I recently had the most befuddling experience in the 27 years I’ve been practicing criminal defense.  Instead of letting me cross-examine the witness against my client, the “judge” made me ask her the questions.  The “judge” then decided whether the question was acceptable.  If she deemed it appropriate, she addressed the witness directly, often softly re-phrasing my question.

This event wasn’t in court. It was a college hearing on sexual misconduct.

In my mind, there are two big problems with this “judicial method”.

First, why would colleges, known as places of higher learning in America, casting off cross-examination, perhaps the greatest engine ever invented for the discovery of truth?

The relevant part of the Sixth Amendment to the Constitution reads:  In all criminal prosecutions, the accused shall enjoy the right . . . .to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

I understand that Title IX sexual misconduct allegations in a college setting are not decided in a criminal court, so the Sixth Amendment doesn’t apply. But cross-examination has been proven and time-tested as the best way to reveal the truth.  I am worried that without real cross-examination, Title IX hearings are not getting to the truth.

Second, and more worrisome long-term, the reason many colleges do not allow cross-examination is the belief that it is traumatic to the person being cross-examined.  This is true. The constitution does talk about the right to confront the witness because the trauma of confrontation can reveal the truth.  Truth is able to stand up to the trauma of confrontation.

Instead, college students, the accuser, the accused, and witnesses are being taught the lesson that preventing possible trauma to the witness may be more important than finding the truth.  For most of these students, this flawed hearing will be their only example of how a trial works.

Someday those college students are going to be prosecutors, judges, defense lawyers, and jurors.  I sure hope law school will help them unlearn this bad lesson, but I’m worried.

 

 

North Carolina Lawyers Weekly

One-man wolf pack

Source: Bantz, Phillip. “One-Man Wolf Pack.” North Carolina Lawyers Weekly, 16 Dec. 2015.

Prominent Charlotte criminal defense lawyer Christopher Fialko is going solo.

His current firm, Rudolf Widenhouse & Fialko, announced earlier this month that Fialko will be kicking off the New Year by separating from his longtime law partners and opening his own office. “I’ve had an excellent 16 years working with Dave Rudolf and Gordon Widenhouse,” Fialko said. “I just felt it was time for me to strike out on my own and see what opportunities might arise.” Rudolf Widenhouse & Fialko will become Rudolf Widenhouse following Fialko’s departure.

Fialko was still deciding on a name for his new firm, where he will continue to specialize in state and federal criminal defense. He said he did not have immediate plans to bring on any new law partners.

But he added, “I’m going to keep my eyes and ears open for what opportunities might come about.”

Last summer, Fialko defended former Carolina Panthers defensive end Greg Hardy in a high-profile domestic violence case that ended with Hardy being convicted of assaulting and threatening an ex-girlfriend.

But the charges were dismissed earlier this year after Hardy appealed and prosecutors could not locate his accuser.

In November, sports website Deadspin published a series of leaked police photos that were reportedly taken of the ex-girlfriend’s bruised face and body following the assault.

Fialko’s other recent noteworthy cases include the acquittal of a Salisbury police officer accused of excessive force and his successful defense of a lawyer who was allegedly involved in a mortgage fraud scheme.

He and Rudolf said in separate interviews that they were parting on good terms.

“He wanted to have his own firm. I understand that,” Rudolf said. “It’s what I wanted to do 20 or 30 years ago. I think everyone gets to a point where that is appealing to them. Chris found himself in a position where he could do it.”

“There’s no drama here,” Fialko added.

 

Domestic Abuse Case Against Hardy Unravels

Source: Gordon, Michael, et al. “Domestic Abuse Case against Hardy Unravels.” Charlotte Observer, 10 Feb. 2015, pp. 1A–5A

State’s key witness, Nicole Holder, could not be found to testify

Carolina Panther Greg Hardy exits the Mecklenburg County courthouse Monday with his attorneys, Frank Maister, left, and Chris Fialko, right. In July, Hardy was convicted by a judge of assaulting and threatening to kill Nicole Holder, a former Uptown waitress.

Greg Hardy’s domestic abuse charges were abruptly dismissed Monday, but the case against the Carolina Panthers’ Pro Bowl defensive end appears to have been unraveling for weeks.

That’s because the state’s key witness – Hardy’s former girlfriend Nicole Holder – told prosecutors months ago she didn’t want to cooperate and has been avoiding the repeated efforts of the Mecklenburg County District Attorney’s Office to find her and compel her to testify.

In July, Hardy had been convicted by a judge of assaulting and threatening to kill Holder, a former uptown waitress. But District Attorney Andrew Murray said his office hasn’t talked to Holder since November. And despite what Murray described in court as “extraordinary measures” to locate her, they still do not know where she is.

The prosecutor also told Superior Court Judge Robert Sumner that Holder had agreed to a settlement with Hardy, which heads off any civil lawsuits she might file in connection with the case. No dollar amount was mentioned.

Victims and witnesses routinely stop cooperating in domestic-abuse cases and prosecutors still take the cases to court. Murray, though, said the Hardy case was different. He also appeared to raise doubts about Holder’s credibility in a statement to the judge.

But other details also raised unanswered questions about prosecutors’ handling of the case. Hardy’s defense team announced an appeal of his conviction before leaving court in July. but Murray said prosecutors only “recently” had compared what Holder told police the night of the alleged assault with testimony at Hardy’s first trial.

That’s because prosecutors didn’t have a trial transcript. Hardy’s defense team did – attorney Chris Fialko hired a court reporter at Hardy’s trial in District Court where transcripts are not normally prepared. According to court records, Fialko also fought the prosecution’s request for a copy of the transcript in the weeks leading up to Hardy’s trial this week.

Murray’s Office would not elaborate on what prosecutors found when they compared Holder’s statements, but the district attorney said in court that with Holder unavailable, they “did not have sufficient legal basis” to enter her statements to police as evidence.

Several legal experts around town speculated that prosecutors spotted inconsistencies that prevented them from building their case around Holder’s former accounts. To enter an unavailable witness’ prior testimony and statements as evidence. prosecutors have to “vouch” for its truthfulness, said Charlotte defense attorney George Laughrun.

“If they’re seeing something in the evidence that gives them pause, they may have been placed in an ethical dilemma where they don’t want to vouch for their witness.”

Defendants also have the right to confront every witness, said Charlotte attorney Jim Cooney. Fialko may have successfully blocked Holder’s previous testimony and statements to police as a violation of his constitutional protections.

Besides, Cooney added, “Reading a two-hour transcript (from the previous trial) is about the worst way to present evidence that I know of, and if she’s not there, it presents substantial doubts about her credibility.”

Hardy, who came to court in a dark, pin-striped suit and white $600 Balenciagas tennis shoes, appeared impassive as Murray announced that the charges against the 26-year-old had been dropped. Neither he nor Fialko would answer questions.

Holder’s location remains a mystery. Murray says police staked out the addresses where she was believed to be living and requests to relatives to have her come forward. Her attorney, Daniel Zamora, had not cooperated, Murray said. Zamora did not return phone calls from the Observer on Monday.

In July, with Holder at his side, Zamora said Hardy’s conviction “sent a strong message to the people of Mecklenburg County that it doesn’t matter if you’re an average Joe or if you’re a professional athlete that plays for the Carolina Panthers: If you assault a woman and you communicate to that woman that you will kill them, you will be arrested, you will be prosecuted, and you will be convicted.”

Hardy has been on the NFL’s exempt list since mid- September. He played in only one game in the 2014 season but was paid more than $13.1 million. He becomes a free agent next month.

NFL spokesman Brian McCarthy said Monday that Hardy’s status remains unchanged until league officials “fully review the matter”.

Late in the day, the Panthers said the team was aware that charges against Hardy had been dropped. “Greg remains on the Commissioner’s Exempt List, and the NFL has advised us to allow it to complete its review under the Personal Conduct Policy,” the statement read. “There is no change in his status at this time.”

Original Conviction Appealed

Hardy’s abuse case was one of several involving professional football players that dominated the headlines for much of the NFL season.

Holder’s allegations included a description of an enraged Hardy throwing her into the bathtub of his uptown condominium and tossing her onto a futon covered with semi-automatic weapons. Hardy later turned in about 10 weapons at the order of a judge.

As Murray left the courthouse for the short walk up Fourth Street to his office, he was surrounded by a school of media. He again declined to answer questions. The Observer later sought additional information about the search for Holder, the decision to drop the charges and whether prosecutors considered launching a witness-tampering investigation when they learned of the settlement between Holder and Hardy, among other topics.

Witness tampering is a felony under North Carolina law, but it is also a charge that is rarely prosecuted, recently retired Superior Court Judge Richard Boner said Monday.

That’s because investigators need proof of a “quid pro quo,” that money changed hands to keep a witness from testifying in a criminal case. A civil settlement could have the same net effect but not meet the requirements of a tampering charge, Boner said.

“If you have proof of quid pro quo, then you’ve got some possible criminal liability. It’s the district attorney’s call. There’s a fine line,” Boner said.

As Hardy left the courthouse, at least one reporter asked whether he’d left the impression that he paid Holder off. He declined to comment on that and other questions.

Fialko did the same. “Don’t make me do a Marshawn Lynch on you,” he told the Observer as he left the courthouse, a reference to the Seattle Seahawks player who refused to talk with the media at the recent Super Bowl.

Hardy and his entourage drove off in a Honda Accord.

Staff writer Johnathan Jones contributed.

 

 

I found a book that speaks to me: Yes to the Mess: Surprising Leadership Lessons from Jazz, by Frank J. Barrett.

I always try to be reading a non-fiction book that is not about lawyers or the law. My brain needs to meander in other directions after each day of battling hard to solve legal problems for my clients.

A few years ago I recommended lawyers read The Checklist Manifesto, a book by surgeon and polymath Atul Gawande. Some lawyers shy away from using checklists on the theory they discourage creative thinking. Gawande’s readable book makes a persuasive argument that well-thought checklists can help in nearly all professions. I started using checklists more often in my work.

But Yes to the Mess has an opposite thesis: that the Jazz ethic of loose structure, jam sessions and the willingness to make mistakes leads to creative and effective solutions in ways that rulebook checklists don’t.

As I do every year, last month I went to New York City to attend NACDL’s White Collar Crime Seminar at Fordham Law School. I like the format: all of the presentations are panel discussions, loosely led by a moderator (usually Gerry Goldstein or Abbe Lowell). Sometimes things get messy as the speakers stray off topic or argue with each other, but these are my favorite parts: I get to see smart trial lawyers thinking out loud.

In Yes to the Mess, Barrett makes this argument:
When you’re learning to be a professional, it’s not just a matter of memorizing a set of rules or a stock of explicit knowledge. Often what you are learning is an outlook, a mood, a disposition. You’re learning to absorb a whole way of being – picking up practices, rather than learning about practices. This learning is anything but clean, rote, or logically arranged. Learning to be a practicing musician, like learning to be a practicing executive, is a sloppy process. It’s intuitive and vague. You are guessing and adjusting, trying to grasp what to do next, listening to how others grapple with dilemmas, imitating the phrases and facial expressions of admired peers, trying something based on vague glimpses and threads of meaning – and, critically, reorienting as you go.

Listening to the lawyer jam sessions up at Fordham, I picked up four ideas I think can help me on cases I’m working on right now. (I’m usually happy when I pick up one idea per seminar.)

One of the tasks I do in every hard case is to go to Starbucks, leave the phone in the car, and sit down with just a blank legal pad to think and chart out defenses and strategies. I guess this is a one-man jam session.  After reading Barrett’s book, I’m going to add one more item to my case checklist: more brainstorming sessions with my law partners and colleagues.

I keep thinking about and re-reading Adam Gopnik’s article, The Caging of America.

I know you are busy, but I hope you will read it, and think about what mass-incarceration is doing to America.

This morning’s Op-Ed in the New York Times by Michelle Alexander, suggesting the equivalent of a Strike by defendants against taking pleas has me thinking even more.

–Chris