Tag Archives: Cross

Cross: Marcy Wheeler, The NSA’s Worst Nightmare

Jan. 20, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Marcy Wheeler, whose blog, Empty Wheel, has done more to reveal the NSA’s secret surveillance of Americans than anyone other than Edward Snowden.

Q. Having recently questioned whether a physics education lends itself to thinking like a lawyer, you went in the opposite direction, getting your Ph.D. (that’s right, it’s Dr. Wheeler to you) in comparative literature from Michigan. To make it even worse, your emphasis was on 19th Century French and 19th- and 20th-Century Czech and Argentine “Feuilletons.” Did you ever think that you would end up writing about law, civil liberties and NSA surveillance?  Did your education contribute to your understanding?  Perhaps there are similarities between “Feuilletons,” what Newsweek described as a “subversive writing form” used under “authoritative regimes,” and the thousands of secret government documents you’ve read since?

A. I went to grad school because I had a general question I wanted to answer that ended up becoming the feuilleton research, not necessarily because I wanted to be a literature professor.

But my research absolutely does relate to blogging. My topic was about how a form that arose amid momentous media and nation-state change (the rise of industrialized newspapers and the nation-states that went with them) served as a place for certain kinds of speech, particularly in times of heightened repression. Stylistically, the feuilleton has usually been the conversational counterpart both to “high” literature and to more formalized political speech. And not incidentally, I wrote some about surveillance, interrogation, and torture because I was writing about dissidents in authoritarian countries. It turns out a PhD in CompLit can be perfect training for blogging. Heh.

Q. After your brief stint teaching Great Books and Communications in college, you decided that the ivory tower wasn’t right for you. Why not? That was from 2000 to 2002, well before the current wave of political correctness and “special” snowflake students. One would suspect there aren’t a great many careers that call for your rather specialized educational background, so how much must you have hated academia to blow it off after having gotten your Ph.D.?

A. Don’t underestimate my solid postmodern critical theory credentials! I even took a seminar with Slavoj Zizek, who invited himself to be on my dissertation committee (I declined the invitation).

One of the most fulfilling weeks I had before grad school I went from working on a writing project with a VP from Moodys to working on a writing project with an oil refinery operator in Superior, WI who had, by his own admission, barely made it through high school. In spite of the big disparity in background and training, they were struggling with similar issues but also, ultimately, managed to overcome them. Stuff like that made me a strong believer that the skills normally associated with a humanities education are necessary and undervalued in the “real world.” Increasingly, those humanities skills have been relegated to the academy, pre-law, or fiction writing, with B School becoming the place where people learn how to apply humanities skills to the real world. That’s a problem for the humanities disciplines (and definitely partly of their own doing), but also for a society that undervalues — or limits the practice of to law firms and board rooms — the critical thinking and writing skills trained in the humanities.

Which is a roundabout way of explaining why that CompLit PhD was a tremendous opportunity, and but I didn’t despair when I decided staying in academics wasn’t in the cards. Had it been possible to get a Media Studies job for print culture when I was on the job market, I might have stayed, but ironically, at the time those jobs all required a focus on the Internet. As it was, I was facing teaching in an English department teaching both Goethe’s and post-colonial world literature while my colleagues got to teach nothing but Dickens, which wasn’t going to be a formula for success. So I left. I occasionally run into my former profs who say they’d love to be able to engage with as many people as I’ve managed to regularly, so I guess they don’t think I made a horrible decision.

Q. After leaving your teaching position, you took off for the wilds of Asia. Was that in the plans, or just something to do between teaching and wherever you would end up? You worked as a consultant in automotive, using skills that you developed between college at Amherst and grad school. Is this how you honed the rather arcane skillset of deciphering government docs? As your later efforts proved, you were not only good at doing so, but really quite remarkable. Was there some trick to it, or were you just totally brilliant when it came to cutting through government gibberish?

A. I had grand plans when I left academics but then got diagnosed with cancer so needed something to do until I got through that. I ended up falling back into the same kind of document consulting I had done before grad school, at first very simple things, but then increasingly more interesting. Before grad school I worked for a consulting company that worked in the oil, tech, pharma, rail industries — pretty much any industry that had to do enormous, usually regulatory or quality, documents. Afterwards I worked for a Detroit auto company, consulting from home but traveling to Asia a number of times.

I presume a lot of this paper bureaucracy has moved online now, but at that time, these giant bureaucracies were all driven by paper documents. Usually, when working on these projects, you’d get one or two subject matter experts to work with and reams of documents from which to understand the underlying processes. It was a great way to learn what these companies did. And it was also not dissimilar from the kind of archival work I did in history or literature work — or, obviously, some of the weedy analysis I do on torture and surveillance bureaucracies. Some of those big corporate training or documentation projects are actually really useful, if they’re done properly. Sometimes I questioned the value of the underlying goal — was helping to convince China’s rising middle class to buy more cars really how I wanted to spend my life? But on the more complex projects, it was fascinating work.

Q. When you returned to the states, you got “sucked” into covering the Valerie Plame leak case, outed by Scooter Libby, and it ultimately resulted in your book, Anatomy of Deceit. Aside from the fact that it’s hard to imagine anyone “sucking” you into anything you don’t want to be “sucked” into, how did that happen? You didn’t have a background in law, and at that point, you had yet to establish yourself as a journalist, so why you? Your reports of Scooter Libby’s trial were among the “go to” sources that many mainstream journalists relied upon.  Did you feel up to the task? Would it have been better, or at least, easier, if you had been a lawyer? Or do you see a legal education as the sort of background that hinders the vision you had?

A. The Plame case was as much about the press getting used as it was about the Vice President’s office, which made it hard for many journalists to cover. As for the law, there were several lawyer-bloggers who were also covering the case, notably Christy Hardin Smith and Jeralynn Merritt, and they covered the procedural areas, which I’m sure prevented me from embarrassing myself.

As for why me? In part it was that I had the flexibility to cover the case and ultimately the trial. It’s also true that my academic work on newspapers and narrative meant I could add something to the kind of politically driven coverage associated with the Libby case (or the Iraq War). I was used to reading large amounts of documents with a focus on the details, so I was happy to read through the documents on the case, and in any case would never have been able to rely, like the DC journos could, on what lawyers representing one or another side of that case told me in confidence. Finally, it helped that I was blogging, rather than reporting for a newspaper, as I wasn’t bound by 800 word stories focusing on one main news takeaway; I could write long posts laying out several developments at once.

Reggie Walton, who presided over the trial, has at least twice said publicly that the bloggers’ coverage (including FireDogLake, Jeralyn’s coverage, and some other bloggers unrelated to our coverage) was “more thorough” than the traditional press, and I think that’s both because we weren’t bound by the typical news reporting genres, but also because we brought different kinds of approaches to the case.

Q. ln 2007, you started writing at Jane Hamsher’s FireDogLake, which was ground zero for progressive activism in its day. Why FireDogLake? Did that go back to your coverage of Valerie Plame? How did it mesh with your personal politics? While FireDogLake did some very heavy lifting with regard to civil rights and freedom, it was certainly deep into politics (and political shenanigans) as well. Were you there for the legal issues, the political issues or both?

A. Jane really made the Libby trial coverage happen, we covered it together. So when she expanded her site, it made sense for me to go over there with my own site, which is where emptywheel started, and while I covered the auto bailout and ObamaCare, it mostly was what it still is: weedy analysis of civil liberties and national security stuff.

Q. There was a very curious period, about two months, where you were a senior policy analyst for Pierre Omidyar’s The Intercept, and then you weren’t. That was before The Intercept officially launched. What happened?  What drew you into working for Omidyar? What made you decide to leave? There were rumors that it had to do with Omidyar’s donations to Ukraine opposition groups, but you denied that was the case. What was it about The Intercept that made you decide it wasn’t right for you? In retrospect, did you make the right choice?

A. It was actually just as the Intercept launched. I joined — it was only a part time role — because I thought it’d be the rare place that would fully support the kind of non-traditional journalism I do. I hoped ultimately I’d be able to get paid both for the really weedy analysis that won’t ever draw in large numbers of readers and for pieces that made that analysis more accessible. I also wanted to work at a place where I’d have lawyers who could bring FOIA lawsuits. But it was just a part time gig and they weren’t willing to pay for the weedy stuff. I left so they wouldn’t get to freeload on the weedy analysis.

Q. Torture. You were the person who figured out that the United States waterboarded Khalid Sheikh Mohammed 183 times in a single month after 9/11, based upon the Bush torture memos. How did you see what no else saw? Presumably, your skills at seeing through bureaucratic obfuscation came in handy, but so did your persistence in reading deeper than anyone else. After you broke the news, what happened? Were you in fear that the government wouldn’t invite you to its holiday parties? Were there any ramifications from being the person who exposed one of the most disgraceful episodes in our nation’s history?

A. One really nice thing about writing a blog is that you don’t have to write about one and only one story for each news item. When the traditional press wrote about those documents, the one and only one part of the memos that interested them was the horserace — how would the release play politically? — and not for the process that went into making those documents or the role those documents played in a larger process of sustaining the legal approval for torture over 6 years. I spent several days just unpacking what was in memos, doing working threads and some posts just observing what the memos disclosed.

The reference to the 183 waterboards came in a passage where Steven Bradbury tried to make his consideration of waterboarding look balanced — weighing the purported necessity to do it against what CIA’s IG had found to be excessive. In this really lawyerly voice he wrote, well, yes, KSM was waterboarded 183 times in a month but on the other hand…, as if there’s some way to make 183 waterboards in a month look like it served any real purpose. A reader and I both found that reference and I kept writing about it until eventually Huffington Post and then NYT picked it up from there.

A year later, I happened to be at DOJ when one of the press people was sending out another set of FOIAed torture documents. I said, What are you telling them it’s about? What is really there? She laughed, and admitted that I would find much more interesting things in the release than she was letting on with other journalists. Government public affairs people unsurprisingly try to limit what reporters will see in released documents by tipping them off to story-worthy but maybe not the most damning parts. The government has been tremendously successful in working the press this way in the wake of the Snowden disclosures, basically hiding stuff in plain sight while — I’m quite certain — inoculating themselves against future claims that Congress or litigants weren’t fully informed.

Q. You have done some remarkable work at your current blog, Empty Wheel, particularly your work on revealing what was happening with NSA’s surveillance. Aside from Edward Snowden, you’ve likely read more classified government reports than anyone else, maybe even within the government. First, how could you tolerate so much crap?  Second, the sheer volume of papers must have been overwhelming. What made you persist? Of all the things you’ve seen, what stands out as the most outrageous thing the government did and concealed from the public?

A. I keep promising to plant a grove of trees and name it after Snowden for all the paper I’ve gone through reading both documents he released and those the government has released in response.

As I guess I’ve already made clear, I still have that academic instinct to wade through archives over years. But I’m also very much cognizant of this — the publicly released documents, far more than what comes directly from the Snowden archive — that no one else is reading. And there are public claims that the government floated, and many people still believe, which are just the result of the government making bogus claims to the FISA Court. One example is the government’s claim the PATRIOT dragnet programs were just mistakenly out of control until 2009, when all the evidence makes it clear they were just knowingly blowing off the FISC’s more stringent limits on PATRIOT authority activities over EO 12333 programs.

On what is most outrageous? There are things the government is still hiding — we still only know part of what caused the hospital crisis in 2004, for example, and FBI’s response to getting scolded on surveillance authorities in the 00s was to get more secretive, even from Congress, even as it was getting more power. Other than that it’s the confirmation of things we worried might be true — that the torture was worse than what CIA’s IG found, that the government was using terror threats they had reason to believe weren’t real to get torture and dragnet surveillance reauthorized — that most pisses me off.

Q. It was one thing to be progressive when George W. Bush ran the joint, but after Barack Obama was elected President, you demonstrated the principled approach of scrutinizing his initiatives as well.  You were critical of the auto bailout and particularly Obamacare. What made you put principle over politics?  Your scrutiny must have cost you some friends in liberal circles, and you suffered some criticism for not sticking with the party line. Did that change your view of Democratic party politics, liberal and progressive politics? Did you become disenchanted with the concept, or did your views evolve after seeing the damage politicians had done?

A. Oh, I supported the auto bailout—I’m a Michigander! I would have done some things differently, particularly to ensure the lasting value of the investment put in. But I supported it and think the auto bailout worked better than the serial bank bailouts have.

On ObamaCare, I support the idea of making health care more accessible and cost-efficient. But I was critical of a number of things — like overall affordability and the Cadillac tax — that boosters wanted to gloss over. And here we are, six years later, finally admitting the Cadillac tax needs to be fixed! Pointing that out while the bill was still being debated absolutely got me disinvited from some swank party functions, but it probably matters less for me since I don’t live in DC. And I don’t think the demand for party loyalty in the face of bad policy is any different on the Republican side than it is on the Democratic, or even within a movement. I pissed off civil liberties lobbyists at least as much during USA Freedom Act as I did Democrats during ObamaCare, especially since it was clear, on USAF, I had done the analysis some of the lobbyists hadn’t.

I haven’t so much become disenchanted as focused more on working, where possible, in transpartisan coalitions, such as the left-right coalition that works on surveillance issues together. Partisan organizations are a very crucial part of influencing policy in DC, but you also need to be working with people who are willing to upset the DC consensus when necessary.

Q. How does your blog, Empty Wheel, fund itself? And how do you fund yourself? You don’t run ads, which would be unseemly at best, and you have no open and notorious sponsors, but blogs don’t pay for themselves. You have a donate button, but does that bring in sufficient support to keep Empty Wheel alive?  And certainly you need to eat, not to mention enjoy the occasional moment when you’re not trying to figure out what “connection chaining” means in the USA Freedom Act. How does Dr. Wheeler manage it? And how long can Dr. Wheeler keep it up? After all, without Marcy Wheeler and Empty Wheel, who is going to read through all those pages of bureaucratic gibberish to keep us informed?

A. The big secret to my funding model is living in an inexpensive city, Grand Rapids, MI, with a gainfully employed spouse and no kids. It’s a lot easier to maintain this kind of independence if you’re not living in DC or trying to save for kids’ college tuition. I pay my bills by writing for others and getting donations, sometimes generous, from readers, though I keep meaning to raise a lot more money so I can start bringing FOIA lawsuits. So if anyone wants to donate …

Seriously, though, I fill a gap that larger organizations really need to address (and fund). Since 9/11, FOIA lawsuits and leaks have been as important to learning what the government is really doing as source-based journalism. And aside from VICE’s Jason Leopold and NYT’s Charlie Savage, most of the FOIA suits are being done by NGOs — ACLU, EFF, Judicial Watch, and some others. But those NGOs aren’t necessarily unpacking those documents; with one or two exceptions, not even the lawyers litigating those programs are. Plus, on surveillance (torture is different, and the Gitmo lawyers have been great on these issues, but of course they’re all bound by protection orders), a lot of these disclosures aren’t going to be usable unless it gets highlighted to defense attorneys, because only their clients will have standing to do anything about these programs. EFF and ACLU are, to some extent, bridging out to defense attorneys. But still, we’re getting some transparency but thus far, and it largely means formerly secret things are now being hidden in plain sight.

Cross: Noel Erinjeri, The Guy In Front Of The Tank

Jan. 13, 2016 (Mimesis Law) — Ed. Note:  Scott Greenfield crosses Michigan criminal defense lawyer Noel Erinjeri, who traveled from Missouri public defender to Michigan solo, and now practices with Neil Rockind.

Q. With Merit Scholarship finalist on your application, you went to the University of Michigan, majored in physics and had your eye on practicing medicine. What went so horribly wrong? Did there come a point in time when you realized that being a physician wasn’t right for you? Why? There seems to be a surprising number of lawyers who studied physics. Is there a connection?

A. I was basically pre-med by default, in that I didn’t really have a strong idea of what I wanted to do, and medicine seemed like a good option. College was also a big adjustment for me in that it was the first time I ran into a situation where I couldn’t just “get” something, no matter how hard I was studying.

I realized that being a doctor wasn’t for me when I realized that I didn’t actually like biology or chemistry (especially chemistry), and that 8-10 more years of studying exclusively bio and chem wasn’t for me. As for physics majors becoming lawyers, I don’t know if there’s any kind of direct connection. There definitely wasn’t for me, it was just the way life worked out.

Q. Looking back from the vantage point of an experienced trial lawyer, how did your college education frame who you are today? In particular, physics is a very rigorous course of study, and some (like me) might say that the demands are far tougher than the softer field of humanities. Should lawyers study hard science in order to train their minds for a future of trying cases? Did physics make you a better lawyer, or have no impact on your perspective?  On the other hand, do you think there’s a gap in your breadth of education because of your focus on science rather than, say, history or philosophy? Which way would you recommend future lawyers to go?

A. My physics knowledge at this point has probably regressed to that of a college sophomore. But the intangibles remain. Specifically, studying physics taught me how to stare at a problem set for as long as it took to solve the problem. And if I didn’t know how to solve the problem, how to figure it out. There have been quite a few times, the night before trial, where I’ve been staring at a case file deep into the night, and all of a sudden, there’s that light bulb moment where I think of something important. The parallels between that and suddenly realizing at 2 a.m. how to solve a weird line integral are uncanny.

Physics was good preparation for law school, not because physics has anything to do with law, but because it was a step down in terms of difficulty. After quantum mechanics and general relativity, the elements of negligence and the Rule Against Perpetuities just aren’t that hard. Reading 500 pages a week of caselaw is practically a vacation compared with a problem set a week in upper-level physics courses.

As for future lawyers, I would say study what you’re interested in, whether it’s science or the fuzzy subjects. The content of your undergrad degree probably won’t matter much, either in law school or in practice. What’s important is that you “learn how to learn,” how to think your way to a solution without consulting the answer book.

Q. Then you decided that for a physician, you would make a good lawyer. Despite the fact that you had a strong educational background and were clearly a very smart guy, you did the one thing that would dumbfound most law students today: you went to Cooley. Why? Was it the scholarship? Sure, it was close to home, but wouldn’t Harvard be worth the trip? Did you have any concerns about its rep? Did you know about its rep? Did you care?

A. Heh. Harvard wasn’t really an option in any case. Part of it was the scholarship (full ride, based on my LSAT score), was because I had a job in the Lansing area working for Kaplan as an MCAT and LSAT teacher. Between the scholarship and the scheduling flexibility Cooley offered, I could work all I wanted for Kaplan and still go to school and graduate in three years. I used to joke that I was the only law student in America who made money while in law school. Also, I managed to graduate debt-free, and that becomes more significant with each passing year.

As for Cooley’s reputation, it was probably somewhat better then than it is now. Everyone knew they had a liberal admissions policy, but I started before the size of their entering classes went from “very large” to “colossally enormous.” Their attitude seemed to be that they would give almost anyone a shot, and if you couldn’t hack it, out you go. “Large entrance, small exit” was the way we put it. I was completely willing to take them up on it.

Q. So Thomas M. Cooley Law School. It doesn’t have the best reputation around, and given its 2015 bar exam pass rate of about 38%, it would seem the rep is well deserved. What gives? What was your experience at Cooley? How does a guy who attended Michigan view his legal education at a law school so far down the list that it doesn’t even make the Third Tier Toilet?

A. I actually had a very good experience there. The quality of instruction was very high, in my opinion; and law school is a little bit different in that Palsgraf and International Shoe read the same whether you’re in Lansing or Cambridge. It also helped that criminal law is not an area where pedigree is very important. That said, I did realize pretty early on that working on Wall Street or becoming a Supreme Court clerk was probably out even if I graduated at the top of my class.

There were definitely “two Cooleys.” The part-time students (mostly in their 30s and 40s) pursuing second careers tended to be serious and dedicated, and did an amazing job of balancing school and adult responsibilities. There were also a lot of twentysomethings for whom law school was more in the realm of post-undergrad babysitting. But like anything else, you got out what you put in, no matter how old you were. The school would teach you how to “think like a lawyer.” The rest of it was up to us.

For the record, the bar pass rate is a more recent phenomenon. For my bar class, the pass rate for (first-time test takers) was around 80%, which was competitive with other schools in the state not named the University of Michigan. Re-applicants were a different story.

Q. From law school, you went to the Missouri State Public Defenders Office. What kind of cases were you handling? You did a ton of bench trials, and a few jury trials. Did you experience the normal “first trial debacle” like so many other lawyers? What did you learn from it? Was it what you expected? Did you knock it out of the park from day one, or did you learn a little humility in the trenches?

A. I handled, quite literally, every kind of case that didn’t involve a dead body in Callaway County, Missouri. My first trial came about a year and a half after I started the job. (The prosecutors had a habit of not taking BS cases to trial, and of making pretty reasonable offers for the most part, the bastards.) It wasn’t a debacle, but it was a tough case and the prosecutor ate my lunch. In any case, I lost, and the jury wasn’t out very long either.

The biggest lesson from trying a case for the first time is the amount of time and effort it takes in the weeks and months leading up to trial to do it right. Instructions, opening and closing, voir dire questions, direct and cross, anticipating possible objections, coming up with backup plans and backups to the backups; and in the end something unexpected will happen and you’ll have to improvise. But if you haven’t done the work beforehand, you and your client are sunk. My wife learned quickly that the phrase “I have a trial next week” meant that we wouldn’t be seeing much of each other for a while. That was the main lesson, that it was so all-absorbing.

I was incredibly lucky in that I got to work with an amazing group of co-workers, all of whom loved the job and took it seriously. Especially my boss, Justin Carver, who took an inordinate amount of time in mentoring me and answering all my stupid questions.

Q. You spent five years at the Mizzou PD. What did you realize coming out that you didn’t realize going in? Was it your goal coming out of law school to represent the indigent, or was that just a job opportunity, a place to hone your trial chops? Was representing the poor what you expected? Did you enjoy the respect and confidence of your clients, or were you called “public pretender” as they wished for a “real lawyer”?

A. I actually wanted to be a prosecutor coming out of law school. Unfortunately, I graduated in 2008, when Michigan basically became a 3rd world economy. Prosecutor’s offices were getting literally hundreds of applications, and they were turning away people with five years of prosecutor experience for part time positions. I ended up with MSPD because it was really important to me to work in criminal law, regardless of which side, and they were the first to offer me a job.

The clients were a mixed bag. Most of them were ordinary people who had done something dumb. Some of them were just chuckleheads, and unpleasant ones to boot. The “public pretender” thing was there, that prejudice is almost inevitable when people aren’t choosing (and paying for) their own counsel. But the cool thing was that even with the most cynical, suspicious, clients; I never heard any BS about “public pretenders” after a contested hearing. There was something about the first time I stood up and said “Objection!” that actually opened their eyes to the fact that I was there to fight for them, not sell them out.

But what was worse than suspicion was indifference. From time to time, I’d be filling out a new PD application with a client I’d represented on a previous case. One of the questions on the applications was “Have you ever had a lawyer before?” Many former clients would check “No.” I’d give them a look, and they’d say, “Oh yeah, you, but I thought you meant a real lawyer.”

Q. When you left the public defender’s office to return to your Michigan roots, it wasn’t so much a matter of choice but because you followed your wife, whose job brought her back to Michigan. Any regrets? While five years as a PD isn’t exactly a life time, it’s long enough to establish some serious roots. Having put in the time in the Missouri trenches, what was it like picking up and moving on to your legal career?

A. No regrets. Neither my wife nor I wanted to settle long-term in Missouri, and for lawyers in government service, five years is probably about the point where either you commit to making a career out of it or start looking for greener pastures. I miss the hell out of my friends and colleagues in Missouri, but it was the right decision.

Actually, moving to Michigan wasn’t as much of a problem as opening my own practice. I’d kept my Michigan license current since 2008, so there weren’t any worries about passing the bar or waiving in. What I thought would be really complicated, setting up an LLC, only took $100 and a two page application. What worried me was that I had talked to several Michigan lawyers in the months before the move, and all of them said that it would be almost impossible to make a living doing criminal law alone. This bothered me, because I have about as much interest in civil law as I do in watching grass grow. I was really lucky that my wife had a good job and that I had some room to try and get off the ground. In my head I gave myself three years. If I wasn’t making a decent living by then, or at least on the way to it, I was gonna have to do something radical. Forunately, it never got to that point.

Q. When you returned to Michigan, you hung up your own shingle. I have to add, the pic on your website is my all-time favorite for a criminal defense lawyer.

noel
What did you anticipate when you struck out on your own? Was this what you wanted to do, or did circumstances not offer you a choice? Were you ready to open up shop? Did your time in the PDs office prepare you to run a law office? Did you have a clue where your clients were coming from? After all, your reputation was established in Missouri, and you were basically a Michigan virgin. How hard was it to open your doors? How scared were you that the phone would never ring?

A. My guess was that I would go from relief that I no longer had a giant caseload, to nostalgia, to stir-crazy in about six months. I was wrong, it took about three months. Five years of being a PD had turned me into an adrenalin junkie, and I’d lost my fix. If it had been up to me, I would have liked to been an associate in a criminal defense firm, as opposed to out on my own. Unfortunately, most criminal defense firms are pretty small, and probably wouldn’t hire some unknown quantity from Missouri anyway. So it had to be the shingle.

There was absolutely nothing about being a PD that prepared me for running my own business. I was lucky enough to find a “workspace” that would cover everything I needed (desk, mail, fax, copier, internet, conference room) for the absurdly low price of $178.00 a month. (The next cheapest place I had found was about $650 a month.) It was also good for my morale. On days the phone wasn’t ringing, at least I was still at “the office” where things were being done. An illusion, but a comforting one.

Q. Your solo practice lasted ten months. What did you learn during that time? Where did your clients come from? What did it feel like when you sat down at your desk and stared at the silent phone? Too many people think that just because you’re a lawyer, people start throwing oodles of money at you. Did anybody throw oodles of money at Noel Erinjeri?

A. I had to learn all the procedural stuff all over again, along with the differences in plea-bargaining that come with a determinate sentencing scheme. Also, big-city practice was different from a county where there were three prosecutors and two public defenders. Things I used to settle in a 30-second phone call now took two weeks. I thought it would take at least a year to get the hang of it. I was pleasantly surprised that I feel like I was back up to Missouri standards in about six months. I had one really big win in this period (sentencing, not trial) that was as good a piece of work as anything I had managed in Missouri.

Most of my first couple months was about getting my name on the indigent roster of every court that would have me. (Metro Detroit doesn’t have a public defender office. It has a court-appointed attorney system, a really crucial difference.) Money wise, the big adjustment was not having a steady paycheck. It was feast or famine. It really gave me some perspective on the pressures that private attorneys who take on indigent defense face: I was making more money on retained traffic tickets than I was on appointed felonies.

The silent phone was definitely rough. I got some retained work, referrals from a more experienced attorney who was helping me out, and was trying to get my name out there. Criminal law isn’t really a field that lends itself to generating business by “networking,” as you can’t really encourage people to put themselves in a situation where they require your professional services. Of course, maybe I just wasn’t doing it right.

As to “oodles” of money being thrown at me, if you totaled up all the money I made on my own, it might make half an oodle. I turned a profit, in that I made more money than I took in, but it wasn’t enough to live on. It wouldn’t have been possible if my wife wasn’t working. I was about a week away from signing up to take some courses on family law and bankruptcy law to expand my practice areas (tough for me, because I’m a criminal defense attorney) when another opportunity came along.

Q. After ten months solo, you were taken on as an associate by Neil Rockind, who obviously saw your talent and recognized that you would make a strong addition to his firm. What type of work did you do? Was it easier to hook up with an established, well-regarded lawyer than do it on your own? Now that you’ve found a new home in Michigan, are you happy with your decision to go to law school?  Are you happy that you didn’t decide to pursue medical school?  Where do you plan to go next?

A. To paraphrase Lou Gehrig, today I consider myself to be the luckiest lawyer in Detroit. I’m working for the best, and best-known, criminal defense firm in Michigan. The cases we get tend to be more complex and more challenging; and, in the end, much more satisfying. I definitely like working for Neil better than being on my own. It’s the best of being a PD and private attorney. I have a manageable and interesting caseload, and I only have to worry about the practice of law, not the business of law.

It’s been ten years since I started law school, and seven since I became a lawyer. What a long, strange trip it’s been. As for what’s next, I’ve got a pretty sweet gig going now. But eventually, I’d like a robe and a gavel. We’ll see.

Cross: Murray Newman, The Prosecution Eventually Rests

Dec. 23, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Houston criminal defense lawyer, former prosecutor-for-life and Fault Lines contributor, Murray Newman.

Q. You interned with the Brazos County District Attorney in college, and went straight to work for the Harris County District Attorney after law school. You wanted to be a prosecutor. Why? Was it that prosecutors were the good guys? Was it to put all the bad dudes away? Were you saving the world?  Did you consider anything other than being a prosecutor? Were you a true believer?

A. I grew up across the street from the elected D.A. in our county and I remember that when he was prosecuting a capital murder case, the whole town was up in arms about it.  I thought what he was doing was so important and so cool.  I wanted to work on murder cases too.  I was a morbid kid, I guess.

I wanted to be an FBI agent pretty much until I was in college.  It just seemed bad ass to me. Ultimately that FBI agent idea gave way to being a prosecutor.  I didn’t think I was going to save the world, but I thought I would always be fascinated by criminal law.  I was right about that part.  It’s probably fair to say I was a true believer back then.

Q. Many baby prosecutors suffer from a grossly mistaken self-image that the reason they are treated so well by judges, they win so regularly, is that they’re just the greatest lawyers ever. Was that you?  Did you indulge the fantasy that it wasn’t because you were a prosecutor, but just a brilliant lawyer, that allowed you to enjoy great success in the courtroom?

A. In Houston, we start out trying misdemeanors for the first year or two, and the majority of those cases were DWIs.  Those cases are normally such toss ups that you are happy if you have at least a .500 batting average.  I think they sent us all to misdemeanor first to help break us of the notion that we were God’s gift to litigation.  When you finally get called up to do felonies, those are generally better cases and the ego starts developing with all of your wins at that point.

Yeah, I was probably guilty of having an overinflated sense of worth as a trial lawyer.  Getting the first “not guilty” on a felony case was a big kick in the crotch.  In retrospect, of all the felony cases I took to trial, only three or four of them were really tough cases for the prosecution.

Q. One of the benefits of being a prosecutor is that you get to try cases.  What was your first jury trial? Were you a master or a master of disaster?  Looking back, did you do a great job or do you cringe now at how you tried the case?

A. I actually tried my first case when I had a student bar card and was working as an intern back home in Brazos County.  It was just a simple DWI with a breath test refusal, but it was against the best defense attorney in town. He handed me my ass, but he told me that I did a good job, so I was proud.

I remember picking my first jury and basically announcing to the jury that I was scared shitless and pleading with them not to pick on me too bad. That’s kind of embarrassing in retrospect.  Since it was in my hometown, I think I knew about ten people on the panel.  Other than that, it wasn’t too bad.

Q. Prosecutors are given enormous discretion in how to deal with other people’s lives. Did you appreciate that as a young prosecutor?  Did you feel you had sufficient life experience, sufficient understanding of other people, that you were qualified to make life-changing decisions?  Did there come a time when you realized, “holy crap, if I’m wrong, I could destroy a human being’s life?”  Was this power exercised with humility or hubris?  Did there ever come a time when you realized the seriousness of your decisions, and started to question whether you might be wrong?

A. I think the thing that defense attorneys who were never prosecutors don’t get about the job is just how much prosecutors believe themselves to be the victim’s representative.  We typically didn’t look at it from the perspective that we were representing the State or playing with other people’s lives.  We looked at it like we were there to seek justice for the victim.  That’s where so much of the self-righteousness that is associated with the prosecutorial profession comes from.

None of us thought we needed more life experience because we knew what was right and what was wrong.  That’s all we needed to know.  In retrospect, the lesson that we might have learned from more life experience would have been to actually consider the other side of the story:  the defendant’s family, his circumstances in life, etc.  Theoretically, prosecutors know that Defendants are people too, but we are too busy wielding the sword of justice to worry about that.

There was a moment toward the end of my career as a prosecutor, where I prosecuted a gang leader who couldn’t have been more than 19 years old.  He had ordered two hits, including the murder of a 14-year-old kid and he was sentenced to life in prison.  As I was leaving the courtroom, the guy’s little son was running around in the hallway, and he ran up and hugged onto my leg.  I was a new father at the time, and I had just persuaded a judge to sentence this little kid’s dad to life.  I felt like shit.  There wasn’t any doubt that the kid’s dad was guilty, but the collateral damage weighed pretty heavily on me. It still does.

Q.  Plea bargaining is widely criticized for pushing innocent people into pleas, particularly when insisting on innocence could mean awaiting trial in jail when copping out meant going home. Did you give this much thought when fashioning plea deals?  Did you think more about the weakness of your case and possibility of losing than the possibility that a sweet offer could coerce an innocent person into pleading guilty?

A. I can’t really say that I gave it all that much thought, at least not that I recall.  I tried to be a prosecutor that would listen to whatever a defense attorney was trying to tell me. I’m not saying that I believed everything they said when they asserted innocence, but I don’t recall any incidents where I was saying “screw you and your innocence claims, perhaps some more time in jail while you can’t make bond will change your mind.”

I wasn’t scared of dismissing a case where I thought somebody was innocent, but I wasn’t a pushover, either.  All prosecutors will make lower recommendations on cases that they think are difficult to prove, but we usually felt comfortable in our own minds that the accused was factually guilty.  If we weren’t certain of that, we were told that we shouldn’t be making an offer in the first place.

Q. In 2008, you left the Harris County District Attorney’s office, under less than desirable terms. Or as you call it, when the Sith Lords took over. You weren’t quite ready to go, but a shift in management with the election of Pat Lykos, whom you didn’t support, put your head on the chopping block.  Were you surprised at how politicized your office turned out to be? Did you have any desire to go to the dark side, or as hard as it was to be turned out, did you really want to continue putting the bad guys away?  Did your former adversaries accept you as one of them? Was there any payback for things you did as a prosecutor?

A. I probably would have been a lifelong prosecutor if Pat Lykos hadn’t handed me my walking papers. I loved the job and I loved the people I worked with.  I knew that opposing Lykos during the election was an “all or nothing” proposition and that I would get fired if she won the election.  She didn’t disappoint!

I do think that the Lykos era was a drastic departure from earlier administrations because everything she did was so publicized.  Her administration invited media attention whenever they wanted an attaboy, and that is what led to the Office being more politicized.  I think that has continued after Lykos got voted out and I don’t think it’s good for the criminal justice system.  When you invite attention to all of your successes, you also open yourself up to more scrutiny of your failures.  I think that leads to more reluctance to dismiss tough cases.

The irony is that Pat Lykos probably did me the biggest favor of my life.  I think my life has a lot more balance and happiness in it now.  I like being my own boss. I like helping people who need it. Every once in awhile I will read about some really upsetting case and think, “Man, I’d love to be the prosecutor on that one,” but generally I don’t miss the job description all that much.

The thing I miss the most is probably the camaraderie with the other prosecutors, but I still see most of them.  The defense bar here could not have been more welcoming.  People like Dan Cogdell, Mark Bennett, Pat McCann, Pete Justin, Tyler Flood, Charles Thompson and a laundry list of others went out of their way to help me figure out everything.  I owe them all tremendously.  I must not have been too big of an asshole as a prosecutor, because I never have had anyone come up to me and say, “Now that you’re on our side, let me tell you what a prick you were as a prosecutor . . .” At least, I hope that’s the case.

Q. You started a blog, Life at the Harris County Criminal Justice Center,  around the time of Pat Lykos’ run for office. Why? What made you think it worthwhile to reveal the inside story of what was going on in your office?  When you started the blog, you did so pseudonymously. Did you think no one would figure out who you were?  How did that work out for you? In retrospect, was it a good idea or a bad idea?

A. I started the blog in 2008 when the D.A.’s Office was going through a huge scandal over some racist e-mails that our boss had sent.  I remember picking a jury and we had to address the issue of what the venire panel thought of our office.  It wasn’t pretty.  The media was bashing us right and left.  The initial intent of the blog was to offer some minimal type of rebuttal as to who we were.  The little description that I had back then (and still do) is “An insider’s guide to what is really happening . . . “ I didn’t think we were being treated fairly.

I wrote anonymously so that nobody would think that I was speaking on behalf of the D.A.’s Office.  For the first month or so, only my wife knew, but it didn’t take too long for my secret identity to be the worst kept secret in the courthouse.  When I finally officially announced my name on the blog, there were some attorneys who came up to me and said “I had no idea it was you!” and I was always stunned.

Although I think my personal blog has probably long outlived its usefulness, it had a good run in its prime.  I don’t regret it at all.  As a matter of fact, I’m proud of what it accomplished when it was more relevant.

Q.  After being ousted by Darth Lykos, you decided to open up shop as a criminal defense lawyer. Were you ready to start defending the people whom you had spent your career putting away? Was it just a job, or did you come to realize that there were two sides to the story, that they weren’t just the evil criminals prosecutors thought they were? When did you reach the point where you were good with the idea of being responsible for defending the accused rather than convicting them? What caused that change of perspective?

A. Being honest, I think I looked at defending people as just a business decision in the beginning.  I was trained to do criminal law and I was no longer a prosecutor.  It didn’t take a genius to figure out what the next step was.  I felt confident that I could do it on an intellectual level and I didn’t have any worry about doing it.  I knew the job description and I knew how to do it.  I don’t think I realized how internally responsible I would end up feeling for each client.  Even if I couldn’t solve “ALL” of their problems, that agonizing feeling of finding a way to help improve their situation somehow was unexpected.

I don’t think I anticipated how much I would come to really like my clients and care about how the story ended for them. I got to know their families and regarded them as friends. I think the change in perspective happens naturally when you have a client you like and realize that what the State is trying to do to them is bullshit.  Fighting for someone accused of something bonds you to them even more than the way a prosecutor bonds with a victim’s family, in my opinion.

Q. In 2013, you learned you had leukemia. How did that affect your practice, your life, your world?  You had kids, a family, a law practice that only supported your family as long as you were working, and then you had cancer. You underwent chemo, and came out the other end. Did that change you, your goals, your aspirations?  Did you wonder whether you made the right choices in life?  What happened to your practice while all this was going on?  And did you learn who your real friends were, as is so often the case when adversity strikes?

A. I got really really lucky with how low-grade my leukemia was, and that is something that will never be lost on me.  My doctors were great and told me that it was all going to be fine and I believed them.  I never had one of those “long examinations of my own mortality” moments.  I did have to miss some work but not all that much.  I kept it to myself with the exception of some very close friends and colleagues, because I knew I was going to be fine.  I didn’t want to be a complete attention freak when what I had was so much lighter than what others were going through.  Those co-workers that I did tell about it were phenomenal – especially Luci Davidson, who was there to help me with everything.  They covered cases for me and checked on me.  We were very fortunate that my wife had good insurance or we would have probably been bankrupt.

Q. You’re now seven years past the day you had to pack your bags and leave the Harris County District Attorney’s office. Do you miss it? Is there still a voice in your head that tells you to prosecute rather than defend?  Even though you are now solidly accepted within the defense community, is there still a soft spot in your heart for the prosecution? If you got a call tomorrow, would you return to the District Attorney’s office and get to work putting the bad dudes away?

A. I think I will always have a soft spot in my heart for the prosecution  Part of that is because I think that while some complaints about prosecutors are valid, I think many are not.  I may not always agree with prosecutors and individual things they do, but it isn’t like the profession should be abolished.  There are a lot of damn fine people and lawyers who choose that profession and they do it for the right reasons.  There will always be the power hungry ones that screw up the reputation of others (just like there are in any profession), but I hate to see the tendency to vilify a prosecutor just because you disagree with them.

I worked for a long time with some great people.  I do sometimes miss having all my friends right down the hallway of where I work.  Like I mentioned before, every once in a while I’ll see that case that I’d love to be prosecuting, but other than that, I’m happy where I am.  Once you find yourself free of a bureaucracy and doing your own thing, it is hard to want to go back to having a supervisor and explaining your every move.  Then again, I do keep getting remarried. [Ed. Note: Murray is on his third marriage, but swears this one will last.]

Cross: Charles Lavine, Cleaning Up Corruption In Albany

Dec. 16, 2015 (Mimesis Law) — Ed. Note:  Scott Greenfield crosses New York State Assembly member Charles Lavine (D-Glen Cove), Chair of the Assembly Ethics Committee and a former criminal defense lawyer.  Assemblyman Lavine authored a New York Times op-ed following the convictions of Assembly Speaker Sheldon Silver and Senate President Dean Skelos.

Q. Before being elected to the New York State Assembly, you were a criminal defense lawyer, starting with the representation of indigent defendants at the Legal Aid Society, becoming a member of Grossman, Lavine & Rinaldo, and then going solo. That’s a lot of baggage, in terms of experience and exposure, particularly since you took the most difficult route possible, primarying an incumbent just to get to the general election. Why? What drove you to take such a crazy chance? Was your history on the wrong side of the courtroom used against you? What does it take for a criminal defense lawyer to win an election?

A. I had always been involved in some type of politics. Before running for the Assembly, I had been Democratic leader of the Glen Cove Committee, counsel for the Industrial Development and Community Development Agencies, served two terms as counsel for North Country Reform Temple, served on the Planning Board and on the City Council. I had also fought to elect good people to my school board and for responsible school budgets. By 2004, passing school budgets in Glen Cove and other communities had become very difficult in part because New York State hadn’t had a budget on time for 20 years and it was impossible to know how much state funding would be available when education budgets were voted upon. I ran on a platform of on time budgets, the fundamental building blocks of good government. I never viewed fighting for what was right as “taking a crazy chance,” perhaps in small measure because of the years I spent representing unpopular people.

Being a defense lawyer in controversial cases was used against me. I believe, though, that it probably got me more votes than it cost me. The people who would hold the crimes of my clients, primarily appointed clients, against me would likely never vote for anyone like me anyway.

Criminal defense lawyers who have been involved in their communities and local governments and have some experience in politics can win elections. Whether prosecutors or criminal defense lawyers, it is critically important to have good lawyers in elected office.

Q. On the day you got off the (metaphorical) bus in Albany, you must have had some anticipation of what you would be looking at as a member of the state Assembly. Was it what you expected? Did you expect politics to be altruistic or dirty? Did you expect your colleagues to be knowledgeable, dedicated public servants, putting the interests of their constituents first and foremost?  What did you find there? What surprised you, thrilled you, appalled you, when you took your seat in the Assembly?

A. Human nature is the same, whether in local or state government. As in local government, most of the members were well intentioned and dedicated. What I did not anticipate was the skill, professionalism, knowledge and dedication of the staff. While little appalled me, it was extremely distasteful to witness the manner in which some Senators gloated on one of the evenings that marriage equality was defeated. Whether for or against, the debate was about human rights and deserved far more respect from those who were victorious than night. Their victory, however, would prove to be short lived.

Q. The view of lawmaking from the outside is never quite the same as it is from the inside. No doubt you could have rattled off a few dozen changes in law that were absolutely needed when it came to the New York Criminal Procedure Law and Penal Law, having lived through the mess as a trench lawyer. As a rookie legislator, was anyone interested in doing anything to reform the mess?  Did you have the chance to make changes or were you met with fellow legislators who thought the new kid should be seen and not heard?  Was your experience shown respect, or were you relegated to the seat farthest away from power and influence?

A. The Assembly conducted the most extensive hearings on the death penalty in American legislative history starting in the months before I was sworn in. While I was allowed to sit with the members for the initial hearing, I asked no questions before being sworn in, after which I was able to engage and play a meaningful role in that I was the only member who had ever handled death penalty cases in both the state and federal courts. I believe my opinion and knowledge were valued and I am very pleased that those hearings were instrumental in ending the death penalty in our state.

Q. As a newly elected, first-term Assemblyman, having just won a two-year term of office and still exposed to the potential of being unseated in the next election, what was the impact of having to run again, to raise money to fund your next election a mere two years off?  Certainly, the support of the party would be crucial in keeping your seat, Was this a means of keeping a new legislator under control, toeing the party line lest he be the target of a primary with the support of the party leader?  How much room did you have to move, regardless of what the party wanted you to do?

A. Interesting question. I have experienced political pressure, but very rarely by party leaders. That pressure came more from special interest groups. For example, the NRA once said it wanted to “take a shot at getting rid” of me and was “targeting” me for defeat. Tea Party opponents once brought an armed gunman to a debate I was having in a synagogue. When I supported consolidation of local governmental services, some local village officials were very antagonistic. One must be somewhat thick skinned and it also helps if one is not unduly afraid of controversy.

Q. In the aftermath of the convictions of former Assembly Speaker, Sheldon Silver, and former Senate President, Dean Skelos, two of the “three men in a room,” and with rumors swirling that the third man, Governor Andrew Cuomo, might soon find an indictment with his name on it, some might have suggested the best political move for a legislator was to keep a low profile, stay under the radar. Instead, you wrote an op-ed for the New York Times suggesting changes that might end the corruption reflected in these convictions. What were you thinking?  Why go counter to the common wisdom of keeping your name off Preet Bharara’s short list to take a chance by going public?

A. I became Chair of the Assembly Ethics Committee, Co-chair of the State Legislative Ethics Commission and Chair of a taskforce charged with redesigning the Assembly’s sexual harassment and retaliation policies in 2013, in the midst of the Vito Lopez crisis. Even though those positions involved very steep learning curves, they provided me with a unique vantage point from which to evaluate the ethical debacle that has led to the convictions of the Assembly Speaker and the last six Senate leaders. Writing the Times Op-ed was my responsibility and obligation. I believe United States Attorney Bharara is a consummate professional and I have no reason to fear that I will become a target of any investigation. The prosecution of legislative wrongdoers is an essential ingredient of good government.

Q. In your op-ed, you confront some very real problems that elude the understanding of many member of the public.  One of your most significant points is that the Assembly needs to change to four year terms from the current two years, relating back to the fact that it leaves legislators with about a twelve hour honeymoon before they have to hit the streets to fund their next election. The reaction in the Times’ comments wasn’t entirely positive, with many suggesting that a four year term just lets corrupt politicians stay in office longer. How do you explain the real life incentives faced by politicians to people who are sick and tired of politics?  If the public view of politicians is so cynical, and why wouldn’t it be given the convictions, how can they be convinced that there are legislators in Albany who aren’t there to enjoy graft and power?

A. My Op-ed piece does not call for four-year terms. It addresses reforms that the Senate and Assembly could take on their own to improve the legislative process and, in so doing, improve the legislative product. I remain an admirer of President John F. Kennedy and am still moved by his call that we ask not what our country can do for us, but should instead ask what we can do for our country. That sense of selflessness is an important ingredient of American exceptionalism. It is not a philosophy shared by some my colleagues who are intent on frustrating shared efforts, that is, governmental efforts, to make life better for our people. If we value our families, then we are dedicated to our communities, which are simply collections of our families. Government is nothing more or less than the organizational extension of community. My colleagues who revel in cynicism are engaging in the most cowardly forms of demagoguery.

Q. As you also make clear in your op-ed, the whole citizen-legislator schtick sounds a lot better from a populist point of view than it does from the perspective of legislators trying to get anything accomplished.  You write:

Despite the fact that New York is one of the largest states in the country and one of the largest economies in the world, my colleagues and I work shockingly few hours: Next year we are scheduled to spend just 57 days in Albany between Jan. 6 and June 16, when the legislative session ends.

Thirty of those days will go toward completing the state budget, due at the end of March. Those days will be totally consumed with fiscal analysis and negotiation, leaving only 27 days between April 1 and June 16 to consider all other governmental business, including more than 10,000 bills. There’s little chance we’ll get to more than a handful of those.

The numbers reveal an obvious and insurmountable problem, and explain a lot about why laws in desperate need for enactment or reform, like the dreaded archaic P.L. 265 knife law that has been so badly abused by police and damaged so many lives, will never reach the top of the list for consideration. If the Assembly doesn’t go full time, does that mean there is no hope for reform? What does a former criminal defense lawyer tell working guys who are arrested and prosecuted for nonsensical laws, whose lives are ruined because Albany doesn’t have the time to care?

A. We have to realize that the Assembly has been far more interested in modernizing our criminal laws than has the Senate. Mentioned earlier, the extensive hearings on the death penalty were conducted in the Assembly, not the Senate. As presently constituted, the Senate would easily and has easily passed bills reinstituting the death penalty and increasing criminal sentences whether justified or not. I would tell New Yorkers not to give up on the hope that change can be accomplished. That change, however, will remain elusive so long as the public is disengaged and lacks faith in its elected representatives to bring that change about.

Q. It seems the legislature is far better at passing new laws than cleaning up the mess of old ones that need fixing. And yet, the latest flurry of penal issues, such as bullying and campus sexual assault, raised significant and, perhaps, insurmountable constitutional issues. Does the legislature think about these problems? Do they understand the problems they create? In light of the popular support for ever more crimes, does the legislature have the guts to just say no to laws undermining due process?

A. There are any number of proposed criminal and civil legislative proposals that are constitutionally infirm. These do not go to the floor for a vote. Every major bill that is voted upon has been vetted in committee meetings and in majority conference in the Assembly and is open to debate on the floor.

Q. The mechanics of Albany have long created an incentive system for what Boss Tweed would have called “honest graft.” As part-time legislators, paid a decent salary for part-timers, perhaps, but a woefully inadequate income to maintain a decent lifestyle in downstate New York, politicians are forced to have outside employment to make ends meet. And nobody really thought Shelly Silver was filling out interrogatories at Weitz & Luxenberg. Is there any politically acceptable way to change these incentives, to make it unnecessary for elected officials to need outside employment to feed their families? If their only real coin is influence, what practical means is there to provide an incentive to stay above influence peddling as a way of survival in Albany?

A. This is a challenge that was one of the reasons for my Op-ed piece in the Times. A full time, professional legislature won’t be a panacea, but it will help to eliminate many of the obvious conflicts some of my colleagues have when they are either employed by special interests or by the law firms that are under retainer to special interests. While this is obvious to every citizen of good faith, it is apparently not so apparent to my colleagues who make a great deal of money from those special interests.

Q. Perhaps the dirtiest secret of legislative politics is member money, where the party leaders hand out funds to members to spend on constituent causes. On the one hand, these funds can be put to good use on the local level, where legislators are thought to be the best judges of efficacy. On the other hand, this emits the unpleasant odor of a slush fund to pay off supporters. And no matter how good the use to which these funds are put, they expose members of the Assembly to allegations of graft and corruption. Can this be ended? Should it be ended? If it is ended, would this spell the end of funding for deserving local causes that rely on member money by way of dedicated legislators for their survival? Without it, what alternative means exist for small, local causes to serve their communities? Is ending an opportunity for corruption also ending a vital opportunity to do good?

A. The public has a right to know how every taxpayer dollar is spent. In my Op-ed, I describe the absolute necessity of having a clear-cut schedule placed on the state’s website describing which legislator initiated a grant, the amount and purpose and the entity to which the grant was delivered.

Cross: Orin Kerr, Because Computers Aren’t Going Away

Dec. 9, 2015 (Mimesis Law) — Ed. Note:  Scott Greenfield crosses Orin Kerr, Volokh co-Conspirator, Fred C. Stevenson Research Professor of Law at George Washington Law School, prolific law review author on computer crime and Fourth Amendment law, and beltway bon vivant.

Q. Your college degree came from that bastion of racism, Princeton, where you received a B.S. in mechanical engineering. You went on to Stanford for your masters in mechanical engineering. And then, having the capacity to contribute beneficially to society, something went horribly awry and you went to Harvard Law School. What went wrong? Why waste a fine education and an opportunity serve humanity by becoming a lawyer? What the hell were you thinking?!?

A. I really enjoyed studying engineering as an undergraduate. But by the time I reached grad school, engineering lost its sense of excitement. In my field, fluid mechanics, professors were spending their entire careers seeking only incremental improvements to the solutions of very specific problems. I didn’t want to devote my career to solving small problems that only a few people cared about.

Q. It took a smart guy like you until the completion of his masters in mechanical engineering to realize that fluid mechanics might be a bit limiting? There are certainly a wealth of opportunities beyond fluid mechanics to apply your education in ways that served a broader purpose, but you instead chose to abandon engineering altogether for law school. Why law, of all the possibilities that were open to you?

A. I thought it would be intellectually exciting, I thought it would lead to gainful employment, and I had a sense that lawyers could do important things. And I got into Harvard.

Q. After law school, you clerked for Third Circuit Judge Leonard Garth, then headed straight for Main Justice. Was that the plan when you decided to waste your life by going to HLS? Did you have the dream of saving society from the bad guys?  You landed in the Honors Program, doing computer crime, which was in its relative infancy back then. Was this deliberate? Did they figure your engineering background made you one of the few who could figure out how computers worked?  Did you have an interest in the budding field of computer law before, or did it come from your work at DoJ?  Or do you really hate computer crime, but can’t figure out what else to do with yourself?

A. As far as I can remember – it’s been a while – I didn’t have much of a plan when I decided to go to law school. I vaguely recall that I wanted to go to a big law firm and make a lot of money representing large corporations, probably in a field that involved technology.

But I caught the criminal law bug instead. Part of that was being inspired by my first-year criminal law professor, James Vorenberg. He was awesome. And part of that was my experience as a summer associate after my 1L year. I was at Morris Nichols Arsht & Tunnell, a law firm in Wilmington, Delaware, mostly working on patent litigation. The people were nice, but I found patent work pretty dry. An associate at the firm had a pro bono criminal case and she let me help her. I was hooked. The human stakes were so much more interesting to me than which large corporation would keep a pot of money.

I ended up in the computer crime section mostly by accident. I was accepted into the Honors Program, and they gave me a list of sections I could rank. Computer crime seemed cool and the section had a good reputation, and I figured it was a good fit with my tech background. So I ranked the Computer Crime and Intellectual Property Section (CCIPS) first. But I got the job only because CCIPS management made a mistake. CCIPS was new and they had never hired an Honors Program lawyer before. When they received the form to rank candidates, they thought it was a form to invite candidates in for an interview. They decided to interview me and submitted the form. Later on, they were informed that they had permanently hired me. The Chief of CCIPS was livid because I was filling a spot he wanted to use for an experienced lawyer. He tried to get me fired before I arrived.   But it was too late, as there was no form to unhire someone. When I started the job and met with the Chief of CCIPS in his office, he told me that he didn’t want me in the section and that he had tried unsuccessfully to get rid of me. But there I was.

Q. You spent three years toiling in the trenches of Main Justice as a trial lawyer. Did you try cases? Back then, the internet was still in its infancy (maybe toddlerdom), and while the Computer Fraud and Abuse Act was already a tween by the time you showed up, it too was still subject to interpretation as to its application to ever-changing technology.  What did you think of the CFAA as a prosecutor? What were the issues with computer fraud when you were in the trenches?  Looking back now, are you happy with how you handled computer crime? Would you have done things differently knowing what you know now?

A. My trial experience at DOJ all happened when I was a SAUSA in the EDVA, which I did on a detail from CCIPS. I had two jury trials, a bunch of misdemeanor bench trials (common in the EDVA, which has a big misdemeanor docket), and the usual run of hearings (supervised release violations, etc.).   When I was at CCIPS in Main Justice, my title was “trial attorney,” but there wasn’t much cyber-related trial work to go around. The AUSAs in the field took most of what was there. I helped AUSAs with the cyber aspects of their cases, but the cases belonged to them.

I started thinking seriously about the CFAA and what it meant late in 1998 and early in 1999, when I was at CCIPS.  My recollection is that, at the time, everyone thought the CFAA was pretty simple and uncontroversial. You just had to look for unauthorized access, which was thought to be straightforward and obvious. My view was different: It seemed to me that there were lots of different ways of thinking about “access” and “authorization.” I also thought that the narrower reading of the CFAA was correct. When the civil cases adopting really broad interpretations of the CFAA started to emerge around 2000 and 2001, I thought they were wrong.  I wrote my first article on the ambiguity of the CFAA and the need to interpret it narrowly soon after I left DOJ. I left DOJ in 2001, and the article was written in 2002 and published in the NYU Law Review in 2003.

Q. After two years of teaching, you got a gig as law clerk to Supreme Court Justice Anthony Kennedy. How did you manage that coup?  As the “swing vote” on the Court, you were working under perhaps the single most powerful judge in the nation. Did you share his perspective on the law? How involved were you in the decision-making?  What was the coolest case you worked on for Justice Kennedy, and what was your role in the case?  Did you ever find yourself in strong disagreement? If so, how did you deal with it? And how did Justice Kennedy deal with you?

A. How did I get the job? Well, I applied.  It was a long shot, and I wasn’t expecting anything. I hadn’t been on law review, I hadn’t clerked for a feeder judge, and I didn’t have references from the usual bigwig Harvard professors.  But sometimes strange things happen, and it worked out.

I had some common views with Justice Kennedy, but we approached a lot of issues pretty differently.  I think the law clerk ethics rules still prevent me from talking about particular cases, though.

Q. Following your stint as law clerk, you spurned another opportunity to use your not insignificant education and experience for good, and went back to teaching. Why?

A. GW let me come up for tenure the semester I returned from my clerkship. It was an easy call.

Q. For a guy who spurned engineering because it didn’t offer you the opportunity to work on issues that affected a lot of people, academia alone is curious, and tenure as the reason emits an unpleasant odor. You could have gone for the big bucks, the earth-shattering cases, and instead you chose the cloisters and snot-nosed kids. There had to be more than cheap and easy tenure. I call bullshit. Why?

A. You see academia as a way to avoid the real world.  But I think a law professor can have more influence on the real world than a practitioner can.

Q. More influence? Does that mean by scholarship and research, by teaching others, by thinking deep thoughts, by serving on committees where only mitigated speech is tolerated?  What makes you say that?

A. Influence can happen in different ways, but scholarship and research is probably the most direct.  Some people say that no one reads law review articles.  But I don’t think that’s true.  A person who writes intelligently and thoughtfully about a really hard issue, especially one that others are struggling to figure out, can have a big impact.

My co-authors Wayne LaFave and Yale Kamisar are good examples.  Wayne’s work has been cited in thousands of legal opinions.   When there is a hard Fourth Amendment question, a lot of judges consult Wayne’s treatise to see what he has to say.  And Yale’s articles had a significant influence on the shape of interrogation law at the Supreme Court.  Would Yale and Wayne have had more influence on the law if they had started the criminal defense firm of Kamisar & LaFave?  I don’t think so.

Q. As one of the co-conspirators at Volokh, you’ve laid your politics on the table as a pretty conservative libertarian.  How did you come to that view?  How has it influenced you prolific writing?  Aside from computer crime, you’re deeply into Fourth Amendment law as well, where you’re not particularly inclined to be kind to the defense?  What happened to that libertarianism when it comes to search and seizure?

A. In college, I was vaguely left-of-center in the way that I would guess most college students are. After college, I decided to study American political conservatism because I hadn’t thought seriously about conservative ideas. I read as much as I could, and I was more persuaded by it than I expected. I shifted to vaguely right-of-center some time around 1994. Going to Harvard Law School, which I started in the fall of 1994, was probably a part of that. The political orthodoxy at HLS was so strong that it helped pushed me away towards the right.

I think my scholarship generally reflects my Burkean conservative views. I tend to think there’s a lot of wisdom in the traditional ways of doing things, and that plans to quickly and dramatically change the legal system are often utopian and will only make things worse. Given that, my scholarship tends to be more skeptical of dramatic change than that of other law professors. The equilibrium-adjustment theory is a good example. It has judges trying to maintain old protections as technology changes, changing the rules to preserve old values. It’s essentially a Burkean idea – preserving the old amidst the new.

From a career perspective, though, I suspect my Burkean conservative instincts are a hindrance. The hip thing in legal academia is to propose radical solutions; that is thought to signal creativity. In contrast, anything that doesn’t boldly challenge the status quo is considered overly cautious and small-minded. But so it goes.

Q. You’ve raised some fairly negative views toward the CFAA as being grossly misinterpreted to elevate terms of service into a sufficient basis for a criminal prosecution.  Along these lines, you served as one of Andrew Auernheimer’s (or “weev,” as we all know him) lawyers in the appeal of his conviction before the Third Circuit, and argued the case.  Of course, the conviction was reversed, but on the least sexy gound possible, venue.  Did it break your heart that the court didn’t decide on CFAA grounds?  When it came to representing weev, one of the most notorious trolls and generally difficult human beings around, did you have misgivings as to your argument on interpreting the CFAA resting on his very low-to the-ground shoulders?

A. I was very happy that we won, and I don’t have any misgivings about the case.

Q. One of the biggest bones of contention deals with the Magistrate’s Revolt, the refusal of some magistrate judges to sign off on warrants for digital content because of overbreadth and issues with disposition of data. You’ve been firm that the mags wrong, and this is for the judge to deal with after arrest. But since you can’t put the genie back in the bottle, you would give the government carte blanche to seize everything and sort it out later, after they’ve seen it all. Is there no hope for privacy in a digital world? Are there no limits, given that our entire lives can be seen online? Why, given your affection for equilibrium theory, shouldn’t the mags get involved to restore balance to the Fourth Amendment in a digital world?

A. I think you have this issue backwards.   I’m arguing for broad privacy protection, and you apparently want a world with only sporadic and discretionary privacy for a few lucky people. That is, I want the Supreme Court to interpret the Fourth Amendment to impose broad privacy protections in all cases, whether the cases involve warrants or not. The only way to get that broad privacy protection is from the Supreme Court in a case involving ex post review. On the other hand, you seem to only want privacy protection in the one in a thousand cases that happen to involve a warrant and one of the handful of appointed magistrate judges who decides to opt in to the revolt in that particular case. So in your approach, there’s privacy protection for the one in a thousand cases. You have to win the lottery to get privacy. But in my approach, everyone gets privacy.

Q. You’ve been a lawprof at George Washington since 2001, with a couple of stints as visiting prof at Penn and Chicago. Is that where you plan to stay?  Any thoughts of moving up the food chain, Harvard or Yale perhaps? A nice, warm bench, perhaps? What are the aspirations of a law professor who has made his mark, earned a firm niche through his scholarship and is still a young man?  Where do you go from here?

A. I’m going to Disney World!

Seriously, I hope to have the health, the energy, and the support to enjoy a long future writing law review articles on issues I care about.

Q. Unlike many academics, you also want to keep yourself in the game, as reflected by your involvement in the weev appeal. You’ve done some very successful pro bono appellate work, but what about getting back into the trenches and trying cases?  Is it now just a matter of getting involved in cases that involve your area of scholarship, or could you see yourself becoming an advocate for, say, the defense?  What do you think of law professors who bootstrap their scholarship for cause advocacy?  Is there a line that an academic shouldn’t cross, even if he still wants to be a player in the game of law?

A. I really enjoyed the small amount of trial work I did at DOJ. In a perfect world, it would be great to do more. But between not having a lot of trial experience, and it being a long time ago, I couldn’t jump back into it easily. Besides, I’m a “law guy,” so I’m mostly drawn to appeals. And when you have a full-time teaching job, it’s much easier to schedule appellate work.

I enjoy both scholarship and advocacy, but I see them as fundamentally different. Scholarship is about the search for truth. As a scholar, you go where the good arguments go, wherever that may be. It’s essential to be open to changing your mind and admitting the weakness of your position.   In contrast, advocacy is about helping the client. Obviously, as an advocate, the result you seek is predetermined. The only question is how you can best persuade the decisionmaker to rule the way that will best serve your client’s interests.

Cross: Chris Seaton: An Angry Good Ol’ Boy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cross: Jeffrey Gamso, Fighting To The Death

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

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

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

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

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

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

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

14. Eschew surplusage.

15. Not omit necessary details.

16. Avoid slovenliness of form.

17. Use good grammar.

18. Employ a simple, straightforward style.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yet I keep coming back.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I’m still hunting my white whale, though.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cross: Ken White, The Man Beneath The Popehat

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cross: Ken Womble, Fighting The Good Fight

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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