? What was different?

A. Defense lawyering is nothing like prosecuting. I had the confidence of courtroom experience. I understood procedure. But, it’s an entirely different beast. Cross-examination must be honed. You don’t have the luxury of the “what happened next” line of questioning. Defenses are integrated into cross and possibly even your own witnesses. Cracks in testimony have to be exploited. Being a prosecutor, even having tried over 100 cases, only slightly prepared me for being a defense attorney.

In my first defense trial, I learned I had to battle not only the prosecutor but also the judge. When we took our morning break during testimony, I stepped out to talk to a witness. When I returned to the courtroom, my client’s family asked me why the prosecutor was emailing the judge. Utter shock and sheer panic set in. I had no idea what to do. I ran into the hall and quickly found a few experienced defense lawyers and ran it down. They helped me make a record.

The judge feigned surprise and offense at my questioning of the court and prosecutor. But, it turns out, my client’s family was correct. So much for the advent of computers in the courtroom: from counsel table, during testimony, the prosecutor was emailing back and forth with the judge about a motion I had filed, a motion that we were due to take up on the lunch break. Ultimately, the record was complete and we headed back to trial. From that point forward, I wouldn’t catch a break. Not a single objection was sustained. Yet, every prosecutorial objection was gold. Looking back, I think the lesson was supposed to be not to mess with the judge. However, I only learned just how far a judge (and a prosecutor) will go to help the state.

Q. The transition from prosecutor to defense lawyer can be rather jarring, having spent your formative legal years with your head wrapped around getting the bad guys, only to find yourself sitting next to the accused. Did you struggle with the transition? Did you come to learn that the accused weren’t as bad as you thought? What was it like sitting across the desk from a new client whom, a little while earlier, you might have tried to put in prison? Was there an epiphany that defendants may be innocent? Were you just as comfortable defending a guilty client as anyone else?

A. Everyone says the struggle is real. For me, there was no struggle. Perhaps it was because I was lucky. I was able to pick and choose my clients. Perhaps it was my time in public integrity that helped. I didn’t look at defendants as bad guys. I questioned everything and everyone. Defending the guilty client was easy. They deserved a fair trial, a zealous defense, and a chance to beat the system. Beating the system is how we hold the system accountable. The difficult part was defending the innocent. And there are far too many of them.

On a capital murder case, I was hired by the family. They spoke of his innocence, yet, surely they didn’t know what he and his brother had actually done. I met with my client; he maintained he knew nothing about the robbery and murder. Of course he was lying. He didn’t trust me, and I couldn’t blame him. Eventually he would come around. After a few jail visits, I came to realize he just might be telling the truth. A little investigation and I knew he was innocent. Proving it was another thing.

It took almost two years, but we followed every lead the cops passed up. We interviewed every witness. Luckily, we found a string of robberies in the same area, with similar motives and descriptions. We chased down each of those cases and suspects. We found our man – the man who pulled the trigger in the capital. The one eyewitness who selected my client in a photospread looked at a new photospread we compiled. She immediately realized she had picked the wrong guy the first time. Now she saw the real defendant. She was horrified at her prior mistake. On the eve of trial, we decided to share most of our information with the prosecutor. The prosecutor listened. She offered us a plea to probation on a robbery instead of capital murder. A deal that is hard to refuse.

Yet, my innocent client refused and remained in jail. That prosecutor was transferred and the trial was continued. The new prosecutor was sure my client was involved even if not the triggerman. In an effort to tie my client to the shooter, the prosecutor made a visit to the shooter, who found himself in jail on another matter. The shooter remarked it had taken them a long time to tie this one up. They were floored. We had solved what the cops didn’t. They had charged an innocent man and his brother. We had found the shooter and his friend. Our client and his brother were released and new charges were filed. It was gratifying yet scary. There was no way I could let an innocent man be convicted of capital murder.

Q. You are the current president of the Harris County Criminal Lawyers Association (which I believe is your second stint as president?). It’s one of the most active local criminal defense bar associations around. What makes HCCLA work? What keeps Houston lawyers working together when other local bar associations do little besides giving themselves awards?  What are the problems you’re facing, such as the tough time so many criminal defense lawyers are having with keeping their practice thriving?

A. HCCLA works because we are diverse. At some points in our history, HCCLA was criticized for being just a social organization. At other times it was indigent defense oriented and alienated the retained lawyers and vice-versa. Over the past couple of decades we have strived to be comprehensive. Recognizing both plays equally important roles in the courthouse and for our clients. Working together, the bar can be better. It’s still a fine line to walk but maintaining a balance that serves all makes it work. We also have a core group of leaders that remain involved. We are active and outspoken. We are not afraid to point out problems and confront judges, prosecutors, and other officials. We want to be part of the solution and not the problem. So, while we may criticize them, we strive to offer resolutions as well. This has garnered us a seat at the proverbial table, so to speak.

Criminal defense lawyers are still the lowest paid of all lawyers. Whether appointed or retained, most are struggling to survive and prosper. HCCLA looks to improve indigent defense funds when we can, but also to assist the local bar by providing low cost quality education to strengthen our bar. When we create better lawyers through training and mentorships, we give them the confidence to grow their businesses. It’s tough, on the one hand, when we advocate for pretrial release and lower bonds, our colleagues who handle predominately appointed cases could lose appointments. Yet, for every client out of jail, there is a greater chance he returns to work and can hire a lawyer. Either way, the work will be there.

Q. You’ve sat on both sides of the courtroom, and are coming up on 20 years practicing law. What’s next for you? Would you like to become a judge? Would you consider public office, even running for District Attorney some day? What’s the next mountain to climb for JoAnne Musick?

A. For now, I’m happy where I am. Having bounced around the real world before law school, I finally found the thing that is not monotonous or boring. Every day is an adventure and I adore my work. I would consider public office if it didn’t involve politics. As long as politics play a role, I’m happy where I am.

In fairness, I’ve had several inquiries about taking a juvenile bench or a criminal bench. I am flattered and intrigued. I know I would be fair (doesn’t every judge think they would be?). But in all seriousness, I have seen both sides. I have fought hard for both. Not all actions should be criminalized and not all criminals should be incarcerated. Not all defenses should prevail, but neither should all prosecutions. I am about helping people as much as I am about solving problems. As such, I find myself thinking, “if it were up to me…”. If I were the judge, what would I expect? What would I do? I find myself torn between both sides, and I think that is what makes a good jurist. Someone who can truly see both sides, is not enamored by either, and can take an action that is true rather than political.

Outside of a bench, I want to continue helping people reach solutions for themselves and for the system. We can do better, and I’m happy to lead where I can. That’s one of the reasons I’ve twice undertaken the role of president for HCCLA.

 

Cross: Mark Bennett, Senior United States District Judge (N.D. Iowa)

May 25, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses prolific scholar and writer, Mark W. Bennett, Senior United States District Judge of the Northern District of Iowa.

Q. Unlike the typical Supreme Court justice, you received your bachelor’s from Gustavus Adolphus College and your J.D. from Drake University Law School. What were your plans? Was it always your intention to become a lawyer? Was there a goal in mind, to save the world, perhaps, or did law seem like a good thing to do? Did you plan to spend your career in Iowa or did you see national prominence in your future?

A. I am still laughing that you would compare the educational background of a small town country lawyer like me to a “typical Supreme Court justice.” Actually, I was on the steps of Langdell Hall on my spring break during my first year of law school, after hitchhiking out East. While striding up the stairway to see the inside of the building (of a law school that had rejected my application) the first student I saw was carrying the same casebook and Gilbert Law Summaries on Contracts that I had used. Just a few years ago, I was there, again, speaking about my work on implicit bias in the judicial system. I often get a good chuckle out of the fact that I have either been a visiting jurist in residence or a guest lecturer at the law schools that rejected my application.

My plan from age 8 or so was to become a civil liberties and civil rights lawyer. My mother died when I was young, and I was raised by an African American nanny, Tessie, who I was very close to. I was deeply moved by the discrimination she and her family encountered in Minnesota in the 1950s.  It left an indelible impression. Tessie was never bitter in our talks, but never hid the truth from me either. In high school, I volunteered at the Minnesota Civil Liberties Union.  When it was time to go to law school, I chose Drake because, at that time, there was no staff counsel for the ICLU in Des Moines.

Four years later, in addition to having started my own firm upon graduation, specializing in civil rights, civil liberties, and constitutional litigation, I became assistant general counsel to the ICLU.  One of my partners was GC. We built a terrific, small firm, based in part on our early decision to go into major debt to buy desktop computers in 1977, off an IBM promo tape. We were the first law firm in Iowa to do so. We attracted wonderful clients and cases that allowed me to practice in many federal courts.

I always thought of myself as a super, hard-working, civil rights lawyer dedicated to the lifelong mission of striving to be the best I was capable of and giving voice to those in need.  I experienced many talented trial lawyers on the other side of my cases.  They often became my mentors. I never, once, had another professional ambition or goal.  I never thought about being a judge.

 

Q. You started out practicing employment law, though you’ve written that you were a “proud member of the CJA panel from the week after passing the bar exam.” Did you find a connection between employment and criminal defense? Why did you join the panel? If you had a desire to defend the accused, why not specialize in criminal defense?

A. The connection, to me, was being an advocate for an underdog who needed a strong, creative, passionate, and doggedly determined voice to help. Practicing in both areas helped develop complementary skills, like learning how to effectively cross-examine a witness in a criminal case without the luxury of depositions, interrogatories, and often no witness statements. Besides, there were a number of terrific criminal defense lawyers in Des Moines and a much larger void of civil rights lawyers.

Today, the most highly skilled lawyers I see in the courtroom are lawyers in the criminal arena or civil lawyers who were former AUSA’s or public defenders. I also joined the panel because $10 an hour for out of court time and $15 an hour for in court time was more productive than playing miniature golf with my partners as we were building the firm and had time on our hands early on.

I was very proud to be on the CJA panel and, even after our firm lured away a terrifically talented AUSA to join us and I gave him all of my retained criminal work, I remained on the panel until the day before I was sworn in as a S. Magistrate Judge. I felt I had a professional obligation to do CJA work. It helped hone my skills, especially in investigating the facts without formal discovery. It taught me how to manage civil cases without the necessity of engaging in tons of discovery and the inevitable abuse and time consuming nonsense that comes with it.

Q. At the ripe old age of 29, you argued, and won, your first case before the Supreme Court of the United States, an age discrimination case, Oscar Meyer v. Evans. Most lawyers never get to appear before the Supreme Court, and yet you were there three times before you were 32. What was it like to shoulder such responsibility so early in your career? Did you think about the fact that an errant response could sink an area of law for a nation? Were you lucky, or that good? Did you take it as normal to be arguing before SCOTUS?

A. Being in my twenties and naive actually had some beautiful advantages. I didn’t find the responsibility of representing clients in the U.S. Supreme Court any more or less daunting than representing any other client. Three days after passing the bar, I was appointed to represent my first client, M.S. Spurling, a woman in her 40s. The state was trying to civilly commit her because she politely, but firmly, tried to deposit a bottle of cheap wine and a loaf of bread in her checking account at the old Iowa Des Moines National Bank. I learned from an experienced lawyer, who had done several civil commitment hearings, that the “referee” did not have the proceedings transcribed, use a burden of proof, or many other safeguards that I believed were constitutionally required.

I brought my own tape recorder to the hearing to make a record, raised something like two dozen constitutional objections to the proceeding, and summarily lost. Ms. Spurling was scheduled to be moved many hundreds of miles away the next day to a state hospital. I immediately went back to my office and typed a Great Writ, a habeas corpus petition, with my two-finger, hunt and peck technique. We hadn’t, yet, been able to afford a legal secretary. I knew I would not finish before the courthouse closed. When I finally finished, I called a well-known state court judge at his home whose name I had often seen in the local paper. He graciously allowed me to come to his house and granted an ex parte TRO and appointed me to serve it on the proper defendant– who was also listed in the white pages. By 9:30 p.m., that night, I served him.

At the habeas hearing a few days later, Ms. Spurling was found to be neither dangerous to herself nor others, and was released. We eventually won a successful challenge in federal court to Iowa’s civil commitment statute because of numerous constitutional deficiencies. To me, Ms. Spurling’s case was just as important as any case I have had since. In terms of luck or being good, I have always found the harder I work, the luckier I seem to be.

I worked extraordinarily hard at keeping abreast of new case law in my practice areas, which enabled me to raise cutting-edge issues. I felt privileged and honored to argue as an officer of the court for any client in any court from small claims to the U.S. Supreme Court. Sure, having my father watch me argue in the Supreme Court was a thrill.  Little did he know, or ever realize, he had witnessed one of the worst arguments ever made there.  Nothing about the arc of my career has been “normal,” so that’s not a concept I ever think about.  I focus only on doing my very best at each task before me – the only professional goal I have ever had.

Q. You took a job as a United States Magistrate Judge in 1991, not long after Mistretta was decided and the nature of federal criminal practice fundamentally changed under a new paradigm. What were your thoughts about the Sentencing Guidelines back then? What impact did it have on your work as a Mag.? Did it influence your bond decisions, knowing that defendants who a few years earlier might have faced only a few years at worst, could now be looking at a lifetime in prison? Were you comfortable in your new role as a Magistrate Judge?

A. I was exceptionally fortunate to have been selected as a U.S. magistrate judge from a very, very strong field of wonderfully talented lawyers and judges. An aside, but an important aside to me, is my reason for leaving my firm. My wife had just given birth to our twins at barely 26 weeks. My son, David, was 2 lbs. 3 oz. and died after 8 hours. My daughter, Sara, was 1 lb. 14 oz., and went down to 1 lb. 4 oz. On her tenth day of life, Sara started very slowing gaining weight. She was in the hospital for many months and had only the most remote chance of survival with a virtual certainty of having both profound mental and physical disabilities. My days and evenings with her in the neonatal ICU made me realize that I had placed way too much importance on my practice, and that it would be a healthy thing to give it up and find more contemplative work.

I wasn’t really qualified to do anything else, so I told my partners that if the current magistrate judge was elevated (there was an Article III opening and it looked like that may be in the works) that I would apply. They laughed and said my client list of the ACLU, the Hare Krishnas, the Unification Church (Moonies), the Christian Nudist Church (“Go naked if the Holy Spirit move you”), two draft dodgers, a slew of inmates, the Socialist Workers Party of America, and the fact that I had recently sued the President, the Pope, and the nine justices of the Iowa Supreme Court in three different cases in federal court, was not exactly the path to a federal judgeship.

Being a federal magistrate was a great job, the front-line of the federal judiciary. The SRA really did not influence my bond decisions. Most bond decisions were easy, only 5-10% were weighty. I was comfortable and very happy in my new role. I liked making decisions and found it much less stressful that being a lawyer. You make a decision and move on — there was not the collective weight of stress that increased with every decision a lawyer makes in a case. I found I was able to let each decision go after working my hardest to make the right call.

Q. You were appointed at a district court judge by President Clinton in 1994, less than 20 years out of law school. Was that the dream, to be a federal judge? Were you ready to assume the responsibility that came with the robe? What made you choose to sit in judgment rather than stand in the well and fight? Was it as much fun as some think to be the big guy making the hard decisions? Did the decisions look as hard from the bench as they do from the well? Harder, maybe?

A. Being a federal district judge, or any judge, was never a dream of mine – except as explained above.  It was never anything I thought about, aspired to be, coveted, or thought would ever happen. Why would one waste time thinking about lightning striking?

While I was only 19 years out of law school, aided by my Midwestern work ethic, I had packed a ton of experience into those years, with cases against excellent DOJ lawyers, in both criminal and civil matters, and many of the nation’s and Iowa’s finest firms and lawyers. Whatever modest success I had as a lawyer was based on my judgment and work ethic. I brought that with me to the bench. Again, you have to be careful what you seek. I wanted a more contemplative professional life and got it. That has its own drawbacks.

I don’t see what I do as hard; great trial lawyers — what they do is both hard and magical, artists with words, they do the heavy lifting. My job is to follow the law and do justice, so the only hard thing about what I do is when following the law does not match my sense of justice. It is then I have the opportunity to fulfill my oath, follow the law as I understand it, and write opinions expressing my disagreement with it. The nice thing about being a district judge is that my opinions bind nobody, including me. But they have, on occasion, had major influences on bending the moral arc of the universe towards justice, as Martin Luther King so eloquently spoke and wrote about.

Q. In your decision in Security National Bank v. Abbott Labs, you decried the opposite extreme to trial by ambush, which you termed “trial by avalanche,” the huge haystack concealing the tiny needle. What about discovery in criminal prosecutions, where both games are routinely played on the defense? Criminal defense lawyers suffer discovery envy when we hear of the splendid options available to civil lawyers. Is Rule 16 discovery inadequate? How can criminal defense lawyers manage trial by avalanche, when bankers boxes of 3500 material are dumped on us the day before trial? Why don’t judges seem to care? And then, there’s the elusive Brady debacle. Can anything be done to make the government provide Brady/Giglio early enough to make it usable?

A. I recently published a law review article suggesting we have the discovery rules backwards in our civil and criminal justice systems in federal court. See, Mark W. Bennett, The Grand Poobah And Gorillas In Our Midst: Enhancing Civil Justice In The Federal Courts—Swapping Discovery Procedures In The Federal Rules Of Civil And Criminal Procedure And Other Reforms Like Trial By Agreement, 15 L. Rev 1293 (2015). Most civil cases involve the hope of a court-ordered transfer of wealth. The defense has money and the plaintiff believes they are entitled to some or all of it. There are exceptions, of course, for equitable relief and to vindicate constitutional and statutory bedrock principles. In criminal cases, the thrust is to incarcerate and deprive offenders of their liberty. So, with some modest tinkering, I would switch the paradigms so that those facing loss of liberty and death get the broader discovery and those in the civil area get a criminal Rule 16 type mandatory reciprocal disclosure with perhaps a few little tweaks.

The interesting observation is that the virtuoso cross-examiners and spell-binding raconteurs come not from the civil side as much as the very best on the criminal side. The criminal defense lawyers and AUSA’s often take on witnesses cold, with no statements or depositions. That forces them to really study and learn the craft — all of the mountains of discovery most civil lawyers engage in teaches them nothing about being a good or great trial lawyer.

In our district, the AUSA’s have changed their practices and now make full early disclosure of all information in their possession, including Brady and Giglio well in advance of trial. But, because there is so much disparity in discovery, let alone charging decisions and sentencing approaches, in the 94 districts, Congress should step in and beef up Brady/Giglio both procedurally and substantively, including looking at broader remedies when there are violations.  I am aware that colleagues have discovered very disconcerting abuses.

Q In an article you wrote for the NACDL’s Champion, entitled Heartstrings or Heartburn: A Federal Judge’s Musings on Defendants’ Right and Rite of Allocation, you wrote that allocutions matter:

I find them immensely important. More often than not, they help shape the sentences I impose — for better or worse. In many cases, I find the allocution more significant in crafting a sentence that is “sufficient but not greater than necessary” than anything the defense lawyers are able to do or argue. I disagree with claims by academics in law review articles that changes in criminal procedure have rendered the historic rite of allocution meaningless. In my courtroom, allocution is always factored into the crucible of intense scrutiny that I give the § 3553(a) factors when imposing a sentence.

What makes an allocution grab you by the heartstrings? What sort of allocution gives you heartburn? What about the defendant who lacks the capacity to express himself well, or the defendant who is too nervous to speak? What about the defendant who maintains his innocence? Is he punished for the failure to express remorse, even though he may, in fact, be innocent? Academics (and others) also argue that most judges have already decided on a sentence before allocution, or argument for that matter, is heard. Is that true? Even if not you, what about other judges?

A. Allocutions are often a very intimate process for a judge to learn from the only place they can about huge blanks in the PSR’s that probation officers aren’t able to access despite their stellar work. I always give an offender a full Miranda warning that they have an absolute right not to say anything, and that I will not hold that against them in any way. I also explain that some allocutions help a defendant, some have no impact, and that sometimes I have increased the sentence based on what an offender says. I also advise that, should I ask a question, they have the same right not to answer, they can consult with their lawyer about answering each question, and that I will not hold it against them in any way if they decline to answer any or all of my questions.

I will keep this answer short, because anyone can read the article you refer to online as well as reading the comprehensive empirical follow up law review, the first and only one of its kind about federal trial judges and allocution that I wrote with my co-author, Professor Ira Robbins at American University Washington School of Law. Mark W. Bennett and Ira. P. Robbins, Last Words: A Survey and Analysis of Federal Judges’ Views on Allocution in Sentencing, 65 L. Rev. 735 (2014). This article answered many of the questions you raise, and from a broad base of federal judges.

I think it unwise for a defendant to allocute if they maintain their innocence. I don’t think any judge holds it against an offender who does not allocute. A few years back, I had a white collar defendant with a few years of law school under his belt who pleaded guilty to 16 counts and went to trial on 3 counts and was found guilty of those. His allocution lasted six hours, over two days, in which he professed his complete innocence. I indicated he was very, very persuasive in convincing me, beyond a reasonable doubt, to give him the statutory maximum — he was close anyway. His allocution convinced me that any feelings of mercy should be saved for another day and another offender.

Q. You’ve been harshly critical of mandatory minimums, asserting that they have forced you to send more than a thousand nonviolent drug defendants to prison. Prosecutors argue that this reflects Congress’ view of the seriousness of drug offenses, and empowers them to gain cooperation. Where is the tipping point between the legislative power to determine a minimum sentence and the judge’s compliance with the Constitution and the parsimony clause, 18 U.S.C. § 3553(a)? Is the safety valve or a 5K1.1 letter enough of an opportunity to get out from under a mandatory minimum? What does a judge do when his sentencing decision does what he believes to be an injustice?

A. No one can seriously argue that Congress lacks the power and authority to enact mandatory minimums and statutory maximums. But, as citizens, we would hope that these critical decisions that affect hundreds of thousands of offenders would be based on sound analytics, testimony of various judges, prosecutors, defense counsel, offenders, corrections officials, criminologists and other social scientists, the DOJ, and stakeholders. Just a brief glimpse of the history of the ADAA of 1986, which created many new mandatory minimums, teaches that there were no such hearings but, rather, a bidding war on both sides of the aisle to ratchet up sentences so that they could out-duel the other side on “being tough on crime” in the 1986 federal elections.

Surely, we can all agree, now, that this is not a principled way to enact punishment and resulted in the United States becoming the leading country in the world in terms of mass incarceration. There is something rotten not in Denmark, but, here, in the greatest country in the world, where we have 5% of the world’s population, but 25% of the world’s incarcerated. That we incarcerate more people than all the dictatorships in the world suggests something has gone terribly wrong.  That so many minorities fill our prisons is shocking and a call to action.  As for the safety valve and substantial assistance motions, they are useful tools for both the prosecution and judge to reduce the harshness of federal sentencing in some cases. But, they are extremely limited tools. Hopefully, significant expansion of the safety valve seems to be something Congress agrees on in the various pending sentencing reform bills.

Judges have an obligation to impose a congressionally mandated mandatory minimum whether they agree with it or not. All judges make decisions that are contrary to their own personal beliefs — that is nothing new to judges. Where I likely differ from the majority of my colleagues is that I do both speak about and write about it in judicial opinions, law review, and other articles. Indeed, when I am forced by mandatory minimums to impose a sentence that I think is unjust I say so on the record. In my view, less than 1 in 10 mandatory minimums I impose are justified. So many of the offenders I sentence are low level, non-violent addict meth users. It only takes 5 grams of meth to trigger a mandatory minimum.

Q. Sentencing is, perhaps, the greatest of legal mysteries. You’ve written frequently about the undue harshness of the Sentencing Guidelines, but what makes for the right sentence? How does a judge know whether 121 months or 124 months is right? What magic says 17 years is a proper sentence, but 16 years, 11 months isn’t? And is it right that a defendant sentenced on different sides of the courthouse hallway can end up with wildly disparate sentences? Is there no virtue in consistency, as provided by the Guidelines?

A. There is almost always, given the § 3553(a) factors, a fairly wide range of what a reasonable sentence is. That is, a sentence that is sufficient but not greater than necessary to comply with the statutory purposes of sentencing. Unless we want computers to sentence offenders, there is naturally a range of reasonableness — not a precise number of months. Once the AUSA’s in our district transitioned from the mandatory to an advisory guidelines regime and the developing case law, the parties are rarely widely apart in terms of sentencing recommendations. They usually frame a range of reasonableness which is often below the guidelines range. In arriving at the actual sentence, judges carefully weigh the § 3553(a) factors, listen and think about the arguments of counsel, and rely on all the information they are allowed to consider and carefully select the sentence they think is appropriate.

It is not a perfect system and obviously different judges have different sentencing philosophies and balance the § 3553(a) factors differently. So long as the ultimate sentence is reasonable — I think this an excellent sentencing system. The harshness of the guidelines could be cured by re-designing them in light of our nearly 30 year experience with them and incorporating more empirical data and views of more stakeholders in light of such experience.

Q. Last summer, you took senior status, which means you can work as hard or not on the bench as you prefer. One aspect of being a senior judge with life tenure seems to be the willingness to take greater risks, to speak out against those aspects of the system you think are wrong, unjust, counter-productive. Has this been your experience? Does it make a difference to know that you aren’t likely to make the short list for Supreme Court when you decide whether to speak out? Looking back, is there a concern that not enough judges are willing to take a chance and do what they think is right? Are younger judges, particularly those who came of age during the mandatory guidelines era, too myopic, maybe too ambitious, to make waves?

A. People who know me know I did not need either senior status or life tenure to speak out against injustice, for better or for worse, that is hard-wired into my DNA — and I started at a very young age in the first grade. Speaking out against injustices that we, as lawyers, perceive is, to me, a calling of the profession. I never, ever, had any desire to move up from being a trial court judge, or to be popular, so I intend to continue to speak out again injustices I perceive –that’s my life’s calling.

My father taught me at a young age to stand up to injustice. I spoke up to support a friend in first grade after the teacher was picking on him because he was having trouble performing a task (he was placed in special education classes the next year). That got me kicked out of school for the day. My father came and got me from school. After the principal told him what happened and we were walking home and I was sobbing, my father said the principal was right for disciplining me, but that I was right for standing up to a perceived injustice. He instilled in me the understanding that you may never get a second chance, so you have a duty to speak out against injustice — especially if it involves another — but there will be consequences. However, the consequence of remaining silent is the worst consequence of all.

I have always strived to be faithful to my father’s advice because, while he always gave me unconditional love and support, he rarely offered advice. I leave it to each of my colleagues to decide if speaking out is for them — because of the great importance of an independent federal judiciary. I fully support each judge making their own decision about the harshness or leniency of the guidelines and mandatory minimums. I have my own views that I have made public, but I have no greater wisdom on this than my colleagues. I do believe every federal district judge I know takes sentencing very seriously and does their absolute best to give a fair sentence. That we may respectfully disagree on what is sufficient but not greater than necessary is the price we pay for judicial independence.

With mandatory guidelines, we simply substituted discretion by AUSA’s for that of judges. As I have pointed out in numerous opinions and law review articles, there was far more disparity in charging decisions, plea bargains, various policies about how to apply or how not to apply certain guideline enhancements, decisions affecting substantial assistance motions and the extent of the departures, and the wicked disparity in application of 21 U.S.C. § 851 enhancements even among districts in the same state — than among my colleagues in sentencing.

Two thoughts on new judges.  First, each will need to find their own sentencing philosophy and strive to be consistent in their own sentencings because, in the end, that is all we can do.  In sentencing and weighing the § 3553(a) factors, we do what Judge Guido Calabresi has written: “We weigh that which cannot be measured.” Secondly, and most importantly, new judges in their training get a very guideline-centric approach about sentencing, especially from the excellent trainers from the Sentencing Commission. The Commission has a great website, chock-full of detailed reports and statistics and incredibly user-friendly. But, nowhere on it or in their reports, training, or public comments do you ever see detailed information about all the decisions of judges who have written opinions expressing policy disagreements with a host of guidelines. Nor, in my view, does a new judge hear the compelling counter arguments that, despite the propaganda, most guidelines and most SOC’s (of which there are a dizzying array of upward adjustments) lack any meaningful empirical basis.

I think if new judges knew that of the 10,000 cases that formed the basis of the original guidelines that the newly formed Commission looked at between 1984-87, half of them received probation — but those were not directly factored into the calculations of base offense levels — that might suggest to new judges that there is considerable mythology about guidelines being empirically-based. In every preliminary ruling, where I raise a potential policy disagreement about a guideline, I have offered the government the opportunity to adduce evidence or brief why the guideline is, in fact, empirically based. Never once have they done so.

Thank you for the opportunity to share my views with your readership.

Cross: Robin Steinberg, The Bronx Defender

May 18, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Robin Steinberg, founder and Executive Director of the Bronx Defenders.

Q. Berkeley in the ’70s was still a hotbed of radicalism, and you graduated in 1978. Did you go in ready to change the world? What was your major? Where did you plan to go with it? Was law always the plan for the future?  Were there any alternatives in the mix? Was Berkeley as wild as they say back then?

A. Growing up in the 1960’s and 70’s in New York City, I was aware of a far-away land of revolutionary thought called “Berkeley,” but honestly, I had no idea where it was or that it was even part of the University of California. During my teenage years, it was the Utopian place that I was going to run away to when I was enraged at the world, or just furious at my mother.

But as fate would have it, my mother decided to marry a Californian, so in my senior year of high school we moved to Los Angeles. To say that I was angry about this cross country adventure would wildly underestimate how I felt. So when my new stepfather asked me where I wanted to go to college – a question I had never been asked by anyone – Berkeley was all I could say. It was where I needed to run – and run, I did.

Once there, I promptly fell in love with a radical long-haired, bearded teaching assistant in the University’s Economics Department. I wasn’t exactly Emma Goldman, “Living My Life,” but I was close. Living in a studio apartment, sleeping on a mattress on the floor, using candles as my lighting source at night and using chopsticks at every meal – I was living my dream.

I immersed myself in politics, radical thought and feminism. I attended pot lucks with smart, radical thinkers, listened to political music (The Red Star Singers, Holly Near, County Joe and the Fish, Odetta, Malvina Reynolds and the Berkeley Women’s Music Collective to name a few) and proudly shopped at the local food co-op where, with each purchase, I proudly announced that my profits should go to the Berkeley Women’s Heath Collective.

As if Berkeley wasn’t counter-culture enough, I joined the alternative school within the University – Strawberry Creek College. It was ironically and intentionally housed in an old wooden structure that once housed the ROTC and attracted interesting students and faculty. There, I took small seminar classes with like-minded students and professors. I excelled academically but resolutely refused to participate in any of the mandatory trust building exercises like closing your eyes and falling backwards, believing that your seminar mates would catch you. “Sorry, I would say, but I’m from New York and there is no way that I am going to do any such thing.”

During those years, becoming a lawyer was the farthest thing from my mind. Too traditional, too mainstream and besides, what did lawyers do anyway?  I declared a major in Women’s Studies – then a new discipline – and was a proud member of the first class to graduate with a B.A. in Women’s Studies. I wasn’t sure what to do with my degree, or my feminist passions, I just knew that I wanted to change the world.

Q. When you decided to leave the left coast behind and go to NYU Law School, were you already interested in criminal law? What made you come east? Why NYU?  Was there anything else that interested you other than law? Did you ever wonder, “what was I thinking?”  During law school, what were your activities, your focus? Did you consider a nice life in the corner office of a Biglaw instead of a future in the trenches?

A. I may be simultaneously one of the most practical and one of the most idealistic people around. Changing the world was my goal – but how to do that was a very pragmatic decision. I assessed calmly that a law degree would give me credibility and some power to put my feminism to work and make a difference.

I approached the decision about which law school to attend in the same pragmatic way. I found a list of the top 20 law schools in the country and when the time came to decide which law school to attend, I combed through catalogues looking for something that would appeal to my feminist ideals. NYU had a list of clinical programs, one called “The Women’s Prison Project,” Honestly, all I saw was the word “women” in the title and I was sold. The fact that “prison” was connected to the program wasn’t important. As it turns out, it changed my life forever.

Q. Your first job out of law school was with the Nassau County Legal Aid Society. Why Nassau? Was that a choice, or was that just where you ended up?  Where else did you seek work? Did you ever consider working as a prosecutor? Why not? What was it like doing indigent defense in one of the last bastions of the Republic political machine?

A. It’s possible that I was the least engaged law student to ever attend NYU. I was socially uncomfortable and intellectually uninterested. The work was tedious, the load overwhelming and I could see almost no connection between what I wanted to do with a law degree – forward social change – and what I was learning. NYU Law School was not the hot bed of public interest lawyering that it is today and few wanted to engage in the larger political context of the law, talk about how the law favors the affluent and powerful or even general conversations about justice.  So I disappeared. I just stopped going to class. I never considered quitting – its just not what I do. Instead, I found a way to survive the experience with my soul intact.

I threw myself into the clinical program and traveled to Bedford Hills Correctional Facility to visit the women who were our clients. That experience changed me forever and set me on the path that I have been on for over 30 years. These women generously shared their stories. They inspired me, broke my heart and made me angry – always a very powerful agent for change for me. Injustice makes my blood boil. My work at Bedford Hills consumed my second year of law school. But it also made me begin to question what was happening in the criminal justice system that doomed these women to a life behind bars. So I joined the Criminal Defense Clinic in my third year of law school. And, as they say, the rest is history.

I did not flirt for a moment with the possibility of working for a big law firm, a small law firm or even a government agency.  I wanted to work on behalf of the disenfranchised, the marginalized and the powerless. So when I walked into criminal court, and saw the inhumanity, and the hundreds and hundreds of low-income people of color waiting hours for a one-minute court appearance that passed for justice, I couldn’t walk away. I vowed to become a public defender.

The fact that I would spend my days and nights defending mostly men, in a system that was then dominated by men, did not escape me or deter me. I threw myself headlong into my new career and have never looked back – not for a moment.

I applied to dozens of public defender offices with the hope that someone would hire me. I wanted to stay in New York City and work for the Legal Aid Society, but they wouldn’t hire me, so I accepted an offer at Nassau County Legal Aid.  I was happy to be there and grateful to have the opportunity to be a public defender even though practicing in Nassau County was incredibly difficult for many reasons, not the least of which was the conservative nature of the county. The judges, prosecutors and juries were conservative, intolerant and harsh. Everything was a battle – internally and externally. It made me cry a lot but it also made me strong, determined and willing to push back against what seemed like — and often were — insurmountable odds. Those lessons have served me well.

Q. Every criminal defense lawyers has a “first trial” story, whether about the glorious victory, the agonizing defeat, the over-preparation or the ignominous screw-up. What’s your “first trial” story? Were you as great, or terrible, as you thought you would be? Looking back now, knowing what you do, what would you have done differently?

A. It may be that every criminal defense lawyer has a first trial story but honestly, I can’t even remember whose case I tried first. I remember every loss. Every mistake I ever made and every client I might have failed – in a trial or plea bargaining context. But with each failure, and each disappointment, I learned how to be a better lawyer and I carry those lessons with me everyday.

Q. From Nassau LAS, you went to the wilds of Manhattan. How was New York County Legal Aid different? Was there a difference in the practice at 100 Centre Street? Crack was the epidemic of the day, and drug prosecutions were overwhelming, with arraignments running 24 hours a day, 7 days a week. What was it like doing indigent defense then? What was the burden on a Legal Aid lawyer?

A. Going from Nassau to NYC Legal Aid was a seismic shift. Clients were still being ground up in the system, but the amount of jail time being served was radically different. For months, my biggest fear was that I would counsel a client into a terrible plea because it looked great compared to Nassau County. From my perspective, everything was easier in New York City. Caseloads were relatively reasonable, my colleagues were empowered, the judiciary was more diverse, the juries were better and the Legal Aid Society had more organizational independence.

There were very few women in positions of authority – either in Nassau or New York City – a fact that made it hard to feel comfortable in my own skin or feel supported in the way I think is important for young lawyers. Without women role models, I tried valiantly to be the best “man” I could – until I finally realized that I had to chart my own path and develop my own style.

Q. From Legal Aid, you went to the Neighborhood Defender Service of Harlem when it first opened its doors. Why? You left before the Legal Aid strike. What did you think of the strike? How did that change things for indigent defense? Neighborhood Defenders brought a “team” approach to representation. What was that all about? Was this better than the way LAS handled its caseload? Was there any “competition” between Legal Aid and NDS? Should there have been?

A. When Rick Finkelstein and Chris Stone asked me to be a team leader and part of the inaugural team of lawyers starting at NDS, I jumped at the chance. Both Rich and Chris were brilliant, inspiring and dedicated to improving the quality of justice for Harlem residents. How could I say no? As much as I loved my job at Legal Aid, nothing could have kept me there. Change and innovation felt impossible and I knew we could do better for clients – so when NDS called, I jumped.

NDS in the early years was incredible.  The caseloads were much lower, offering opportunities to interact with clients and the Harlem community in ways that were very different from what I had experienced at LAS.  And the team approach, while very complicated and bumpy at first, offered a real glimpse at what an integrated public defender office could be. I couldn’t have asked for more dedicated colleagues and brave defenders in those early years at NDS. And I built upon those experiences in creating and growing The Bronx Defenders.

Q. In 1997, you were one of the founders of the Bronx Defenders, an upstart organization to handle indigent representation in perhaps the toughest systems in the nation. What were you thinking? How ambitious was the idea? How crazy was it to think you could create a new organization for The Bronx? What was it like to start up an indigent defense organization out of nothing?

A. Starting The Bronx Defenders was simultaneously the most frightening and exhilarating thing I have ever done. There were eight of us at first, in a tiny office between a Radio Shack (remember them?) and a Rent-A-Center.  In truth, I’ve never worked harder in my life.  We started on a Sunday night, and covered five arrangement shifts that first week – with only 8 people. We had almost one hundred 180.80’s that first week, and were staffing up way too slowly to keep pace.  By week three, after several of us had done a dozen arraignment shifts I think we were all about to keel over.  But we juggled like crazy and with fierce determination, kept the lights on.

I picked the Bronx precisely because it was the poorest, most over-policed and under-resourced borough in New York City. Initially, we just wanted to prove ourselves in the courtroom to a system that wanted nothing to do with us. So we dug down. I suppose the real answer here is that I wasn’t thinking.  Because If I had ever stopped to think about what we were trying to do, the magnitude of the problem, the breath of our vision, I would have been paralyzed. I never could have imagined then what we are today—a committed collective of 250 lawyers and advocates that offer holistic defense services to over 30,000 clients a year.

Our model of holistic defense grew out of really listening to clients—hearing their stories and engaging in a deep and profound way with their communities.  Hearing how far the tentacles of criminal justice involvement reached into every aspect of their lives, how a criminal case so often meant losing a child, a job, a home, or even one’s life in America.  That made it clear to me that we needed, once and for all, to break down the silos of legal practice and equally important –the false distinction between a direct service organization, and one that does impact, organizing and policy change. Advocating for clients means more than solving individual problems in criminal cases.  It means touching lives, sheltering the most vulnerable from the crushing impact of the system, and salving the multiple wounds that criminal justice involvement can inflict. And it means being an engine for systemic change for a community that needs it desperately.

Q. At some point, you switched from trial lawyer in the trenches to administrator to head honcho, one of the most innovative voices in indigent defense in the nation. Did you want to leave the trials behind and become a boss? Was it all it was cracked up to be? While it’s given you the opportunity to speak about indigent defense and receive some significant awards, it’s also brought some painful responsibilities, as reflected in the disinvitation from the Harvard Women’s conference and the “Hands Up” music video fiasco. Is it worth it?

A. I was the Executive Director of The Bronx Defenders from day one so I knew that I was making a transition from trial lawyer to manager. I refused to give up being a defender for many, many years – managing the office, growing it, managing the staff and still doing arraignment shifts, representing clients and trying serious felony cases in Supreme Court. With the growth of the office, and more administrative responsibilities, I eventually stopped representing clients. I miss it. I really miss it. But I have learned to enjoy thinking more widely about indigent defense and creating an office that has a vibrant culture, a spirit of innovation and an expectation of fearless and courageous lawyering on behalf of clients. I get restless of course – it’s in my nature.

But I think that restlessness allows me to consider change and movement and growth with an open heart and mind. The Bronx Defenders is what it is – one of the most impactful defender organizations in the country – because we continue to innovate, assess client needs, tinker with our model, experiment with new ways of doing things and encourage young lawyers and advocates to develop professionally and personally. I still feel lucky every day that I am part of this incredible organization and get to work with some of the most brilliant and dedicated advocates anywhere.

And yes, with responsibility comes hard times. Certainly, the fallout from “Hands Up” was an experience that changed me forever. The heartbreak of losing two dedicated lawyers, and my inability to stop that from happening, will haunt me always. My own experience being vilified in the press and being the target of the police was incredibly hard, but it also brought me closer to understanding how clients, and their loved ones, might feel when they can’t change a negative narrative about them and people in power want to destroy them. The terrifying experience of fearing for my life – I got daily death threats and hate mail – and having my character being assailed in such a public way, left its scars. But it also taught me an enormous amount – about how power really operates, who my allies really are, what mayoral politics looks like, how scary the police union can be and how fear and threats have the potential to prevent even good people from speaking out.

But is it worth it?  I think the answer to that lies with the hundreds of thousands of lives we’ve touched over nearly two decades in the Bronx. Certainly for me it’s been worth it.  I have a job I love, with colleagues that I adore, in a place I helped to build that does righteous work that I’m proud of every single day.  Not bad, all things considered.

Q. As one of the leading national voices in indigent defense, what is your take on Orleans Parish Public Defender Derwyn Bunton’s decision to refuse to take on clients that his office can’t competently handle? Is it time to force the issue, to put the system to the test of either paying for enough lawyers to provide zealous representation or let the system crash? Will it work? Will government ever care enough about the constitutional rights under Gideon to commit the resources needed? Is there anything else to be done?

A. Defender Chiefs like Derwyn Bunton are faced with unconscionable choices – represent clients in a system that is grossly underfunded and do the best you can or refuse to work under conditions that make it impossible to do a good job and walk away from clients who desperately need you with the hope that your short term strategy will ultimately be better for clients. Derwyn is a fearless leader with enormous integrity and is acting in the best interests of the client community in the long run and his staff.

It’s been over 50 years since Gideon. Our criminal justice system is our national shame. The fact that government does not adequately fund indigent defense is a huge part of that. It’s hard, but hard isn’t a reason to quit. Our clients’ lives are harder and they need great lawyers and fierce advocates. We have no choice– we must continue to advocate for our clients, fight for what’s right, and refuse to give up.

Q. In the aftermath of Kalief Browder’s suicide, and recognition that the delays in the Bronx are a systemic disaster that’s gone on unabated forever, Bronx Defenders decided to sue. What made now the time to say “enough”? Well-meaning voices, from Mayor di Blasio to former Chief Judge Jonathan Lippman, have all agreed that the problems are a disaster, but talk is cheap and nothing changed. What needs to be done? Does anyone have the fortitude to make change happen? What about the new Bronx District Attorney, Darcel Clark? What about the judges in the Bronx? Is there any hope that you can get past the point of cheap talk and make the system work?

A. The system in the Bronx is dysfunctional and everyone knows it. Something had to be done. No one should have to wait over 800 days for a trial – especially people who live in the poorest borough of the City and are struggling to survive, feed their families and put a roof over their heads. The economic and psychological burden of having a criminal case hanging over your head because the system is so underfunded that it can’t provide you with even your most basic constitutional right to a speedy trial – is unconscionable.

We decided to bring a class action lawsuit over delay in the Bronx when all other avenues for change failed. We hope that the lawsuit will compel action by criminal justice stakeholders and funders. Our clients simply can’t afford to wait any longer. And it would have been wrong for us to delay for even one more day.

Cross: Elie Mystal, From Salacious Gossip To Slaying Dragons

May 11, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Elie Mystal, former litigator at Debevoise & Plimpton turned Editor-At-Large at Above The Law.

Q. While anyone moderately familiar with the blawgosphere will know your name, many won’t know how Elie Mystal came to be the first non-Lat editor at Above The Law. Some of us old-timers, on the other hand, remember well David Lat’s stroke of brilliance back in 2008, ATL Idol. What made you decide to join in the beauty pageant? Back then, ATL’s stock in trade was snark, and you won a contest for who’s the snarkiest guy around. Were you all about the snark? Was legal gossip your focus? Were you really that interested in sexy judges and drunken lawyers?

A. When my origin story is written, let’s not forget Kashmir Hill. She’s the one who planted the “ATL Idol” idea in Lat’s head, because she is an impish hellcat like that who drinks other people’s tears. (Kash was also the one who pulled Staci Zaretsky’s resume out of the pile, when I was on the “she went to WHAT law school?” wagon.)

Matt Levine (former Dealbreaker editor, current Bloomberg View editor) was a friend of mine in college, and a friend of Lat’s in law school. He put in a good word for me with David. My goal, initially, was just to get some clips and maybe a recurring column out of the experience. I wasn’t there for the sexy judge profiles, I just wanted to show that I could write about “legal topics” in a humorous, readable way that wouldn’t make the eyes of non-lawyers glaze over. After I left Debevoise, I had been *close* on some “breakthrough” jobs. I was close on a job at Huffington Post. I was close on a writing job at the Daily Show. I put in a lot of work and writing and stress to pursue those positions, and when they went to other people, I had nothing to “show” for the effort. ATL Idol seemed like a way to show my skills to the market, even if I didn’t get the job in the end.

Of course, I hoped to win. ATL Idol was supposed to be anonymous, so we all had to pick “avatars” for our work. I agonized over my choice. I had it down to a picture of Shaka Zulu (playing up a justice warrior persona) and “The Brain” from Pinky and the Brain (playing up the frustrated elitist persona). I talked to everybody I knew, and eventually went to my mom. She said “Do you want to make a statement, or do you want to win?” I went with the educated (white) mouse. Funny how things work out.

Q. You were a double Harvard guy, undergrad and law, which puts you in the top .001% of most privileged people on earth. What was the plan when you took off for Cambridge? Did you always want to be a lawyer? Was there a greater purpose to going to Harvard, or were you going to figure it out later? Did you feel any responsibility to use that privileged education wisely?

A. Yes, I’ve had every educational opportunity in the world laid out before me, and I’ve transubstantiated it into a career of writing dick jokes about lawyers. Mother couldn’t be more proud.

When I went to college, I wanted to be involved in politics. My undergraduate degree is in Government. I applied to 11 colleges, got into 10 (fuck you, Stanford), and my final choice was between Harvard and Claremont McKenna – a small school in Southern California with a top-notch poli sci department. I figured I’d run for office or, worst case, be the press secretary for somebody running for President.  I never wanted to be a lawyer, especially when I was actually a lawyer.

But the way I got into being a lawyer, for the few horrible seconds I was one, was out of a sense of “responsibility.” Understand, when Debevoise offered me the job at the end of my 2L summer, they were offering me a salary that was more than anybody in my family has ever made. Ever. My mother, Elizabeth Ying, is an incredibly accomplished woman, she’s at the top of her field and has been at the top of her field for most of my life (she’s currently the speech language co-director at the Center for Hearing and Communication). She’s an *expert,* and Debevoise was offering me more than she ever made in my first year out of school.

I did feel like I owed it to her, my Dad, everybody in my family who had given something up so I could go to a museum or see the Space Shuttle or get the hell out of public school, to try to enjoy making that much freaking money. I mean Christ. Saying “I tried, I hated it, I have to do something else,” is one thing. Saying “pfft, it looks stinky,” would have felt like a betrayal to all who invested in my future.

THAT SAID: I do think that I am, post-law, using my privileged education responsibly. My family is proud of my work. People have come up to my mom and told her, “my son was going to go to law school until he started reading your son.” That’s nice. I’ve saved my one lamb.

Q. Graduating from Harvard Law School is about as close as one gets to having a get rich quick card.  Was Biglaw always your direction? Did you go in dreaming of the day you could do securities law? Did you ever consider putting your considerable talents to use in criminal law? Civil rights law?

A. When I quit, I spent six months on my couch, mainly playing Madden Football and re-imagining my life. I did at that point wonder if I might have been better off using my law degree for something less corporate. Battered women or civil rights or something.

But Debevoise was great about pro bono work, and my experiences there told me that actually doing “noble” legal work was not at all for me. Waaay too much pressure when your clients are real, desperate people looking to you to save them from the horrible system. I did some family law stuff with In Motion. That shit made me sick to my stomach. Some lady who is probably going to get the hell beat out of her if we don’t get her this restraining order? No, no, no. That’ll keep you up at night. Give me an impossibly rich corporation fighting the government over the size of their fine ANY DAY over an actual human who is counting on me to make things right.

In my writing, too, I try not to think of the people I write about as “persons.” I don’t want to get invested in the individual. I want to talk about the cause, the issue, the greater good. It’s like Leo McGarry says on the West Wing, “first thing my kid does is name all the lobsters, and then I can’t eat ‘em.”

Q. While you were in HLS, you became involved in some political campaigns on the Democrat side.  Did you consider a future in politics? You come from a political family, your father having been the Deputy Presiding Officer of the Suffolk County, Long Island, Legislature. Did you see Harvard as being a good launching pad for a career in public service? President someday? What type of politician would Elie Mystal have been?

A. Yup. I thought Harvard and HLS would propel me towards elected office. I figured I was too “black” to be President, but Mario Cuomo? I thought I could totally be that guy.

I applied to five law schools, and got into four (Fuck. You. Stanford.) But I wasn’t choosing between Harvard and Yale so much as I was choosing between Harvard/Yale OR working for Hillary Clinton’s first NY Senate run as a press person based on Long Island. I didn’t staff Clinton because, ultimately, I didn’t want to be staff. I wanted to be the candidate, and candidates generally had law degrees and some kind of independent career *prior to* entering politics. I decided on law school strictly as a stepping stone towards an elected future.

Now there are many reasons those dreams never panned out, but one of the biggest is that I would have made a bad politician. I don’t have the temperament. I, quite literally, can’t keep my mouth shut when I’m supposed to keep my mouth shut. (Which was also a challenge in my legal career, “keeping client confidences” does not at all come naturally to me.) I would not have been a Barack “No Drama” Obama type. I would have been a loud, self-regarding, indignant politician. I’d be an Anthony Weiner who could keep his dick in his pants, but would still be an annoying prick.

Luckily, I learned that about myself before I tried to make a go of it. Being around a lot of politicians, volunteering and the like, just watching them, as I matured I learned what they had that I didn’t.

I can’t be Anthony Weiner. Keith Olbermann… that I could do, if somebody would just give me the chance.

Q. Your first job after graduating HLS in 2003 was at Debevoise & Plimpton, where you were a commercial litigation associate. Was there any part, other than the paycheck, you liked about Biglaw?  Were you cut out for law firm life? While you still have warm feelings for the firm, what part of the practice did you hate most? Some say Biglaw is dying since your day. Is it? Can it be saved?

A. I liked the intellectualism. Harvard College was the most intellectually stimulating place I’ve ever been in. Harvard Law School was one of the least. In law school, so often it just devolved into hundreds of students trying to figure out what Oliver Wendell Holmes would have done. Fuck that guy. Fuck that guy in the ear. I remember being in office hours with Elena Kagan (I had her for CivPro) and asking why I should give a rat’s ass (I’m paraphrasing) about what some dead, probably racist, white man said about where I could sue WalMart. She had an answer: yada yada, must understand the system to change it, blah.

Law schools, almost all law schools, take really smart people and then say, “here is the box. You can do whatever you want within this box, but if you don’t stay between the lines, you will not get an A.” BOO.

In law school, I got a B+ on a paper and the comments back were “this is good, but you didn’t sufficiently tie your argument to precedent.” In college, I got a B+ and the comment was “This is good, but sometimes it feels like you are just telling me what others have already said. What’s the new idea here?” That’s the difference.

Debevoise was closer to the college ideal than the law school box. I think the whole “pound on the law, pound on the facts, or pound on the table if you have nothing else” that happens in a place focused on client outcomes allowed for much more intellectual freedom. In the law firm, the hunt for on point, in jurisdiction precedent requires creativity because there is not a predetermined “right” answer that the professor is looking for.

The thing I hated was, obviously, the hours. Ye Gods, the hours. You know what I learned from Debevoise, that there is nothing IN LIFE that I still want to do for the 11th hour in a row. I don’t want to play the same video game for 11 hours straight, I don’t want to have sex for 11 hours straight. If you see me sleeping for ten hours, please wake me up, because I’m hungry and I need to pee.

Q. After Debevoise, you left law to write about New York politics. Why quit law?  Even if Biglaw wasn’t for you, what about using that snazzy degree for the benefit of others, as in working for the Legal Aid Society? Had you come to the realization that law wasn’t the right place for you? Did you feel there was a writer in you desperately trying to come out? How hard was it to walk away from Debevoise?  And the paycheck?

A. Quitting was probably the most important decision I made until I had children. So it was a serious decision, but not a particularly “hard” one. I didn’t know what I wanted to do, but I knew I didn’t want to be a lawyer. Once I got there, like, every day I spent at Debevoise was one more day not making progress on what I would ultimately be doing with my life.

When I told my partner/mentor that I was quitting, he said “Well Elie, I would have been more surprised if you came in here and told me you desperately wanted to make partner.” Nice. He thought I was just burned out though, so initially they put me on sabbatical. For six months there, I could have walked right back into work, no questions asked. And I think I probably could have gotten my old job back right up until the recession hit. I wasn’t a “bad” lawyer, I just didn’t like it very much.

The paycheck wasn’t nearly as hard to walk away from as it could have been. My wife was a Biglaw attorney, but because she graduated after me and there was some issues getting her Visa situation worked out, for most of my time at Debevoise, we were living on *one* Biglaw salary. It was pretty much paycheck-to-paycheck. When she started working, and our expenses remained flat while our income doubled, suddenly I could see how people could get used to the money. I felt the golden handcuffs grasping for me. So I became even more motivated to get out before we forgot how to live without the money.

For the most part, I’m the only person I know who was able to quit Biglaw without taking a major hit to his standard of living. We didn’t move out of our crappy Upper East Side starter apartment until I’d been with Above the Law for a few years, but we never had to *downsize* because I quit.

The hard part was that I didn’t know what I wanted to do next. I didn’t know that I wanted to be a writer. I knew, by that point, that I was not going to run for office. So the two careers that had motivated my entire life were suddenly off the table. I was very self-directed in high school and even middle school. Quitting was really the first time in my life where I contemplated the possibility that I could do “anything,” and that was totally unnerving.

I did know that whatever I was going to do, I wasn’t going back to school to do it. One useless degree per life is enough.

I started blogging because I was bored. I did a site with a friend, and I really liked it. The site sucked. *I* sucked at writing it. But I realized that if I could write, if I could get my thoughts out to a wider audience, I could get 90% of everything I ever wanted out of politics. I just wanted to be (and still just want to be) part of the “conversation.” Writing was a way for me to make a living out of how I think and how I communicate. How cool is that?

So, I sent my resume to pretty much every media organization in New York. My cover letter was basically, “I have two Harvard degrees and am willing to work for free.” Eventually, the New York Press brought me on as an intern with a minimal stipend. It was a bit humbling to go from a Manhattan law firm to getting people’s coffee and being told that I don’t know how to use a comma (I don’t know how to use a comma; that’s what “secretaries” are for.) But they were giving me my experiential J-school degree without wasting my time in a classroom. By the time the ATL opportunity came along, I knew what I was doing.

Q. The Above the Law today is hardly the same as the ATL you fought to join eight years ago. What was then David Lat’s gossip and obsession with federal judges morphed into a business. What changed? How did going corporate affect what you were writing? Over time, it began seeking outside content, and its early “columnists” were some formidable, albeit more serious, voices in the blawgosphere. From there, it seems the need for more content drew in a very different type of contributor, that some might describe as decidedly less formidable. Was this a conscious choice? Did eyeballs take over? Was anything that filled empty space the new rule?

A. Hi Scott, I was wondering when you were going to ask that question.

I like to say, in the early days of ATL, Lat and I were like cult leaders. We had a small but passionate following that generally read every word we wrote as part of an ongoing conversation. Now, we are like bishops in the Catholic Church. We each have our own parishes. There is a nominal leader somewhere in a far off land. And… I own a house now, instead of living in a trailer drinking Kool-Aid with my friends.

That big change started to happen during the recession, when we gained a ridiculous market share. We were positioned to report first and accurately on the layoffs firms were trying to keep quiet. We were in a position to report first and accurately on the upheaval in the entry level job market. And things haven’t been the same since.

So, the first premise I reject is the notion that we went more corporate to get eyeballs. The eyeballs were there before the advertisers showed up. If there has been a corporate change, it’s been to service and monetize those eyeballs differently.

I think a more pretentious organization would say: “Oh, our core writers can service all these new people.” But that’s not how we went. Take in-house lawyers. I’ve never worked in-house, Lat’s never worked in-house. Instead of having me or Lat write about “the in-house life,” where we’d just look foolish, we’ll bring on people to write about in-house stuff. Our core audience, they might not like that content. But it’s there now for the people who do.

But our core still gets serviced, I believe. In 2008, Lat and I were writing about 7 posts a day. Now, we publish sometimes 20 posts a day, but you’ll still get 6 or 7 posts out of me, Lat, Staci, Joe, or Kathryn, the full time people. We publish enough now that I often tell people, “just don’t read the posts you don’t like, and read the ones you do.” Lord knows, that’s what I do.

That approach makes a lot of sense to me in the social media era. That’s the other “sea change” that has happened at Above the Law (and, you know, ALL of online media) since I started. So much of our traffic now is driven through Facebook and the other sharing sites. Comparatively fewer people just pop open ATL at lunch and say “I wonder what they’re talking about today.” They see a story through their social media networks, come in for that, and then, if we’re lucky, go down a clickhole into other stories on the site. Having a ton of columnists, each with their own social networks, is helpful to the site.

I know your question was more, “why do your columnists suck now,” and I don’t want to dodge that aspect, since I disagree. Obviously, quality is going to be more variable over 30 columnists than it was when we had two or three. But I think every one of our columnists is capable of hitting the ball out of the park on a particular issue.

If *I* write 4 columns, and I’m *on* my game: 1 will be very good, 2 will be okay, 1 will be a stinker. I’ll sign up for that right now. It’s freaking hard to come up with interesting things to say all of the time. I think our columnists often have a similar distribution, only they write once a week, so you might not see the really good one.

Q. Just before joining ATL, your father became embroiled in a residency issue that forced him to resign from the legislature. He was prosecuted and, in 2010, pleaded guilty to lying about living in Copiague. How did this affect you? What impact did this have on your view of politics? Of law? Of criminal law? Was his lawyer son able to help?

A. Yeah, that sucked.

Fun story about my Dad though, when he resigned he faxed in his resignation. From Florida. Not Copiague. Like a boss.

Q. One of the pet issues you adopted at ATL was the law school scandal, that law schools were sucking in kids with glossy promises when there was little hope of landing a decent job on the way out. What made you embrace this problem? You were a strong voice telling college kids to do something, anything, other than law school. Why? Don’t we need lawyers? Aren’t smart hard-working lawyers a critical part of the system?  What if the next Clarence Darrow decided to become a physician because of you? How can you live with yourself?

A. I initially started on the law school beat as a way to differentiate myself from Lat, who was already well known as a Courts guy and a Biglaw guy before I came along. Focusing on the students while he focused on judges and managing partners was a nice complement.

It was also a way for me to get in some of my subversive, “these Biglaw jobs SUCK BALLS, don’t you know,” without directly alienating our audience of (then predominately) Biglaw lawyers. Telling students to think more critically about Biglaw jobs (as I wish I had done) put me in the perfect position to have something to say when even those jobs dried up. Remember, we get a ridiculous amount of emails per hour. In 2009 and 2010, a lot of them were from students who were getting totally screwed.

Obviously, we do need lawyers. We need more lawyers. But we need lawyers who are economically capable of servicing low-income clients, and that simply does not happen when people graduate with a quarter of a million dollars of debt hanging over them. When the recession hit, and law school tuition still went up, when it became clear that law school tuition was somehow “recession-proof,” well, the stories started writing themselves.

The next Clarence Darrow didn’t become a physician. He became a contract attorney because he couldn’t get a job, graduated with no idea how to attract clients, and is struggling to pay down some of his law school debt that he cannot discharge through bankruptcy. He wishes he had listened to me five years ago.

Q. You’ve taken charge of ATL Redline, where you’ve written forcefully, if snarkily, about criminal  and social justice issues. Do you wish you had more experience in criminal law to better address these problems? ATL certainly provides a big soapbox for your thoughts, but is passion enough? Where does your interest in crim law come from?  As to social justice, how is your old law school doing, now that it’s rid itself of the yoke of the Royall Shield? Do you draw a distinction between cops killing unarmed people in the street and ancient, symbolic microaggressions?

A. This is a fun question. Do I wish I was better at my job? I guess the honest answer is “no, not really,” but it’s a bit more nuanced than that.

I wish I had an intern, a legal researcher, or basically a first year associate whom we could pay to sit around all day, waiting for me to ask them a question, then pull up relevant statutes and cases to my point, then go away and let me get back to my narrative. I’d also want somebody to look over my finished pieces, pre-publication, and say, “You know, the contributory negligence standard is a little different in Missouri,” (I don’t know If MO has such a standard and I honestly don’t even give enough of a shit to look it up right now) so I could say “good catch,” or “yeah, I thought about that, but It’s not germane.” A more detail oriented legal mind would improve my offerings, and of course I’d like to produce the best content I can.

BUT… I think one thing that dogs lawyers who write (or blog) is that they get their heads too far up their legal asses. Some of it is comes from a noble desire to be as accurate as possible. Some of it comes from a less defensible place of trying to show how “smart” they are, and how all that legal training and experience is really paying off.  But the risk whenever you are dealing with a lawyer/writer is that caveats, statutory interpretations, and generally prudent ass-coverings lead to BAD writing. Boring writing. Writing that is technically correct and proficient, but is physically painful to read.

Nobody cares about the deep-cut analysis of the NY CPL and how it pertains to arresting Donald Trump for threatening to shoot people in Times Square. Or at least, the two other people who care ALSO have law blogs and their own, competing interpretation. It might sound counter-intuitive, but when I’m writing about law, I’m trying to get the law out of the way as much as possible so we can talk about the more fundamental social or political, or sometimes even the “legal principle” at play. Often, I find the actual statutes and holdings obscure that effort (at least in 800 words) rather than elucidate the questions.

Should so and so be charged with MURDER for doing such and such? That could be a fun post. Does the manslaughter statute in Florida even apply given that the aggravating circumstance there isn’t determined by the trier of fact but … JESUS GOD I’M SO BORED, I WONDER WHAT DRAKE IS POSTING ON INSTAGRAM?

People think I’m joking when I say this, but I don’t need my writing to be *right* on the law. I need it to be *not wrong.* “Right” is a matter for interpretation. Being right requires so much time and effort that I used to get paid much more money just to *attempt* to be right about the law. In this role, as long as I’m not demonstrably incorrect, then I can keep the discussion moving, entertaining and thought-provoking.

But sure, if I could hire 15-years-ago me, and his Westlaw account, I’d put him to work.

Q. You’re almost 8 years in at Above The Law. Is that where Elie Mystal plans to end his days? What’s next for you? Have you considered going back to law? Will you continue to write? Maybe a screen is in your future, whether large or small? Have you ever considered going back to try a case to a jury?  What’s the end game?

A. I would never, ever, go back to being a lawyer (see, e.g., my answer to the last question.)

I would sign up to be a T.V. judge in a heartbeat. I’d race-bait it up too. “Judge Black Guy.” Wouldn’t you watch a show with me just *destroying* privileged white litigants? “You are in this court, disputing ownership of a dog. Not a child. Not a human child. But a dog. We’re talking about a dog. A DOG.”

More realistically, there’s a movie called “Game Over” about the heyday for Atari (the gaming system). Apparently, back in the day, Atari was the very best place you could work in the Valley. Party atmosphere, individual freedoms, a belief that as long as you get the work done, who cares how (or when) you did it. One of the main guys in that movie talks about how Atari “ruined him” from having any other “regular” job for the rest of his life.

I feel like Above the Law has done that to me, a little bit. I have near total editorial control over my own work. I don’t necessarily *have to* wear a shirt in the office. My co-workers bring their dogs to the office. I can have long conversations in an open office about whether a joke that is CLEARLY offensive is *really* too offensive to write. It’d be hard for me to go from where I am to a more hierarchical organization, just to continue writing columns. I mean, I have a price, but it’s no longer cheap.

But, T.V., radio (especially podcasts,) sure I could see that. I have… “things to say,” and I’m interested in saying them to as many people as possible. If I wasn’t writing professionally, I would likely be standing on a street corner shouting at passers-by. I’m serious. When I was at Debevoise, in my limited spare time, I would go to bars, get drunk, and just loudly “make points” towards anybody in earshot.

I can’t do this forever. Blogging is a young man’s game. I was actually on a show with Andrew Breitbart just weeks before he died. We had waaaay more in common than I ever would have thought possible. And you know how he died? Keeled over after getting into a debate at a bar.

I don’t want to go out like that. My ultimate endgame: I’d like to teach. (Don’t laugh.) I’ve been up in “the blogosphere” for some time now, and I know some things about how to do it successfully (both in terms of content production and on the business end.) I’d also have something to add about dealing with, and dodging, some of the legal issues that pop up while writing on the internet. I really enjoy being around young people. I enjoy being in a campus environment.  And I enjoy a captive audience that kind of has to listen to me if they want to get a good grade.

Doesn’t that sound like a useful journalism professor to you? I have two kids and don’t manage my money very well… let’s ASSUME that I’ll never be able to retire. But if I could live out my days imparting what I’ve learned to young people, and getting good seats to football games, that sounds about as close as a guy like me will ever get to “dying in his own bed.”

Cross: District of Colorado Senior Judge John Kane

May 4, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Judge John Kane, Senior United States District Judge from the District of Colorado.

Q. Having graduated law school in 1960, you were nominated and confirmed to the federal bench by President Jimmy Carter in 1977 (well before many Fault Lines readers were born, I should note).  What did it take to become a federal judge back then? You were a young man still, merely 41 years old. Did you dream of ending up on the Supreme Court one day? Looking back, did you have the practice experience, the time in the trenches, that a federal judge should have?  If you knew what you know now, would you still have taken the job?

A. I never had an ambition to be appointed to the Supreme Court.  Having sat by designation with the Tenth Circuit Court of Appeals, while I respect the judges greatly, I have neither the inclination nor the talents necessary to sit on a collegial court.  I love the trial court.  I love the excitement, the mix with lawyers, witnesses, and jurors and the oft times demands to make quick decisions that, by necessity, are more intuitive than deliberative.

When appointed, I had been admitted to practice for fifteen years.  Before admission, I had served as a law clerk for two state district judges.  In law school I had been editor-in-chief of Denver University’s law review and directed its transition from a bar sponsored bi-monthly publication to a full-fledged law journal.  I had won some academic prizes and both the law school and the all-university oratorical contests.

Perhaps more importantly, our law school was located directly across the street from the Denver courts and, as with many other law students, I watched Denver’s best trial lawyers try cases, and got to know many of them by sharing a few beers at the end of their day in trial.  I met many judges through the kindness and interest of these lawyers.  I always asked them for advice about becoming a judge. I wanted to become a judge long before taking the bar exam.

In high school, I had belonged to the Prelaw Club and we made field trips to the courthouse.  I told judges of my ambition to become a judge and asked for advice.  As a consequence, when I went to college, I majored in English Lit and also in Philosophy.  I was an editor on the student literary magazine and acted in a number of student theatre productions.  I began to learn to write and took courses in jurisprudence, legal philosophy, and constitutional law as taught in the political science department.

When first admitted to practice, I was lucky enough to become a deputy district attorney in a suburban county.  In those days, judges were elected on political party tickets.  My first assignments were prosecuting cases to justices of the peace and three person juries.  Most of the J.P.s were not lawyers.  It was a high volume, seat- of-the-pants experience.  Eventually, I was assigned to courts of record and prosecuted both felony and misdemeanor cases.  I then moved back to Denver and formed a partnership with an African American lawyer.  It was the first racially integrated law firm in the state.  Our practice was almost exclusively criminal defense work, but this was in the early ‘60s and we were very active in pro bono civil rights cases.  I also cut my teeth on a couple of potential death penalty cases.

In 1965, I was selected to be the first public defender in the state.  The office was essentially a pilot program in one judicial district that served as a demonstration project that evolved into a statewide public defender system.  In that capacity, I defended a great many felony cases and supervised a staff of lawyers, interns and one investigator.  I also wrote numerous practice subject articles and gave public speeches about the public defender system. (My first intern eventually became the Chief Justice of the Colorado Supreme Court.)  In 1967, I left the public defender position and became the Deputy Regional Director of the Peace Corps in Calcutta, India.  There I engaged in program planning and development, negotiations with Indian and state agencies for new programs and did my best to keep Volunteers out of harm’s way.

I returned to Colorado and in 1970 joined what was then considered to be a large law firm where I engaged in civil litigation handling mostly construction cases, will contests and, to my great joy, matters for newspapers, TV and radio stations, and a magazine publisher.  In the latter category, cases involved freedom of the press, defamation, gag orders and employment disputes.  I continued to write articles and participated extensively in bar association activities such as the formation and early organization of the Litigation Section of the ABA.

When the opening on the district court bench came about in 1977, the two senators from Colorado established a merit selection committee. There were a number of applicants.  I was lucky enough to be selected for the short list of three names that went to President Carter.  I had never been active in party politics, but my support came from my lengthy contacts and relationships with the media and the contacts I had with leaders of the ABA Litigation Section.  Though I didn’t know her and briefly met her once , it clearly didn’t hurt that President Carter’s mother, Miss Lillian, had been a Peace Corps Volunteer in India while I was stationed there.

You asked, “If you knew then what you know now, would you still have taken the job?”  The answer is an unequivocal “Yes!”  I think I am very lucky and I have never regretted it.  One thing I can say with pride is that when I was selected, the senior partner of the firm I was in said he had one request:  “Please do not complain about the salary.”  I never have and I have always declined membership or association with organizations that promote judicial pay increases.  I’m not opposed to pay raises, I’m just keeping my promise.

Q. Before becoming a judge, you served as both a deputy district attorney and a public defender.  What impact did those experiences have on you when you took the bench? Did you find one side to be more compelling, to influence your perspective? Was there a sense of pressure to be more supportive of the prosecution, federal agents? Was it a struggle to maintain neutrality? Did you tend to be more supportive of law enforcement or sympathetic toward the accused?

A. I have been fortunate to have had experience as a prosecutor, a criminal defense attorney, and a civil trial lawyer representing both plaintiffs and defendants. I don’t find either side to be more compelling or to influence my perspective. I think each role has its danger spots. Public defenders have far too many cases and can lose vigor. Prosecutors can become oppressive and abusive of their considerable discretion and civil lawyers can become greedy. But these are temptations that discipline and resolve can prevent.

I don’t believe I am influenced by any sense of pressure from the prosecution or federal agents or unduly sympathetic to defense lawyers. All of them put their shoes on one at a time. Candidly, what I do have frequent trouble with is dealing with laws that I think are counterproductive to achieving justice. The Sentencing Guidelines frequently fall into that abyss.

For the most part, I like lawyers and I like other judges. We are all human and I like some better than others. There are some senior judges who contribute greatly to the functioning of the courts and a few others who don’t. For myself, I find as I get older that I spend more time in doctor’s offices than I would prefer and I am not as productive as I once was, but I’m still eager to take on challenging cases and less enthusiastic about the so-called mill run cases.

Q. For years now, you’ve been critical of the job law schools, and particularly academics, have been doing to prepare the next generation of lawyers. What has gone terribly awry with the concern new lawyers have for their own welfare rather than their clients?  How have law profs failed to indoctrinate their students into a profession rather than a business?  Are the law profs still capable of doing so, since few have ever practiced law?  Are the students today capable of appreciating the client-centered duty they assume when they become members of the bar?

A. Law schools are a microcosm of the universities. The early 20th century economist Thorstein Veblen said that universities should be called “Hire Education.” I agree. The progressive decline of education in the humanities in favor of producing more fodder for industry and corporate America is very disturbing to me. I think law schools offer too many frivolous courses apparently instituted to fulfill the eccentric interests of some faculty members and perhaps even more vapid students.

The basis for arguing that the third year of law school should be abolished is in my view a result of that problem.  I think that if law schools are to award a doctorate degree, then at least an acceptable thesis should be a graduation requirement. I also think the first year of law school should include courses in legal philosophy and rhetoric.  Dean Roscoe Pound defined the legal profession as “an organized body of men [people] pursuing a learned art in a spirit of public service.”

The practice of law and the craft of judging no longer comport with that definition.  Thanks in great measure to Justice Blackmun’s decision in Bates & Osteen v. State Bar of Arizona and its progeny, such as Goldfarb v. State Bar of Virginia, law is no longer a profession; it is a business.  I don’t think the legal academy can be blamed for this, but it doesn’t deserve any credit for correcting it either.

As for judging, the courts are nearly entirely immersed in process rather than substance and are on the path, if not already, to becoming faceless bureaucracies.  Law students today are products of our culture; it has become a technocracy and the dire foretelling of Orwell’s 1984 and Huxley’s Brave New World is more reality than fiction.

Q. You’ve been one of a handful of judges who has openly expressed disdain for the War on Drugs. Was this your point of view when you took the bench? Did anything happen during your time as judge that made you realize that the drug war had gotten out of hand? What impact did the Sentencing Guidelines and mandatory minimums have on you as a judge? Do you find the Guidelines undermine your ability as a judge to impose what you believe to be appropriate sentences?

A. My open disdain for the War on Drugs is unabated. My years on the bench have increased, not ameliorated, my disdain. The War on Drugs, simply stated, is now and always has been stupid and counterproductive. This nation learned of the folly during Prohibition. What we do is subsidize the black market and criminal syndication.

No sentient person would intentionally set out to do what our society has done. Along with the rest of the flotsam and jetsam of the War on Drugs, we have the world’s largest prison population with its characteristic disparate racial population, we have abandoned the concept of rehabilitation, we have increased the incidence of recidivism and developed a pervasive disrespect for the rule of law. I have no moral problem with the criminalization of illicit drug manufacture, importation and distribution, but sending human beings to prison for possession and use of such drugs is unconscionable. We should not be treating a medical problem as a legal problem.

Even the nascent legalization of marijuana in some states has been ill-considered. The taxes imposed have created market prices that accomplish two things: First, more people who would not have consumed marijuana when it was illegal now do. (The same people who obey traffic laws.) And second, an increased number of consumers soon realize that they can obtain illegal marijuana at a cheaper price than the legal stuff that’s jacked up with taxes. Thus, the black market continues to prosper. Our country experienced the same thing following Prohibition with so-called moonshine. We ignore history and we repeat it.

Q. Having been on the bench both before the Guidelines and after they were held “advisory” in Booker, a mere 16 years later, is there a lasting impact as far as federal sentencing? Do you see judges and prosecutors reared on the Guidelines as viewing sentences that would have been deemed very harsh before the Guidelines as ordinary and appropriate now?  Have the courts just become too hardened to the idea of decades in prison such that it no longer seems draconian? Can anything be done to change this?

A. Yes.  The Sentencing Guidelines have a continuing impact despite Booker.  Those judges who did not serve before 1988 have had no experience sentencing without the Guidelines.  Even though the Guidelines are now merely advisory, many of these judges have no other reference point.  In addition, the Sentencing Commission continues and does its utmost to promote guideline sentencing.  It is not in the judicial marrow to push the envelope and so guideline sentencing remains, for the most part, business as usual.

Are the Guideline sentences too harsh? Many of them are, and that explains why most sentencing variances and departures result in lower rather than higher than guideline sentences. Not all, however; some Guideline results are ludicrously low.

I have seen one Sentencing Guideline recommendation calculating a range of 18 to 24 months for a crime having a statutory maximum sentence of ten years, wherein the defendant had more than twelve previous felony convictions. Such a computation was based not on the crime, the effects on the victims or the risks to public safety, but rather because of reductions for “acceptance of responsibility,” serving as an informant and reaching a plea bargain early on so as to save the government time and expense in preparing for trial.

In another case, the defendant had been convicted of three separate counts of identity theft and making false statements to government officials and lying to obtain citizenship after having been adjudicated a human rights violator in Ethiopia, such that the total maximum sentences imposed consecutively totaled twenty-two years. The Guideline calculations came up with a recommended sentence of zero to six months on two counts followed by a mandatory twenty-four months on the third count.  I stated in my opinion, later affirmed and cert denied, that his crime and character were equated by the Guideline calculus in the same category as some Mexican national using his brother’s drivers license.  See my sentencing opinion in United States v. Worku, 12-cr-346-JLK (D.Colo. 2014).  I think it’s worth the read irrespective of this interview.

The other problem is that the Guidelines result in algorithmic sentences that have no connection whatever with individual characteristics or the qualitative differences in characteristics that are allegedly considered in formulating the Guidelines and producing “calculations.”

Q. You’ve been a strong supporter of free speech, as reflected in your decision in the Diana Hsieh case, where you compared her “personhood” paper to Thomas Paine’s Common Sense as quintessential political speech.  Is free speech under attack today? There have been fervent cries to end what’s called “hate speech,” to eliminate First Amendment protections from speech that people find hurtful. What has happened to our appreciation of speech? Is this a problem that exists only on college campuses, or is this happening throughout our society? Are these calls for curtailing free speech finding any support in the judiciary, or are the courts still behind First Amendment protections?

A. Free speech has not received very good treatment from the Supreme Court. Commercial speech was not and is not what free expression is about. The primary function of free expression is to communicate ideas, not products. The freedom of speech is contained in the 1st Amendment and should be read in that context as related to freedom of religion, freedom of the press, freedom of assembly and petition.

There are some categories of expression that are not considered protected within the free speech ambit. One is obscenity and then there is so-called “hate speech.” That’s the sort of politically correct crap now pervading campuses, such as the law school professor who lost tenure because she failed to warn students in a criminal law class that a discussion of rape might “trigger” someone becoming upset or the situation at Brown University where students were provided a comfort room next to the lecture hall because they might become upset. I am not at all sympathetic with efforts to censor speech because it is “hurtful.” If it is, then more speech is the remedy, not less.

I think the courts continue to support the idea of free speech; it is embedded in our jurisprudence. The problem, however, is that the fundamental purpose of free speech has been confused and abused even to the point that the transfer of money is considered speech. Duh?

Q. You’ve also taken a very firm stand in refusing to acquiesce to official recalcitrance by the Denver police in complying with court orders.  In James Moore’s case, you said:

We are demanding the city and county of Denver comply with the law like any other defendant. I once had the marshals seize all the records in the Internal Affairs Bureau, and if I have to do this again in this case, I will.

Were you always ready to take on the Denver establishment? Was it different when you were a young judge? Has anything changed in your willingness to hold the Denver police accountable?

A. I think all organizations, whether public or private, and all individuals, must comply with court orders. No one, including law enforcement agencies, should escape or avoid accountability under the law. To do otherwise is corrupt. If the law is considered unwise, it can be changed, but it should not be ignored or circumvented.

Q. Before taking the bench, you practiced criminal defense and civil rights law in the “hood,” in the only integrated firm in Denver. That was likely a very bold move at the time, and one that could have had significant impact on your career, but it didn’t stop you. Have lawyers forgotten what they do, to take on hard cases, unpopular causes? Are lawyers today far too worried about their own welfare? Have lawyers lost their understanding of what it means to be a professional?  What can be done to bring lawyers back to their roots, their dedication to professionalism rather than what makes them happy or makes them money? Is this a law problem or a societal problem, where things like work/life balance are more important than responsibility, character and principle?

A. See my “Swan Song” speech.  Stated simply, if being of service to others and being a champion for others is not your primary motivation, there are a hell of a lot easier ways to make a living. I think that practicing law as a service to others and to the stability of our society has many more rewards than net income.

Q. Of all the changes you’ve lived through in your almost 40 years on the federal bench, what has had the biggest impact on criminal law?  So much has happened, from the militarization of the police, the drug war, the ubiquity of video, technology crimes. What stands out as the most positive change in law? And what’s the worst change you’ve seen?  There are rumblings that the profession of law is on the decline, perhaps even on its death bed. Is it over for lawyers? Is it over for the law?

A. The most positive change in the criminal law in the forty years I’ve been involved is, I think, the development of legal access, the right to counsel for all people. The worst change has been the Sentencing Reform Act and its influence on state systems to implement quantitative rather than qualitative criteria in legal thinking and sentencing.

The administration of justice is a matter of aesthetics, not physics.  Human beings are unique, individual and worthy. They are not the products of cybernetic calculations. There will always be law, but what kind of law is another matter entirely. In each instance, it is best to remember Andre Gide’s dictum that “a mind incapable of revolt and indignation is a mind without value.” Of course, our situation is not good; our obligation and reason for being is to make it better.

Photo Credit: Helen Richardson, Denver Post

 

 

Cross: Cathy Young, Fighting For The Mind of Feminism

Apr. 27, 2016 (Mimesis Law) — Ed. Note:  Scott Greenfield crosses Cathy Young, columnist for Newsday, RealClearPolitics and contributing editor at Reason.

Q. Moscow. Not the one in Pennsylvania, either. It will likely come as a surprise to many to learn that for the first 17 years of your life, Cathy Young was named Ekaterina Jung. You moved from Moscow to the United States at 17. What did Ekaterina want to be when she grew up? Looking back on your tender years in the Soviet Union, did you aspire to be a writer? Were you interested in law and civil rights? Did you imagine you would end up a highly respected newspaper columnist in the United States? And what did you think of the U.S. back then, evil empire or land of opportunity?

A. Actually, I wanted to be a writer for as long as I can remember. I was writing fairy tales in block letters when I was four or five and illustrating them myself. My mother still has a couple of those notebooks! I also wrote a couple of installments of something like a first-person column about parenting based on a role switch for myself and my mother—I was writing as a mom raising my daughter, Marina (my mom’s actual name). In one of them, I explained that “we” never sent Marina to day care (some 95% of Soviet children were in day care at the time) and concluded, “The child was growing up free in her parents’ home.” My goodness, I was a preschool libertarian! Not to mention a very weird child.

I actually had dreams of becoming a fiction writer through my teens. I wrote a lot—poetry, short stories, novellas, I even wrote a whole novel set in ancient Rome during the Spartacus rebellion. Journalism wasn’t really on my radar (and of course what existed in the Soviet Union at the time couldn’t really be called journalism). Law and civil rights? Well, as a teenager I was very aware of the Soviet dissidents; my parents were closet anti-Communists who had underground literature at home and listened to foreign radio broadcasts, and unlike many other people with heretical views they did not try to hide any of this from me. Human rights activists like the late Andrei Sakharov, the physicist turned dissident, were my heroes. One thing I certainly never imagined at the time was that someday I would get to interview his widow Elena Bonner, a great human rights activist in her own right.

What did I think of the U.S.? Land of the free, totally. I remember reading an article in a Soviet newspaper that quoted some American professor as saying that freedom in the United States was a myth. And I thought, “Well, if the professor can say that and not only stay out of jail but keep his job, maybe it’s not such a myth.”

Q. You attended Rutgers University and wrote for the Daily Targum (our second Daily Targum writer in two weeks, I hasten to note). For most Americans, who can barely write in English, no less graduate college in a foreign land, that’s an extraordinary accomplishment. What did you want to do as an undergrad? Was writing always the goal?  Did you want to be a reporter or a pundit? Given your education in Russia, how hard was it to transition to majoring in English at Rutgers?

A. I actually spoke decent English when I got here, after attending a school in the Soviet Union that specialized in English—and reading very extensively in English when I was still in Moscow. (I made a one-hour trek to a library that had a lot of English-language books!) I spent two years attending a community college—Brookdale, which is pretty good as community colleges go—before going to Rutgers, so you could call it slow immersion. By the time I was an undergrad at Rutgers, I think I was fully bi-lingual, I definitely wanted to be a journalist. My role model was George Will.

Q. After graduating from college in 1988, you wrote a book, Growing up in Moscow: Memories of a Soviet Girlhood. Was that the plan? Did you see yourself as an author, rather than journalist cum pundit? You developed a sense of feminism. How did that happen? What about Mother Russia gave rise to your views? When you came to the U.S., what role did your feminist views play? How did your Soviet view of feminism fit with the American flavor in the 1980s?

A. I actually didn’t have any specific plans for a book at the time. I was writing a column for The Daily Targum, and William Vesterman, a Rutgers professor who was also putting together a collection of short essays as a textbook for writing courses, contacted me about reprinting a couple of my columns (he thought it would be good to include one or two student authors). Bill, who is a great guy—he recently retired—became my mentor. He invited me to speak at his son’s high school about growing up in Russia, and when he was driving me back he asked if I had thought of writing a book. I hadn’t. He introduced me to a friend who, in turn, introduced me to Katrina Kenison, an editor at Ticknor & Fields (a Houghton Mifflin imprint that, alas, no longer exists). I wrote a sample chapter and she wanted the book.

As for feminism, I became a feminist in Russia, which was a very weird society with regard to gender. Virtually all the women were in the workplace, there was a lot of rhetoric about equality, but very traditional views of manhood and womanhood were also enshrined. I remember being very pissed off when someone told me that girls don’t fight. It’s not that I was that eager to fight, it was more the principle of the thing. There was a lot of random sexism like that—the idea that it’s not as important for a woman to be smart, or that it’s a great tragedy for a woman to not get married, or that it’s really sad for a man to have only daughters. (Not that my dad ever made me feel that he had any regrets about having no sons—he never would have called himself a feminist, but he was the most egalitarian man I’ve ever known.) I remember telling another girl when I was 12 that it was unfair that being unmarried was considered shameful for a woman but not a man, and she shrugged and replied, “That’s because if a man isn’t married, it’s understood that he didn’t want to get married, but with a woman everyone knows it’s because no one would marry her.”

When I came to the U.S., I thought at first that feminism was wonderful! I really felt that here people were judged as individuals and not by their gender, and I think for the most part that was feminism in the 1980s.

Q. After the book was published, you started your newspaper career in earnest. How did that happen?  Did you start as a reporter, or go straight to columnist? At that point, were you focused on issues of civil rights and constitutional freedoms? Was there a specific focus, political or legal?  Did you ever consider going to law school?

A. I actually started writing for the Detroit News in the 1980s, even before the book came out—I think one of Bill Vesterman’s friends hooked me up with them—and it was mostly columns and book reviews, dealing with Russia, feminism, and campus issues. They offered me a column in 1993. I never really did the reporter thing, but I did write feature articles about my trip to Russia for Reason and The American Spectator (this is when Gorbachev’s reforms began—I went to Moscow five or six times from 1990 to 1994). I didn’t focus on legal issues a lot, back then, but I did take a couple of pre-law classes at Rutgers, including one in constitutional law. My professor told me I had a really good grasp of legal issues and asked if I had ever considered law school. I can’t say that I did, though.

Q. Your views reflected a libertarian perspective, small government, personal responsibility. Had that been your politics all along, perhaps even before you arrived in the Garden State?  What made you embrace a conservative perspective? Having been raised under the Soviet regime, one can well understand where distrust of government and self-reliance could be highly valued, but did that still hold true in America?

A. As I said, I was a preschool libertarian! I also recall that at the age of 17 I wrote in my diary, “I think generally, the best government is one that makes it presence the least felt in people’s lives.” I had no idea I was channeling Thomas Jefferson, who said it much better! I wouldn’t really call it a conservative perspective though—I never liked the social traditionalism. I will also say that while I think intrusive government is a very legitimate concern in the U.S., I’ve never had much sympathy for libertarians who, as somebody quipped, don’t see much difference between the KGB and the department of agriculture. The size of government and the welfare state in a liberal democracy is a legitimate debate. Liberal democracy versus totalitarianism (or authoritarianism) is not.

Q. In 1996, as a Cato Institute research associate, you co-authored a policy paper, “Feminist Jurisprudence: Equal Rights or Neo-Paternalism?” What was your impetus for getting involved in the legal end of equal rights? How did you come to see the shift from equality to the new paternalism so early? Was this an outlier view at the time? What was the reception to this within the feminist community?

A. By then, I really did not like where feminism was going. The deification of Anita Hill during the Clarence Thomas hearings in 1991 was part of it—I saw an alarming tendency to focus on male bad behavior, on a personal level, in a very one-sided way. The idea that all sexual banter or humor in the workplace is oppressive to women seemed incredibly reactionary to me.

There were some debates around rape that are very similar to what’s happening now; domestic violence was a huge issue after the O.J. Simpson case—again, it’s a real issue, but the focus on women as victims and the vilification of men really bothered me. It seems to be the opposite of treating people as individuals. I don’t think I was necessarily an outlier; Christina Hoff Sommer and Katie Roiphe were two people writing from a somewhat similar perspective at the time. As for the feminist community, I recall Susan Faludi, the author of Backlash!, writing an article for Ms. Magazine where she referred to Sommers and me as “faux feminists.” That was typical.

Q. In 1999, your second book was published, Ceasefire!: Why Men and Women Must Join Forces to Achieve True Equality. What drove you to buck the trend and challenge the perspective of neo-feminism?  Do you see the legal trends as helping to achieve equality, or was it driving men and women further apart? Was the gender war already beginning? Was there still hope that it could be reined in before it got out of control? Did your book help?

A. Again, I wasn’t the only one. Katie Roiphe wrote The Morning After, which focused on campus rape. Christina Hoff Sommers wrote about those issues in Who Stole Feminism?, and there’s also a wonderful book by Daphne Patai, a professor at the University of Massachusetts/Amherst, called Heterophobia: Sexual Harassment and the Politics of Feminism. There are a few of us! The legal trends were and are part of the larger cultural trends, but I do think that neo-feminism in general was driving men and women further apart. The call was to treat men as an oppressor class and women as a victim class—so that, for instance, men telling sexual jokes around women in the workplace was seen as trying to “put women in their place,” but women telling sexual jokes around men was fine because women, presumably, have less power.

The gender war was well under way! I mentioned in Ceasefire! an article, I forget by whom but it was in some major publication, that said, “To be a woman today is to be angry.” In 1994, U.S. News & World Report, which at the time was actually a major weekly, had a cover story about “The War on Women.” Some of it, admittedly, was about fundamentalist Islam and the danger it posed to women’s rights. But it also pushed the idea that domestic violence in American society, where wife-beating is held in universal contempt, is organized male terrorism against women.

I actually hoped that things could be brought back to a sane middle, and for a while it looked like radical feminism was in retreat—the Clinton sex scandals definitely dealt it a blow because suddenly, it was the progressive feminists who were saying things like, well, sexual advances in the workplace aren’t necessarily sexual harassment! And then September 11 came about and attention shifted away from gender issues. But of course gender-war feminism hadn’t gone anywhere. I think we all overlooked the extent to which it had captured college campuses, and now the young people who were in college back then being fed radical feminist theories on “the dynamics of gender and power” are largely running the media. It’s scary.

Q. You’ve since become a clear voice of what might well be described as old school feminism, equality as opposed to special treatment of women as too fragile to be responsible for their choices. What happened to the fight for equal rights?  What started the cries for special treatment for women? Is there any merit to the demands for special treatment? Does the fact that women were the target of discrimination give rise to some justification for paternalistic laws?

A. I thought I was a “professional female misogynist,” as per Amanda Marcotte! I think there has always been a tension in feminism between equality and paternalism (or maternalism?), going all the way back to the 19th Century. But it’s several things, really. One, I do think that in terms of political and legal issues, feminist battles have been won; what remains is what I’d call work-life balance, and those issues are much, much tougher to solve, because they have a lot to do with personal choices and relationships.

So because the political movement still needs something to do, there’s a compulsion to seek out oppression in the most trivial places. (Like “manspreading”!) Two, I think many feminists have this bizarre idea of male power where men have always been able to do anything they want and not have anything bad happen to them, so if anything bad or demeaning happens to a woman, it’s patriarchy, obviously! Now, I don’t buy into the idea that some men’s rights people have that men and women have always been equally oppressed, but this notion that men just breeze through life doing whatever they want is ludicrous. And of course if that’s what you believe, you’re going to feel that women are wronged all the time.

I also suspect that for some feminists, the clamoring for special protections comes from a hidden attachment to traditional male and female roles. They want to be the damsel in distress, but with a politically correct twist.

Plus, it’s not just feminism. Identity politics and demands for special protections are all the rage right now—on the left and now also on the right, with the Trump phenomenon. Let’s complete the circle of oppression with identity politics for white guys!

Is there any merit to special treatment for women? Well, there are times when pregnancy and childbirth obviously create issues that don’t exist for men. But I don’t think past discrimination justifies special treatment. Otherwise, you just end up with more discrimination, now at the other end.

Q. You are a regular columnist and op-ed writer for a slew of newspapers, such as Newsday, New York Times, Wall Street Journal, Boston Globe and Reason, critical of legal protectionism, particularly when it comes to issues of rape and sexual assault. Your interview with Emma Sulkowicz, the “mattress girl” of Columbia University, was attacked as being “anti-feminist” because you weren’t sufficiently supportive, and had the audacity to include her putative “rapist’s” perspective as well. Is it possible to report or opine about rape today with any balance without being called “anti-feminist” or misogynist”? Has feminism become intolerant of anything besides adherence to its orthodoxy?

A. I’ll just answer those two questions at the end:

  1. No.
  2. Yes.

On a more serious note—obviously, it’s a big country and a big Internet, and of course someone is always going to call you names. The problem is more when that kind of intolerance becomes mainstream, when you have, for instance, people disinvited from college campuses because they have the heretical opinion that the presumption of innocence should apply to rape cases. It’s happened to me, too. There are feminists who respect dissent, but the dominant strain of feminism today is the fundamentalist one, for lack of a better word.

Q. You’ve also waded into the culture war of GamerGate, calling it “a backlash against a particular kind of feminism, one that has a tendency to look obsessively for offences, read ideology into everything, and demonize male sexuality under the pretext of stamping out ‘the objectification of women’.” Are women wrong to find “objectification” unacceptable? Are their complaints legitimate, or are they searching desperately to find offense where none exists? Where is the line? At what point does the demand for equality turn into demonizing males without justification? Is there a right and wrong side to GamerGate?

A. Reactions to “objectification” are a very personal thing. I have a good friend who can’t stand the “social justice warriors” and sympathizes with GamerGate, but is also annoyed by some of the ways women in many videogames are gratuitously sexualized—meaning when it doesn’t suit the character well. However, she’s been able to find a lot of games she likes and doesn’t go crusading about it! Honestly, I think it’s a legitimate issue to bring up, but you need to pick your battles. Some of the complaints have been really nasty and ridiculous, like “Catwoman in the Batman games is too sexualized.” Wow, Catwoman is sexualized? What next? The Joker is too sadistic?

As for when the demand for equality turns into demonizing males…I think when you start using “man-” as a pejorative pretext, you’ve definitely crossed that line.

GamerGate is a complicated phenomenon. It has its bad elements, like any anarchic movement. I’ve written before that any backlash against radical feminists and “social justice warriors,” even if it comes primarily from sane people, is going to be a magnet for actual misogynists and bigots. GamerGate does have that fringe. Unfortunately, the mainstream media contributed to the problem by demonizing the movement en masse, which empowered the extremists.

Q. Another issue you’ve focused on is the campus sexual assault issue that has driven colleges and universities to create adjudicatory systems that are long on believing women, no matter what, and short on due process safeguards for men. Is this the neo-paternalism you foresaw in 1996?  Have things gone too far to be salvaged? What do you see as the by-product of higher education that has forsaken concern for males in favor of females? Will this leave a scar in the culture war that may never heal? Can women return to the days of equality after eschewing it in favor of special treatment? Will there ever come a day when feminism returns to equality?

A. Oh, what we’re seeing now is the chickens of the 1990s coming home to roost. The campus programs that Katie Roiphe and Christina Hoff Sommers and I wrote about—they faded from visibility for a while, but now they’re back with a vengeance. Affirmative consent was a new idea back then, and even most campus activists considered it too radical; but it was being promoted in a lot of campus sexual assault workshops, and now vast numbers of students think it’s normal, or at least they say they think it’s normal because I doubt that many people actually practice this.

It’s not just males versus females; college campuses right now, especially the more elite schools, are in the grip of completely insane identity politics. It’s doing major, major cultural damage. Can we pull back from that? I hope so. A return to sanity on gender issues will have to be a part of that, but only one part. I see some hopeful signs, but there will have to be a lot more people speaking out for a humanist vision based on equal rights.

Cross: Cristian Farias, From Fault Lines To The Supreme Court

Apr. 20, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses former Fault Lines contributor Cristian Farias, who is now the Supreme Court reporter for Huffington Post.

Q.  As all good Jersey boys who can’t sing do, you went to Rutgers, and chose journalism as your major. What motivated to you to want to write?  Was this a matter of “writers gotta write,” or did you have grander aspirations? You wrote for the school paper, the Daily Targum, while at Rutgers. Was there some particular area of journalism that got your blood flowing, or was it all about the writing?  And even as a student journalist, you broke a big story. What was that about?

A. From even before I went to college or settled on journalism school, I knew I could string sentences together but had no inkling that writing would one day become a career. I hadn’t even declared a major when I saw call for submissions at a low-brow, no-name digital music “zine” that was looking for new writers. My first article was a music review of a Pearl Jam CD, back when CDs were a thing. I didn’t get paid a dime for it, but the editor liked it and asked me for more stuff. You could say seeing my byline next to a published piece lit the spark that set me down this path.

After about a year of working for nothing, I decided I should maybe study journalism. But by then I began getting paid for it, and getting groomed by professional journalists on how to write, proofread, and structure stories – still in the narrow field of music journalism, but enough to eventually getting published by the likes of Billboard and working directly with record labels writing artists biographies. The gig helped me pay for college: on graduation day, I was more worried about a deadline I had to meet that day than actually walking.

As for the story I broke as a student reporter, I discovered that Rutgers, at a time it was seeking to grow its collegiate sports program, had hired a building contractor for its football stadium expansion that had recently been fired by the state of New Jersey for all sorts of building irregularities in dozens of schools it had built. The story basically made Rutgers look really bad because it gave the impression it didn’t do its do diligence prior to hiring this company.

Q. After college, you went for a test drive in journalism. How did that go? You didn’t stick around very long. Why not? And from there, you headed orthogonal and became a probation officer for the New Jersey Superior Court. Why P.O.? You worked with felony offenders, both to help them out of the hole and enforce the rules. What was it like? What did you learn from working with probationers? Did you come to love them, hate them, both? How did it affect your view of the “guilty”?

A. When I graduated from college, I had already been in journalism for several years and had upwards of 1,000 clips to my name – I had met Bono, gone to a few cool shows, and enjoyed other perks that come with doing entertainment reporting. I loved what I did. I took a chance with probation after I received an unforeseen phone call from the state of New Jersey – they were seeking bilingual pretrial officers to write presentence reports. I had no idea what those things were, but came to find out it’s a lot like journalism – you interview defendants, review the facts underlying a conviction, call up family members and dig up the person’s family, medical and criminal history, and then put together a narrative for the sentencing judge to make an informed decision. And it was a 9-to-5 job, which was a nice break from the weird work schedule of a freelance reporter.

After about a year of writing reports, I requested a transfer to adult supervision, and that’s where I really learned the nuts and bolts of what people commonly associate with probation: office visits, trips to the local jail, drug testing, home visitation, violation hearings, and generally keeping up with all your clients.

I was really committed to all of them. They teach you this bromide in probation that you’re equal parts a law enforcer and a counselor, so I tried hard to strike a balance between toughness and compassion. A dirty urine for weed wasn’t enough for a violation for me, but it may have been for other officers – as much as I could, I tried to keep my clients away from having to go back to court and instead pressed for them to go back to school or to get a decent job.

I wouldn’t say I loved them, but in speaking with and getting to know them, I came to understand why they may have gotten in trouble with the law in the first place. More often than not, I sensed their guilt stemmed from sheer stupidity, stressful living conditions or hanging with the wrong crowd, not a hard-and-fast guilty conscience. Most of them were harmless and just wanted to get on with their lives.

Q. As a probation officer, you were primarily assigned Spanish-speaking defendants, which is understandable given that you’re a native Spanish speaker. But was there a sense that you were pigeonholed because of it?  And what about your defendants, who were also Spanish-speaking? What role did language play in their success and yours? Did you ever get the sense that if they were given great opportunities, language notwithstanding, they would have been CEO of I.B.M. rather than on probation?

A. My caseload was different from everyone else’s in that I was not assigned to a specific neighborhood or town, as my colleagues were. Instead, I supervised the vast majority of Spanish-speaking defendants in my unit, all of whom were scattered geographically in a large county, which meant people from different walks, countries, socioeconomic backgrounds, and even types of crimes for which they were put on probation. I didn’t feel pigeonholed by the assignment at all – in fact, I relished the fact that I got to take longer drives and have a broader reach than other officers who were just assigned to a particular hood.

Speaking in Spanish is interesting because there are certain nuances about it that force you to address your clients in a forceful but very formal manner – almost as if you’re dealing with cadets in a military school. I kept it cordial, but I was also extremely formal with them and even had a habit of wearing a tie to the office, which almost no one did. I thought of it was a simple but important way to command respect while showing that I respected them, independent of what they may have done that got them in trouble.

But perhaps the biggest realization that came with communicating chiefly in Spanish with them was learning how little they knew about the criminal justice system, due process, and the things you see on TV such as Miranda warnings and the right to an attorney who speaks in their language. Not that they didn’t receive any of these protections, but the language barrier, it seemed to me, led to some unfortunate convictions simply because they didn’t know how to explain themselves to their lawyer or didn’t understand that pleading guilty in exchange for no prison time still means you’re guilty.

Q. After a couple years at probation, you went on to law school. What made you decide that law school was where you wanted to be? With your background at probation, did you go into law school with the idea that you wanted to practice criminal law? How hard was it to go from earning a living to going back to law school?  How did you fit in with the “kids”?  You were “managing articles editor” on law review. Was that because you had too much free time, or were you back to “writers gotta write”?  You also continued to freelance write and publish throughout this time. Did you wonder whether law school might not be where you belonged?

A. So many loaded questions. Being a probation officer made me realize that I could effect change as a criminal defense lawyer before it was too late. So yes, I set my sights on practicing criminal law. But then something weird happened in law school: I discovered this thing called the Constitution, and started learning about civil rights, equal protection under the law, and the general awfulness of the Supreme Court in safeguarding some of these things.

Perhaps as a result of that awakening, my first summer internship was in the Office of Pro Se Litigation in the Southern District of New York. U.S. Magistrate Judge Sarah Netburn, who was the office’s chief counsel at the time, hired me because she thought I would do well, given my background, reviewing civil rights filings by state prisoners and others who alleged abuses by New York cops. It was a cool gig that taught me a thing or two about drafting orders and judicial opinions. And it allowed me to meet a lot of people and hobnob with a few federal judges, including Chief Judge Loretta Preska, who is extremely personable and a lot of fun after she’s had a few cocktails.

I happened to fit in very well with the kids because CUNY Law School doesn’t accept many of them. At the time at least, many of its applicants had impressive careers in public service or doing quasi-legal public interest work, so it was heartening to be able to study alongside people who actually had some working knowledge of the world and its messiness. And yes, going back to school for no pay or benefits was generally terrible—my wife deserves an award for tolerating my law school experience and the massive pay cut. But the experiences were invaluable, and as doors have opened along the way we have marveled at how all of these milestones actually fit together.

As for law review, I had heard about it and I thought it made sense to do the grunt work given my background as a writer and editor. It was thankless, grueling work – and I never had delusions of grandeur from it – but I figured it couldn’t hurt on my résumé.

Q. During law school, you became involved in Latino rights. What caused you to put your energies toward the cause? What were you experiencing that made it important to you? Was this a matter of prejudice that you experienced, or was this a broader concern for the Latino community? Did non-Latinos “get it”?  What is it that needed to be told but didn’t manage to get through? Is it getting any better?

A. I got involved with CUNY Law’s Center on Latino and Latina Rights and Equality because its director at the time, now New York Court of Appeals Judge Jenny Rivera, is a badass. She picked two fellows a year to help her with her research and the center’s work, so as soon as I learned about the opportunity, I sprang for it. I was floored when I got it. Working for the cause, as you call it, comes from a recognition that Latino rights, for a long time, have been subsumed in the larger discourse and struggles for the civil rights of blacks in this country.

But Latinos, like my clients when I was an officer, face very unique struggles – language barriers, the fear of immigration repercussions, discrimination in housing and lending, abuse by employers who steal their wages, and other kinds of marginalization. A lot of this is simply on account of the fact they don’t know better, are poorly educated, or simply because they are reluctant to speak up. So to the extent that the work we did helped illuminate these issues and the long road still ahead, it was an extremely valuable experience.

As a side note, a lot of my former bosses are now judges, so that’s probably a good sign for whoever decides to employ me in the future.

Q. You came out of law school in the midst of the worst job dearth for new lawyers ever. What did you want to do coming out? What was your dream job?  Was it all crim law, or would any law do?  Prosecution or defense, or either?  Was there a direction in law that you were burning to go, but the opportunity wasn’t there?  And how, at this juncture, did writing fit in?  Was there still some place in your head that wouldn’t let go of your desire to write?

A. My dream job was either in criminal defense or civil rights work of some kind. That’s it. The former, in particular, was fueled in part by what I did my second summer out of law school: I went back to the Southern District, this time to the Federal Defenders of New York. That office has a number of lawyers with decades of combined legal aid experience – enough to make you want to become a public defender. It was interesting, because it has this reputation as an elite office, given some of the client’s it’s represented, including New York’s infamous Cannibal Cop and some high-profile terrorism defendants.

But it also has a number of run-of-the-mill drug cases. Perhaps my happiest and most fulfilling memory from that summer was when I helped win a sentence reduction motion for a client who was sentenced under now outdated guidelines for crack cocaine. His case was old, he was Spanish-speaking, and he had tried a number of times to seek a reduction, but he was always denied. There was also a gun involved in his offense of conviction – which wasn’t even his and he never touched – so that complicated the case a bit. But we won the motion and my guy got five years chopped off his sentence. Sadly, he still has seven more years to go, so it was a bit of a Pyrrhic victory.

It’s funny, because the other day I saw the attorney I worked with in that case at the Supreme Court — he was arguing a case in favor of a sex offender who was challenging a 10-year sentence under a silly statutory enhancement for “aggravated sexual abuse … involving a minor,” even though the guy’s prior conviction was for conduct he engaged in with his former adult girlfriend. Go figure. The court didn’t buy his argument. But Elena Kagan, joined by Stephen Breyer, did — she may be the next Scalia.

Of course, I would’ve gone back to work there after law school in a heartbeat. But they don’t take brand new law school graduates – they want you to pay your dues being an overworked public defender elsewhere. I don’t blame them – I hear baby lawyers can be hard to deal with. But I wasn’t just any baby lawyer. Maybe I’m digressing. Maybe in a next life.

Q. You took some initiative by writing freelance posts for Slate, The New Republic, and other outlets after law school. One of your Slate posts caught the eye of New York Magazine’s Jonathan Chait.  Then, in one of the ballsiest moves ever, you proposed to New York Magazine to take you on as their legal/Supreme Court writer. Where did that come from? Did you think this was going to happen, or was this just a shot in the dark?  What about when they said “yeah, sure”? Did it hit you that you, fresh out of law school, were about to have your words dissected by a million eyes looking to rip them apart? Did you say to yourself, “holy crap, what have I gotten myself into?”

A. As I was having epiphanies about doing civil rights work, I began to pay a lot of attention to the Supreme Court and to important civil rights cases, including the big stop-and-frisk lawsuit in New York and challenges to the Voting Rights Act and to affirmative action programs. While I was still in law school, I actually wrote an op-ed in Spanish for El Diario, New York’s Spanish newspaper, about one of those decisions, and once again, seeing my byline in print kind of awakened my journalistic sense. That set me on my post-law school path to write about legal issues – I started tweeting more, blogging more, writing more op-eds, reading Simple Justice more. In short, I wanted to bring myself up to speed on writing about the law for a general audience after writing law school hypos and essays for three years. I needed to reconnect with my roots.

The Slate post that got Jon’s attention was an analysis I did of something Justice Sonia Sotomayor said during oral arguments in King v. Burwell, the second big Obamacare case. That thing went sort of viral – an editor there told me it was the most-read legal piece on the site in March of last year, and it was shared more than 35,000 times on Facebook. Jon called the piece “smart,” which was very kind of him.

We spoke informally a few times afterward, and after noticing his own outlet didn’t have someone writing about the Supreme Court, I made my move and connected with one of the editors at New York Magazine, who liked my work and voice and brought me on board to cover all the end-of-term cases – including the Obamacare case, gay marriage, a fair housing case, and a “Facebook threats” speech case, among other big cases.

Interestingly, my proudest work at New York Magazine had nothing to do with the Supreme Court, but with New York: The story of Kalief Browder’s death last summer and Cesar Vargas’s admission to the New York bar as its first undocumented lawyer are two of my most favorite things I’ve written.

Seeing some of these articles blow up and getting read by a huge national audience is truly something I wasn’t quite ready for. But as I look over the stepping stones and how life was teaching me and grooming me for this moment – taking me through journalism to work in the criminal justice system to law school and then back – somehow made a lot of sense. I had to embrace it and accept that this was perhaps what God was preparing me for.

Q. After the end of the Supreme Court’s term, you had some choices to make. Law or journalism. While one choice, becoming one of the “founding writers” at Fault Lines, was certainly a wise one, what was going through your mind? Did it concern you that if you pursued journalism, you would never practice law, never cross-examine a witness, never get to feel what it was like to get a two-word verdict? Do you ever wonder how you would do in the trenches, with someone’s life in your hands? Would you still like a shot at taking a case to trial?

A. Yes, to all of the above. In a way, I haven’t discounted working as a criminal defense attorney, or a lawyer more generally. But at 35 and with a wife and child to support – plus school loans to pay — you have to make choices. If all of this had occurred at 25, then I’d be making different calculations. But then again, at 25, nobody really hires you to write full time about the Supreme Court unless you have some working knowledge of journalism, the law, and how the institution works. So in a way, I’m grateful that things turned out the way they did. At this juncture, I’m not sure that I’ll ever get to step in a courtroom other than to cover oral arguments. I think I can live with that.

Q.  After your gig with New York Magazine, you caught the attention of The Huffington Post and went to work with them as their Supreme Court reporter. What was it like to walk into One First Street and know that a million people would learn what the Court decided based on your writing? Did you feel a huge sense of responsibility? Were you afraid of the prospect of writing something that might get it wrong? What about the “deans” of Supreme Court journalism, the ones who had been writing about law for decades? Did they welcome you? Was this a fraternity of legal journalists who talked about cases, shared their thoughts, discussed what happened before them?

A. Covering the court as a “beat” rather than as a freelance assignment are two vastly different responsibilities. I was a little intimidated at first because as an outsider I just thought it was a matter of showing up and start covering things. But there’s actually this very formal relationship between the court and the press that takes some time getting used to.

Chris Geidner, BuzzFeed’s legal editor, explained it to me in a way that sounds weird but makes a lot of sense the more time I spend at the Supreme Court. He explained it in terms of concentric circles, with the innermost circle belonging to the “deans” of the court – NPR, The New York Times, The Wall Street Journal, The Washington Post and others. Then come the specialized press that’s always there but covers the court for a specialized legal audience, like SCOTUSBlog, The National Law Journal, and Bloomberg BNA. After that is the press that Washington reads – the POLITICOs of the world. Then there’s the digital media outlets that cover the court regularly, like The Huffington Post, BuzzFeed, and Slate. And finally it’s everyone else: Those who only show up only for the big cases, like the immigration one on Monday. It was a madhouse in there, and I probably knew about 20 percent of the reporters there, if that.

The court has a different relationship with each circle that it’s somewhat hard to explain in a limited space, and learning to understand that has taken some getting used to. But on the whole, the court has been very accommodating and helpful in facilitating my coverage. My editors have also been very encouraging in guiding me and reminding me that we’re writing for everyday Americans – that our audience is broad and social and engaged by writing that is lively, accessible, and not overly wonky or too dense. Being reminded of that has allowed me to lighten my prose a bit, but never to sacrifice accuracy for the sake of expediency.

As for the other journalists “who live” at the court, most of them have been very kind – though I’ve noticed that it’s easier to build a rapport with younger reporters with whom you share a concentric circle. That’s not to say I haven’t built bridges elsewhere. Some of the nicest people I’ve encountered are Tony Mauro and Marcia Coyle of The National Law Journal, as well as Kimberly Robinson of Bloomberg BNA, Lawrence Hurley of Reuters, and Prof. Garrett Epps of The Atlantic, among others. There’s a lot of congeniality.

As for the fear of “getting it wrong,” that’s always there. But reading the briefs and becoming appraised of the issues prior to a hearing really helps – the more you know the case prior to oral arguments or a decision, the easier it is to break down the issues for a lay audience. What helps, too, is that covering the court as a reporter is a little different from covering the court as a columnist, which I did in my prior adventures here at Fault Lines or with Slate or New York Magazine. That kind of writing was more focused on analysis and sounding smart and having a strong opinion about what the court is doing. Being a reporter constrains you a bit to the facts and the law of the case – the who, what, when, where, and how of things – with far less room for editorializing.

Knowing the difference and when to employ which voice is key, and I’m deeply grateful that my editors give me the freedom to do both depending on the situation.

Q. Now that you’re an old hand in the Supreme Court, what do you think about your early writing on the law? It wasn’t always smooth sailing, but was that just part of the process or do you ever cringe at what you wrote?  Have you found a home in the Supreme Court gallery, or is there someplace else you would rather be? Are you good with a future in legal journalism?  Is there any bone in your head telling you, “but it would still be great to take a case to trial”? Do you wish you had the experience in the trenches when you sit down to write about law?

A. Oh yes, I still cringe at some of those early missteps. They’re generally awful. But you learn a ton from them. I wrote a piece early on during my time here at HuffPost for which I caught a lot of flak — it wasn’t wrong factually, it’s just that my analysis could’ve used an editor who knows a lot about the law to keep me in check and help me beef up some of my conclusions. As fate would have it, it took an editor who, I later learned, had previously worked at Legal Times to update it to reflect what I truly meant, with a big note at the bottom to note that the piece had been updated. She’s a wonderful editor, and my go-to person whenever I’m about to drop a piece that I feel needs an extra set of legal eyes.

Right now I just want to do this for as long as I can and get really good at it. Lucky me, I happened to come on the beat the year Justice Scalia died, there’s an ongoing confirmation fight, a presidential election that could truly remake the court for a generation, and at least six blockbuster cases that could change the face of constitutional law for a long time. I always hear talk of the Supreme Court facing a “term of the century,” but it never truly is. This one may actually turn out to live up to those expectations, and to think that I get to cover it all is really humbling and exciting.

Cross: Ellen Yaroshefsky, In The Trenches of Criminal Law Ethics

Apr. 12, 2016 (Mimesis Law) — Ed. Note:  Scott Greenfield crosses Cardozo Law School clinical professor Ellen Yaroshefsky, just appointed as the Howard Lichtenstein Distinguished Professor of Legal Ethics and Executive Director of the Monroe H. Freedman Institute for the Study of Legal Ethics at Hofstra Law School.

Q. You are the “go-to” expert on criminal law ethics, and appeared as a witness on behalf of Orleans Parish Public Defender Derwyn Bunton at a hearing before Judge Arthur Hunter. Did you figure this is where you would end up when you decided to go to Rutgers Law School back in the Stone Age? What made you want to be a lawyer? Was it crim law going in, or did you have something else in mind? Was it crim law coming out, or was that an accident?

A. It is ironic to me that I ended up as a legal ethicist. Legal ethics did not exist as a field when I was in law school and even if it did, I am certain that I would not have been interested. We were not required to take the proverbial ethics course and I can hardly even remember reading the required ethics code before becoming a lawyer. I ended up here through a circuitous route that began in the 1960s pursuing what we now call “social justice.”

It was the early 1970s. I was working in affirmative action and decided to either go to law school or graduate school in education and urban planning. The Rutgers Dean convinced me to choose law. I then met several of the students who were National Lawyers Guild activists. The school was dubbed the “People’s Electric Law School” because of its activist agenda and was the only law school in the country that had clinical education (besides Northeastern Coops).

I was hooked and then mentored by Arthur Kinoy, a founder of the Constitutional Litigation Clinic and New York’s Center for Constitutional Rights. We had a remarkable faculty who were excellent visionary lawyers and teachers. Kinoy was a historian-lawyer and he, Morton Stavis and William Kunstler had been the architects of civil rights litigation in the South in the early 1960s. Arthur Kinoy instilled in us the importance of being “people’s lawyers.” It was inspirational and quite a unique time.

Q. After law school, you went as far from New Jersey as you could get, Tacoma, Washington, to work for the Puyallup Indian Tribe. While going west is completely understandable, how did you end up representing the Tribe? What sort of law were you handling? Were you prepared, coming out of Rutgers, to represent the Puyallups? Was there something about that position that made you think, “criminal law sounds like fun”?

A. I was not sure what kind of law I wanted to practice. I still had an abiding interest in education law as well as constitutional litigation. I spent the summer of 1968 in San Francisco and knew that I wanted to move West. So when the National Lawyers Guild sponsored the first summer projects, I chose the Native American Summer Project.

It was 1973, the year of Wounded Knee, and the shooting of Native Americans on the rivers in Washington in a longstanding dispute about fishing rights. I chose the project in the Northwest. We had no idea how to do much other than research to help regain land, help lawyers on cases where Natives were arrested, and learn a great deal about particulars of injustice against Native Americans.

It was an eye popping summer, replete with stories about South Dakota Wounded Knee arrests. Many NLG lawyers, including the legendary William Kunstler, were involved in Wounded Knee. I returned to the Northwest the following year to co-lead the project and then decided to move there after law school to open the first Puyallup Tribe law office with my project co-leader. We had no idea what we were doing, but that did not stop us from our unwarranted exuberant confidence. We worked on fishing rights, economic development and I represented a number of tribal members in criminal cases.

Q. After a year, you started with the Seattle-King County Public Defender. As you know from Orleans, many public defenders offices are drowning in cases. Was it like that in 1976 when you started? What type of work were you doing? What about your first trial? Too confident? Scared to death? What did you take away from it? What was your favorite part of trying a case?

A. My roommate, Kate Pflaummer, who had moved to Seattle from New York, thought I was nuts to be in Tacoma, Washington and encouraged me to be a Seattle public defender. She was one of two women in felony division in the entire city of Seattle at that time. I was inspired by her work. I loved the stories, the David and Goliath aspects, the righteous representation of indigents in the face of terrible odds. Many NLG activists were criminal defense lawyers, working to keep people out of jails and prisons.

She, and many others, thought I had the “trial lawyer” in me and they knew I loved representing people in what most perceived to be a stacked deck system of justice. The State and the government were called the system of “just-us.” Yes, it was the 1970s!

The Seattle Public Defender Office had, and still has, the reputation of being one of the best public defender offices in the country. Caseloads were manageable. Resources were available. We had social workers, investigators and even though we felt overworked, our clients did not suffer.

After 2 years in the office I, and two colleagues, were assigned to work full time on our office’s first death penalty case. For nine months, I devoted all my attention to the case of Carey Webster, a Native American charged with the killing of a taxicab driver. We were lucky to have spared his life. It was an incendiary environment for a young Native American on trial for murder and it was frightening for me to have that responsibility. I did not want it, but my supervisor thought I was up to the task. I don’t recall sleeping much during that time or being able to have normal interaction with other people. Our team was in some ozone. We were in “team defense” before our time. I had to fly to upstate New York to examine the then-existing “expert” on blood spatter. It was hardly a science, as we now know, but we did not know that then. It was my job to debunk the expert conclusions and led us to excess alcohol consumption when our expert called a few weeks before trial to let me know that some of his calculations were incorrect.

At the Seattle PD, I started off representing clients in civil commitment cases because that was the job available. I learned a great deal about mental illness and cross examination of psychiatrists. My first trial was hilarious. My mentally ill client was a guy who set his couch on fire because he repeatedly fell asleep with cigarettes in his hand. I was outraged, of course, that the State would seek to commit him because he was “dangerous to others.” We had a jury trial; he testified. He tore the prosecutor to shreds on cross examination. We won and he then went home to set his chair on fire. He told them all to go to hell as they picked him up, once again, to commit him to an institution.

I rapidly moved from those cases to first degree robbery and homicide cases without much additional training. I was scared to death when my next trial was a defendant charged with robbery with a sawed-off shotgun while high on Dilaudid. Somehow I pulled it off.

The Seattle PD job remains perhaps the most cherished for me and many others. It was the bonding experience of our youth. There were only 12 felony lawyers in our office and only two women criminal defense lawyers in all of Seattle at the time. But the best reason is that we had 4-2-4 options, that is, 3 lawyers shared 2 jobs. We worked as a team where each of us worked 4 months, were off two months and then worked 4 months again. With good teammates, it worked seamlessly. You never actually got a full 2 months off because if you were in trial, you had to complete it and spend at least a week turning over cases to your teammate. But, it helped burnout and we travelled a lot. Two thirds salary at the time was $8000 a year. We lived well. REALLY. Some of my closest friends, who went on to become judges, academics, the U.S. Attorney, and leaders in firms, concur that our days in that office were inspirational. We got to practice at a high level, made a difference in many lives and had a lot of fun.

Q. In 1980, you started a firm practicing criminal defense in Seattle. Was the transition from public defense to private practice easy, hard, what you expected? Did private practice suit you? Were you busy from the start, or did you sit around waiting for the phone to ring? Did you like being your own boss or did it prove to be harder than you anticipated?

A. I wanted to be in private practice where I could choose criminal cases and also do civil rights work. Five of us from around the country had been meeting for some years to form a law collective– everyone was paid the same and we had a social justice mission. We got to do great work.

I worked with the New York Center for Constitutional Rights on women’s self-defense issues and undertook the defense of Sherry Allery, the first major “battered woman self defense” case in Washington State. We lost at trial because, among other issues, the Judge did not believe the battered woman’s expert and would not admit her testimony nor instruct properly on self defense. It was a sweet victory to have the conviction reversed by the Washington State Supreme Court. The case became a seminal one for the country.

We worked on civil rights cases including a case against Philippine government leaders for the assassination of two labor leaders in the cannery industry. It was the best of being a “people’s lawyer.” I look back now and realize the opportunities we had. Elizabeth Loftus, now the country’s leading expert in eyewitness identification, was a witness in my criminal cases in the early 1980s. Her first testimony was an offer of proof because the courts would not permit her testimony.

Q. You left Seattle in 1982 to work with the Center for Constitutional Rights, when (if I can remember that far back) former Attorney General Ramsey Clark was running the joint. What was that transition like? That was more civil rights than criminal defense. Was that where you wanted to go? Any really interesting work on your plate back then?

A. For personal and professional reasons, I had a hankering to come back to New York, particularly to work at the Center for Constitutional Rights. It had been my dream job since law school. Michael Ratner was the legal director and Morty Stavis and William Kunstler were its active founders. I was so fortunate to be hired and got to work not only on significant criminal cases but I learned the art of litigating important international human rights cases in what colleague Jules Lobel calls “Success without Victory.”

Ratner and the late Rhonda Copelon led the way in litigation challenging U.S. supported and sponsored violations of international human rights by death squads in El Salvador and Nicaragua. It was the Reagan era. We successfully used litigation to organize and publicize US actions. Even though the lawsuits were dismissed, the litigation helped spark political action to stop unlawful intervention.

As an outgrowth of Central America work at CCR and in the National Lawyers Guild, I became one of the lawyers for the year long Sanctuary trial in Arizona. The Government charged priests, nuns, and other religious and lay workers with transporting, harboring and otherwise assisting Salvadoran and Guatemalan refugees in the United States. Twelve defendants were charged with some 81 counts of criminal activity. We won about 70 counts but were devastated to lose the others.

I still consider that trial one of the highlights of my career. The clients were remarkable. A priest from Mexico travelled daily to Arizona to stand trial even though the government would have preferred that he stay home. People in town wore buttons that said “If They are Guilty, So Am I.” The judge had it out for us and our clients. We were not allowed to use the word “refugees.” The day before the trial started, the Judge took away our defense of intent. It was all a travesty that taught much of the religious community a lot about the operation of law in political cases.

Q. You turned back to private criminal defense in 1988, then went to Cardozo Law School as a clinical prawf in 1994. What made you decide to teach? Was that a scholar inside you yearning to get out? Did you tire of working in the trenches, or did your interests change? When you started, did it turn out to be what you thought it did? Was working with students your “thing”? What about the ancillary aspects of the legal academy? For a trial lawyer, the bureaucracy can be a bit hard to take. Any problem going from solo trench lawyer to professor?

A. I loved CCR but I needed to earn a living and our salaries there were extremely low. In 1988, Barry Scheck and Larry Vogelman, then directors of the Criminal Law Clinic at Cardozo Law School, offered me an adjunct position in the Clinic and a partnership in law practice. We set up an office in Soho where I worked 2/3 time and then worked the rest of the time at the Clinic. We directed Cardozo’s Intensive Trial Advocacy Program.

It was interesting, engaging and fun. I liked the students, my colleagues and the opportunities that law school teaching offered. I never intended to teach full time but serendipity and unpredictability seems to define my career. Someone once told me “Make your own steps” and I suppose that I followed that advice.

I thoroughly enjoyed clinic teaching. In addition to misdemeanor supervision, I had students work with me on cases including the first sexual harassment case at the United Nations. We represented Catherine Claxton, a brave woman who came forward to complain. Alan Dershowitz represented the high level UN harasser. The students who worked on that case and sat through the 4 week trial — all done in “secret” at the UN — have subsequently talked about the impact of that experience.

We handled a wide range of criminal cases through the Clinic. In my private practice, I worked with artists and represented Karen Finley, an avant garde artist who received federal funding and who was attacked by right wingers in the Congress who sought to defund the NEA due to support of her work. This was known as the “NEA wars” of the late 1980s. The right wing wanted to stop funding the artists whose work they abhorred and we undertook that battle.

Q. Your focus at Cardozo was on legal ethics, and you became the Executive Director of the Jacob Burns Ethics Center. How did you come to focus your interest on ethics?  You’ve done remarkable work in the area of criminal law ethics, from Brady disclosure to plea bargaining to indigent defense. How did you end up there? Was your interest in ethics there when you were still in the trenches trying cases, or did it come later? Do you have a philosophy that guides your perspective in ethics? Is there one side, prosecution or defense, that’s more or less ethical? Are there more pitfalls for one side?

A. Personal reasons had much to do with why I ended up a fulltime academic. I became a parent in 1990 and my husband died unexpectedly in 1994. I was not sure I would return to work for many months (and did not), and I certainly could not imagine the stressors of trial work on a long term basis.

In 1997, I tried my last major case before Judge Reena Raggi. As you may know, she runs an efficient courtroom and the trial schedule was punishing. I got 3 hours sleep for days, hardly saw my son, and despite a nice victory, decided that such a life was not sustainable. Luckily, Cardozo benefactor Jacob Burns gave Cardozo an endowment so that we would teach ethics with the simulation method that we used to teach our Intensive Trial Advocacy Program. Barry Scheck and I set up the Jacob Burns Center for Ethics in the Practice of Law.

I knew nothing about legal ethics. Barry Scheck and I co-taught the course for a semester and then he went off to Los Angeles for the famed OJ Simpson case. I slowly, or maybe quickly, learned the field. Barry returned and we held some Ethics Center programs and developed video simulations to teach ethics. It was fun, it was interesting.

Barry could not undertake the remarkable work of the Innocence Project while simultaneously directing the Ethics Center, so it was mine as of the mid 1990s.  And so it was that I changed course a bit, while maintaining an abiding interest in criminal justice. Barry and I still collaborate and I often provide advice to the Innocence Project and work closely with them on prosecutorial and defense attorney ethics.

I focused the Ethics Center on Access to Justice issues. We held a yearly talk. Michael Tigar delivered, “How Market Forces Distort the Search for Justice.” Along with my Fordham colleague, Bruce Green, we concentrated on Brady issues and held many conferences including one on disclosure issues. We filed amicus briefs.  I became engaged in the various bar associations and national organizations that focus on legal ethics. Engaging in the Criminal Justice Section of the ABA was significant and we were able to pass resolutions on numerous issues including Brady rules, plea waivers, and prosecutorial misconduct versus error.

I like legal ethics work. It raises interesting and difficult questions. How should the profession operate? What are necessary and appropriate rules? How is criminal justice ethics different from that of civil justice? Negotiation vs. Litigation. What can we do to move the ball forward? Maybe your eyes roll over and say REALLY? I guess this does make me an academic.

I dislike the distinction between lawyers and academics. I aspire to be both and would hope that more academics engage in the world of lawyering. In particular, I would expect that academics write to be useful to the practice of law. I think we need to help overworked lawyers step back, examine the practice, and figure out ways to improve the justice system. Ethics rules should play more of a role in the way judges, prosecutors and defenders view their respective roles.

My early interest could be traced to a program at NYU in the late 1980s when Steve Gillers invited me to an ethics program on criminal defense and victims’ rights. My perspective was not particularly well received by the prosecutor and former judge on the panel. I did not know why! I actually wrote an article debunking the popular view of the role of victims in the criminal justice system. My first scholarly piece. It still holds up.

I did not know that I would like scholarly writing. I do, to some extent, although the hundreds of footnotes to make a basic point can be frustrating, particularly in this era of short attention span. Who reads these articles? If they are useful, hopefully lawyers and judges can use the hundreds of footnotes and ideas in briefs, motions and opinions. Maybe that is just an academic pipe dream.

Q. Your work in criminal law ethics has made you one of the foremost legal ethicists in the area, which explains how you ended up as Bunton’s expert witness in Orleans. There seems to be little question that, as you opined, that risked becoming “nothing more than a plea mill.” So is this an ethics question or a financial question? At what point does a public defender have to say “no,” he will no longer be complicit in less than adequate representation? Is Derwyn Bunton right to refuse cases? Should every overworked, underfunded, PD just say no?

A. Louisiana–Lawyers at the NOLA PD called and asked if I would testify and I did. The situation there, and throughout the State is shocking. It is simply not possible for lawyers to perform the basic tasks of representation: interviewing and counseling their clients, conducting basic investigation and making appropriate motions. It is a basic ethical and constitutional precept that lawyers must provide competent counsel.  They are unable to do that.

I testified that the situation is little more than a plea mill. Lawyers are not performing, and cannot perform the basic tasks. It is not ethical to represent clients in such fashion. Many systems around the country are terribly underfunded and place lawyers in compromised positions. Lawyers constantly have to decide whether they should go to a supervisor, say that they cannot handle any more cases, and the supervisor then has to decide upon action. Perhaps lawyers do not do so because defenders have become so accustomed to triage — to picking and choosing which cases are worthy of defense rather than a quick plea — that they are loath to even recognize where they should say “NO.”

The triage issue is endemic to the public defense system nationally and the subject of constant and ongoing discussion. But Louisiana has gotten to the point of no return. The system of funding is unconscionable.  You cannot fund a criminal justice system primarily through traffic tickets or other tickets paid by the public. There must be state and other government funding.

Derywn Bunton, by all accounts, is a thoughtful and courageous leader in the New Orleans defense system. He carefully considered all options and took seriously his ethical and constitutional obligations. He exhausted all options. I believe that, as difficult as it is, he had an ethical obligation to refuse to accept further cases. Several ABA Opinions set forth his course of action.

Q. You ended up taking a group of students to Orleans Parish over a school break to try to help, fill in some gaps and teach them what life in the real trenches was like. That raises some questions: Does it help or hurt to relieve some of the pressure building toward an indigent defense disaster? Does the system need to crash and burn before government takes its duty under Gideon seriously? And are law students ready to provide meaningful help to the unrepresented indigent?  Should the poor be used for practice? Don’t they deserve competent representation by admitted lawyers? What made this trek a good idea?

A. I recently organized a trip for Hofstra students to work with the MacArthur project in New Orleans. Cardozo students will soon engage in such work. The Hofstra students worked in Lafayette, Louisiana. They spent a week learning the system, documenting conditions and working with 12 defendants to prepare habeas corpus cases in order to secure their release because they have been held without charge and without legal representation.

Needless to say, their work is somewhat of a drop in the proverbial bucket. There are 70 young men held in Lafayette and even if they could write motions for 12 people and secure their release, this represents a small portion of Louisiana defendants.

So why such a project? Many reasons. First, the students were adequately supervised and actually will help the 12 young men. The work they did was competent and meaningful for those people in jail. Second, the students’ exposure to the remarkable unfairness of the system should reverberate as they write and talk about their experiences. It was shocking for all of them to learn that in Louisiana people can be held without charge for 45 days on a misdemeanor and 60 days on a felony. Without charge!

This issue alone has not received sufficient attention. Hopefully, exposure and increased publicity that results from this and similar projects will snowball and have an effect. Change does not come overnight and it takes many efforts to achieve public awareness that leads to changes. No doubt, the Louisiana public defense system has crashed, but it will take greater public pressure to make a measure of Gideon a reality. Projects such as student projects can help move that forward.

Q. It’s just been announced that you’ve been named the Howard Lichtenstein Distinguished Professor of Legal Ethics and Director of the Monroe H. Freedman Institute for the Study of Legal Ethics at Hofstra Law School. Aside from that being a mouthful, what is the plan for Monrovia? Do you plan to continue your focus on ethics in criminal law? Will you continue your work as a legal ethics expert as well as scholar? And what will you do next?

A. I am honored and humbled to have been selected as the Director of the Monroe Freedman Institute for Legal Ethics. Monroe was a friend, mentor and a legal ethics hero. And, we share a birthday and he was the first to contact me at 5 a.m. every year to wish me one first!

He was an advisor to untold numbers of criminal defense lawyers around the country throughout his career. He gave of himself to anyone involved in access to justice. His groundbreaking law review article, The Three Hardest Questions, incurred the wrath of Nixon appointee Chief Justice Warren Burger, who sought Freedman’s disbarment in retaliation for his position that, when faced with the dilemma of what to do when the lawyer knows that the client intends to commit perjury, he or she should present that client’s testimony as any other witness.

I hope to enhance Monroe’ s legacy. I am excited that there are sufficient funds to sponsor programs, conference, fellowships and other activities to undertake significant and cutting edge issues in the profession. I intend to work across a broad range of areas but to continue to focus on criminal justice ethics. I am thrilled to begin with a program on September 13 when Dean Strang, the lawyer for Steven Avery in the noted series, Making a Murderer, will inaugurate the Institute with a talk about criminal justice ethics.

I will continue the focus on prosecutorial and defense attorney accountability, but I also want to examine the role of judges in the criminal justice system. There is so much to do. It is an exciting time, as difficult as it may be. I will continue to consult with scores of lawyers and hopefully have time to write articles and essays that are useful as we continue to try to push that rock uphill.

Cross: Alex Bunin, Getting Public Defense Right

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.