Friday, June 11, 2010

The View From The Floor

As I lay on my side looking up from the floor of room 411, at the eight incredulous faces of the strangers I had come to know over the course of a week as jurors, I realized I had never seen them (or even imagined seeing them) from this perspective.

I was eye-level with the berber, but I had not fallen. Still, the surprise on the jurors' faces would likely have been no greater if I had. And how did I find myself in this predicament?

I found myself here because, in spite of the judge's warning to keep things as vanilla as possible in closing argument--to "tie everything to the evidence", to "not violate the End Zone Rule" by getting closer than he liked to the jurors--I had felt compelled on rebuttal--after sitting through the defendants' best attempts to euthanize the Constitution--to push the podium completely out of the way and purposefully lay myself on the floor of the courtroom, hands behind my back in mock cuffs, in order to argue up to the jurors as they peered over the bar to see just what the hell I was doing. The judge had ordered us not to get too close to the jurors; he had not, however, placed any restrictions on how close the jury could get to the lawyers, and frankly I was hoping to draw them so close to get enough bounce that a juror might feel compelled to come help me off the ground. But first, I had a point to make.

The view from the floor was, I argued to them, the very same perspective my client had when he was handcuffed, tossed"like a bag of trash" (according to one eyewitness) into the Statewide Narcotics Task Force van, and beaten and tortured by electrocution. It was a perspective, I told them, which they had a duty to tell the defendants they could never impose on anyone else. It didn't matter to me, and it shouldn't matter to them I argued, that my client was incarcerated or that he had admitted to them that his main occupation in life was to have been (when not incarcerated) a drug dealer. There was, I argued, no drug dealer exception to the Constitution--nor of any other kind--when it comes to excessive force.

I climbed up off the floor thinking, as always, that I had neither done as good a job as I had hoped, nor as good a job as was necessary to win the case. More often than not, being a Section 1983 plaintiffs' lawyer brings to mind the following lines by John Prine: "I bought the rights to the inside fights, and watched a man just beating his hand against a storm window." In other words, being a Section 1983 Plaintiffs' lawyer often means that you are no stranger to the view from the floor.

The case went to the jury at 11:15 a.m. on Friday June 11; tomorrow, we resume deliberations.

Thursday, June 3, 2010

Rx for Liberty

Oh, that pesky little infection better known as liberty- whatever are we going to do about it? How about we just leave it in the hands of social workers and administrative agencies?

Today I nearly got run over by the steamroller that is Family Relations. Apparently, a new policy has gone into effect whereby if an accused does not get some kind of treatment- despite claiming his innocence and pleading not guilty- then they will oppose the modification of a protective order. And they will do so without even looking at the file or talking to the parties, and despite the weakness of the case- since when do we delegate these duties to semi-literate automatons?

And what is the end result? A client who, looking to dance the Family Relations softshoe to get back home, seeks treatment will later have it used against him or her as evidence of consciousness of guilt; the client who refuses will be barred from entering his or her own home if that- as is so often the case- is where the alleged victim resides, regardless of how obviously flawed the case against the accused may be.

And so, thank goodness for the wisdom of free-thinking judges who understand that they are not bound by the policy strictures of Family Relations, or any other administrative division or agency. A wise and brave judge today, a rarity on the bench in my brief experience, saw through the Family Relations shell game and modified a protective order in a case where the accused has no history, was never ordered to do treatment, and the case against him is as flimsy as a house of cards. For now, He can return home to be with his pregnant wife when the alleged victim is not home; at a later date, he hopes to return home for good, but he understands that first we must resolve this case.

Man/Mins

Ordinarily, I can't argue possible punishment to a jury. Their job is to find the facts, and then coldly deliver the body over to the judge for sentencing, no matter how malleable the burden of proof is and how that calculus might change if the jury knew the possible penalties. They are told that possible punishment is no concern of theirs, presumably because in the vast majority of cases, a sentencing judge's discretion is virtually unfettered to the extent that a sentence from a walk out the door to a life behind bars is entirely possible, depending upon the maximum sentence possible, and thus any jury consideration of possible punishment is nothing more than naked speculation..

But why can't I argue punishment in cases where mandatory minimums apply? In those cases it is a fact that my client, if convicted, will be sentenced to no less than a certain period of incarceration. It's not as though, under certain circumstances, we don't already recognize a jury function in sentencing: under certain circumstances, juries play a role in sentencing such as when a sentence enhancement is available to a judge and it constitutes an element of a crime (such as in persistent felony offender charges). Under those circumstances, a defendant is entitled to a jury on that element or elements.

Compare that to the situation where mandatory minimum jail sentences apply: Practically speaking, in cases where mandatory minimum sentences apply, the sentence enhancement has been tacitly imposed because the judge's hands are tied- he or she lacks the discretion to give a deserving person nothing more than probation, and so the jury becomes a straw man through whom another man's liberty is mortgaged. In those cases, where it is a fact that a defendant convicted off the crime charged will be subject to a mandatory minimum sentence based solely upon the jury's verdict, why shouldn't the jury know that fact?

WWFD?

Forgive me if you think me a Luddite, or just a lout, but I seem to remember my Zinn saying something about how the forefathers of this country were essentially self- interested bootlegging outlaws who Believed "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." And don't forget, they gilded the Declaration Lily with a Second Amendment, presumably because it seemed most likely to effect their safety and happiness. Similarly, they believed they ought to be able to tell the state/cops to: (1) get fucked, (2) get lost, or (3) get your meaning from the fact that despite your fluency in English, you're not talking to them. Or at least, that's what I gathered from the First and Fourth Amendments. Therefore, I am certain they would have stood behind Miranda; I am equally certain they would have shouted down Berghuis v. Thompkins.

I wonder if any of these "justices" has ever had any interaction with cops that went beyond thanking them for providing security at a function? Or have they all been too concerned about their political ambitions to go to a concert, attend a political rally, or engage in a little civil disobedience, and is this why they are presently further insulated from the common man than they ever have been? Hugo Black lived and breathed with us; I'm not entirely sure John Roberts doesn't have his oxygen imported from the peaks of the Himalayas.

To my mind, Berghuis stands for the proposition that, if you have just been beaten by the cops, you are possibly concussed and likely traumatized by the treatment you have received at the hands of men and women whose salaries your taxes have paid, and you just can't seem to recall your time at Julliard or muster the elocution to say "Begging your pardon, kind officers, forgive my face for having struck the heels of your hands and feet so hard, but I will not deign to talk with you without my attorney present," then you have not invoked your right to remain silent.

Silence doesn't mean silence anymore? Is the right to remain silent just a remnant from the Department of Redundancy Department?

WWFD? What would the framers do?

I think they'd be out in the streets. I'll be up on my feet, arguing against this garbage

Wednesday, May 26, 2010

Conflicted

The call was overdue already, but coming towards the end of the day gave it that extra sense of impending doom- rarely does good news come at closing time.

So as I reached for the phone, with "DMV" flashing in the display and the nascent despair of presumed bad news already breaking my heart, I dwelled once again on my singular, persistent gripe about administrative hearings: they are inherently conflicted. And DMV per se hearings are a perfect example...

A judge/hearing officer who is also the prosecutor, and who is hired by the agency on a contract basis...an agency seeking to inflict some punishment on a stranger accused of wrongdoing, and a human being looking to impress his or her employer by pleasing the master...and he or she is given a whole arsenal of weapons with which to do the Commissioner's bidding while being almost entirely insulated from meaningful review: UAPA "rules" of evidence (read: wild west), a civil preponderance standard of proof, being limited to 4 issues in a forum where the Constitution is considered optional at best, an appellate right to take an administrative appeal to the Superior Court where the evidence will be "scrutinized" under a substantial evidence standard of proof...

How can the anxiety about getting a new contract not be lurking in the hearing officer's mind as he or she hears the evidence and rules against or in favor of my client? Every time I have a hearing at the DMV, I wonder if there's a quota system in place and if I'm on the losing end of it- has today's hearing officer already restored his maximum number of licenses for the month, or year?

These are not lifetime appointments, and it would be expecting something superhuman of these hearing officers to think that they could be impartial. Cops know they aren't paid to not arrest people, prosecutors know they aren't moving up the line because they hand out nolles, and administrative hearing officers must know they aren't contracted to restore licenses.

"Hello?" I answer.

The impending heartbreak becomes more acute as the clerk on the other end of the line confirms that a decision has come in in a case of mine. The case involved a strong set of facts as to one of the four issues that can be challenged at the DMV and so I knew we had a shot. I had exposed the officers involved in the DUI arrest as liars, At one point even asking them for handwriting exemplars to compare with signatures on documents in evidence. The comparison revealed that the cops had lied and manufactured a "refusal" thus framing my client. The facts were strong but I knew there would be great temptation for the hearing officer to simply rule against us & let us take our slim chances in an Administrative Appeal.

At that same moment one of the "blessings" of the digital age shines upon me: the display flashes again, this time showing that my client is calling on another line. I can only imagine how worked up he must be, and I don't have the heart to switch over to his call until I have some news--good or bad--to tell him.

So, as the client heads to voicemail purgatory, I turn my attention to the clerk. "Your client's license has been restored," she says, and amidst my elation and relief, I find myself conflicted.

All of a sudden my faith in the system is somewhat restored and my skepticism about hearing officers somewhat diminished, but I don't trust the feelings: Does the system work, or did it just happen to work this time? And at the end of the day, does the answer matter to me, or my client, so long as we get the result we wanted? Would I care about the system's integrity if I knew that, every time, its flaws would break in my favor?

As I call the client to share the good news, I know those are questions whose answers I will struggle with for as long as I practice.

Thursday, May 20, 2010

Comstock; or, Follow Me To The Tower

How often have you found yourself on the side of Scalia and Thomas?

If you're like me, the answer is so rarely you can count the times on the hands of a fingerless man.

And then, there was Comstock.

Sir Walter Raleigh, and every other esteemed tenant of the Tower of London, commence spinning in your grave, because in America, first they come for the sex offenders, as the link in this post's title demonstrates, but ultimately they come for us all. Tell yourself it has nothing to do with you because you have nothing to hide from the morality police; tell yourself the Star Chamber is not alive and well from the local level right on up to the Supreme Court. Then read Comstock, again perhaps, and ask yourself: how many paces from the steps of the Supreme Court to the top of The Tower?

Not enough, anymore.

The Dung Beetle: Humble Beginnings, Humble Present Circumstances

Working for a living legend has its benefits, and its consequences. Appearing before judges and prosecutors who can regale me with more "Norm Stories" than I have yet compiled, I am often reminded of the great shadow cast by my partner,and there are times when, despite my outsized ego, I doubt my ability to claw my way out from under it. Alternatively, there are other times when, high on the ephemeral success of having secured a dismissal for a client under circumstances where others may have counseled a guilty plea, I look around and see the rosy fingers of daylight stretching out to meet me.

So, for all the judges who ask "Did Pattis make you grow that ponytail?", and every prosecutor who bitterly hangs a yellowed and tattered Trib column on his wall because it may have mentioned his office in the same breath as "cesspool of jurisprudence", and every client who asks "How did you hook up with Norm?", and anyone else curious to know the answer to all those questions, I offer the following one-up; it is my best "Norm Story" and, I submit, one of the best such stories, period.

Spring 2006, New Haven Superior Court: I am sitting in the windowless office on the fourth floor of the New haven Superior Court reserved for the thankless job euphemistically known as the Yale Sappern Fellowship. Essentially, I am counselor and scrivener to every pro se in new Haven energetic enough to make his or her way to my office for help with temporary restraining orders and divorces. In my brief tenure, I bear witness to a woman who strips to her skivvies to show me her wounds, another who won't talk without turning all the lights off in case her ex has followed her, and untold hours of waiting for the next knock at the door.

And so, when State's Attorney Michael Dearington knocks at my door in the Spring of 2006, he shakes me from a certain monotony with his recommendation that, if I don't have anything better to do, I ought to make my way up to courtroom 6a. It takes me all of a new York minute to stick a "Back in Five" sign on my door and find my way to the sixth floor.

T

Looking to the front of the room, I distinguish the two defense attorneys as best and most obviously as I can- by their hair: there is the short-haired crazy bald head, and the long-haired hippie. I then turn my attention to the victim:she is young, surrounded by a phalanx of attorneys, victims advocates, and family members, and seems in no way intimidated by the circumstances. The circumstances which I have yet to discern, though I am becoming keenly aware that they are far from ordinary as the victim stands to Speak.


And as the victim speaks, I realize that I am witnessing the sentencing of two co-defendants in the carjacking and gang-rape case of a UNH graduate student, perhaps the most notorious such case in the pre-Cheshire killings era. The victim is eloquent, demanding, and justified; by the time she is finished, the consensus is that the defendants are too.

Accordingly, the short-haired defense attorney stands up and, by way of argument, tells the court "Your honor, my client has mintained his innocence since the beginning and I would ask that you consider that as you determine his sentence.". He then sits down, never to be heard from again.

All eyes now turn to the ponytail and I wonder if I am now about to witness the anti-longhair bias that I have been warned about. As it turns out, I am not.

The longhair stands and, I am told, that this is "the Norm Pattis". New as I am to the area, this means nothing to me.

"Your honor," he says, "I can't see them right now, because I am facing you, but I know as sure as I have an outsized nose, that there are more eyes than not that are shooting daggers thorugh me and wondering how I can even stand before you on my client's behalf. I am not deaf, though the court and the state's attorney might think otherwise. I have heard the victim eloquently plead with this court to take my client out of society, as thought this court had the power to kill my client, which of course it does not. Rather, all this court can do is put my client behind bars for as much as the rest of his natural life, and beyond. But though my client might be condemned by this court to die behind bars, even still he will not have been taken out of society, because, though we might wish to forget them, prisons and prisoners are still a part of our society."

He went on to cite Plato's Republic. He quoted extensively fromRichard Wright's Native Son. In effect, he was the perfect counter to the co-defendant's attorney mailing it in and, while then judge certainly had his mind made up before he took the bench, nonetheless Norm had defanged the gallery and given even the most rabid observer a moment's pause.

Both defendants ultimately got 85 years, and yet the contrasting styles stuck in my mind. No matter what line of the law I went into, I determined, I wanted to be an advocate like the one I had seen referencing Richard Wright and Plato. Having come to the law expecting to practice elder law drafting wills and trusts, it was something of a 180 for me to reach out to my criminal law professor for an in-roads to Pattis. And yet, it paid off.

As it turned out, my Criminal Law professor, Linda Meyer, was married to a former US Attorney who had tried cases against Norm and was willing to reach out to him on my behalf. As I stood in his office, Jeff Meyer called Norm and arranged for us to meet. The rest, as they say, is history.

While Norm would still describe, rather accurately, that day's sentencing hearing as a shit-show, I would nonetheless describe it as also being the fertile ground in which I took root as an attorney. Perhaps that makes me a dung-beetle- if so (and I'm sure many prosecutors and clients would say so) at least it means I have wings to spread, as opposed to being sadly, unimaginatively earth-bound.