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Around 15 years ago I decided to adopt the strategy of over-informing my clients.  It seems like a simple and obvious idea, but it’s not.  There are drawbacks.

First, having a detailed discussion of sentencing guideline punishments can make the client worry that his lawyer assumes he’s guilty.  I don’t.  But I’ve learned, especially in federal cases, that the client really needs to understand what she’s up against.

Second, the client may become discouraged.  I give my client what I call …

The Roller-Coaster speech:  Defending a criminal investigation will be a long and scary ride.  Some days will have good developments, and we’ll feel at the top of the ride, and some days bad things will occur, and we’ll feel down at the bottom.  It’s important to try like hell to keep an even keel.

Defending a criminal case requires making many decisions along the way, and the client and I need to keep a level head at each decision point.

I’ve found the strategy of keeping my client very informed of the law, the process, and the facts helps us reach the best result.

Let me tell you a story about the power of Tom Petty, the case that should have put me in front of the Supreme Court, and a man’s redemption at Jail North.

While in Boston, on a college tour with my son, I ended up at a bar called Great Scott one evening.  The local listing said a few local bands were playing. (Live music replenishes my soul.) Ever since Petty died, bands play covers of his songs at shows and I was hoping to hear a few.

I first noticed these Tom Petty tributes the Neighborhood Theater in Charlotte, when Conor Oberst played a rollicking version of the Petty song Walls/Circus.  To my delight, Matt Charette and the Truer Sound played not one but two Petty songs in their set that night, including Learning to Fly30 seconds into that tune, I had a flashback to a crack cocaine bust at Charlotte-Douglas Airport circa 1999.

In the 1990s I was learning how to be a criminal defense lawyer. I represented many young black men who were arrested and accused of selling crack cocaine. This was the most intense era of America’s Mass Incarceration Project, although that descriptive term was not yet coined.

The federal court-appointed me to represent a fellow I will call “David” from New York.   This is David’s story.

When David got off a plane from La Guardia, three DEA agents were waiting for him at the gate. David had no luggage — just a stuffed backpack.

The lead DEA Case Agent pulled David aside and told him authorities in New York sent a tip he might be carrying drugs. David said, okay. The agent asked if David would mind stepping into a nearby bathroom to get out of the crowd, and the three agents ushered him into the bathroom.

They quizzed him:

  • Why are you in Charlotte?
  • Where are you going here?
  • Why don’t you have luggage?
  • Why did you buy your ticket with cash just an hour before the flight?

David answered each question briefly, but the agents were not satisfied.

  • Can we search your backpack? We would like your consent to search your backpack.
  • David answered, Do I have to stay here? Do I have to consent?
  • The lead agent answered, It won’t take but a minute.

David was standing against the bathroom counter with a DEA agent on each side of him. He was cornered.

In silence, David looked around, took his backpack off, and handed it to the lead agent.

The search found two saucer-shaped blocks of crack cocaine. (Back then cocaine was often cooked into crack using a standard coffee pot, hence the shape.)

It was enough crack to give David from New York a mandatory 10-year federal prison sentence, even though he had no prior record.

  • I challenged the search in a motion to suppress, arguing the agents detained David by walking him into the bathroom, surrounding him.
  • I argued that they did not have probable cause to search his backpack.
  • I argued that his silent submission to their authority was not really consent to search.
  • But my favorite argument was that when David asked, Do I have to stay here, Do I have to Consent, then the Fourth Amendment required the police tell him what his rights were.

At that time, the Supreme Court had never decided this question: If police detain a person, and he asks what his rights were, must they tell him he has the right to refuse consent to a search of his person or belongings?

This is the case that should have taken me to the Supreme Court.

We had a long suppression hearing, where the case agents described the above events. Not much dispute about the facts; just what the law required.

The judge held it under advisement for a good long while.

While we waited, David from New York took the 28-day treatment program at Jail North. He told me that he was a paycheck crack addict. He had a good city union job in New York, but each week when his pay arrived, he bought crack and smoked it all weekend. He was determined to get sober.

David asked me to come to his graduation ceremony, to hear a song he had just learned to play. To my surprise, the jail let me attend. It was me, the counselors, and about a dozen inmates. At the end, a counselor handed David a guitar.

He strummed the first chords of Tom Petty’s song, Learning to Fly. Inside the windowless jail room, he sang like he had learned how to be free.

I had heard the song many times, but the lyrics meant something new in that room. We criminal defense lawyers who rarely cry, wipe our tears.

A few weeks later, the judge ruled against David on the motion. Fortunately, the government was worried about what might happen on appeal, and offered a plea deal that would halve his time. David took it.

Damned if You Do, Broke if You Don’t

That’s the tough love I often must tell a client who wants to file for bankruptcy after some sketchy financial business.

Actually, it could be: Jailed if you do, just broke if you don’t.

Here’s the problem:

First, the client may have signed documents in a mortgage, credit application, or divorce litigation that swear to one list of assets and liabilities. Subsequently, when she wants to sign a bankruptcy petition, it’s not quite the same list, if you get my drift. This is a prosecutor’s dream;  two statements under oath that flatly contradict.

Second, even when a client does not have that glaring problem, he still exposes all of his finances for examination by a bankruptcy trustee. It can feel like the equivalent of a full physical examination, x-rays and colonoscopy included. If there’s a false statement in there anywhere, it’ll be found.

I gave a longer speech about this to a gathering of a couple hundred bankruptcy lawyers.  Here is the short manuscript spelling out the dangers of filing bankruptcy after misbehaving:

If you’re in this situation, get advice from a bankruptcy lawyer (and me) before filing.

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.

 

 


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.

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