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.

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.


A little bit of history was made at 401 West Trade Street Friday, but Charlotte didn’t seem to notice much. The Fourth Circuit Court of Appeals held a session of oral arguments at the federal courthouse here for the first time in more than 50 years. Lawyers and law students showed up in numbers to watch and note the event, but the rarity is not what struck me.

I sat in the gallery in the courtroom where Swann v. Board of Education – the seminal Charlotte school desegregation case – got its start. Overlooking the courtroom are eight large portraits of white male federal judges who have held court in the last 100 years. As best I can tell, in 140 years all of the federal district judges here have been white men. If I’m wrong, please let me know.

At 9:30 sharp, court began and the three appeals court justices walked in: Allyson Kay Duncan, an African American, Albert Diaz, a Hispanic American, and James A. Wynn, Jr., an African American.

I have been practicing in that courtroom for 17 years. For me, it was a jarring, surreal but welcome moment.

When the Fourth Circuit quoted from James Otis, Jr. this summer, I fell out of my chair.

Otis was a pre-revolutionary war hero, whose oration against the British Writs of Assistance in 1761 inspired John Adams and others. And the Fourth Circuit has reached 250 years back to Otis to assert that the criminal defense lawyers’ joke – the Fourth Amendment is dead in the Fourth Circuit – may not be so.


It’s true: the Fourth Amendment is making a comeback in the Fourth Circuit. Maybe it’s because the mood of the country has turned against big government. And big government will thrive when police can search whoever they want, whenever they want.

Maybe it’s because six new justices have climbed onto the bench in the last four years.

Maybe it’s because the justices are granting oral argument in more criminal cases at the Court in Richmond. We lawyers can speculate all day long. But the Fourth Circuit opinions seem to state plainly the reasons: the justices are tired of the prosecutors’ painting every set of facts as supporting any search and seizure.

In three cases this year, different Fourth Circuit panels flat out scolded the government for its practice of arguing that everything is suspicious. (Fair warning: what follows is some wonky stuff.)

First came the general scolding in Foster:

  • The Court expressed “our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity.” United States v. Foster, 634 F.3d 243, 248 (March 2, 2011).


  • “[A]n officer and the Government must do more than simply label a behavior as “suspicious” to make it so.” (Same.)


n  “Moreover, we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception.” (Same.)


Next came Massenburg, where the Court took time to remind the government and district courts of the origins of the Fourth Amendment:

n  “Indeed, as our late friend and colleague Judge Michael reminded us in the 2010 Madison Lecture at New York University, “The Fourth Amendment owes its existence to furious opposition in the American colonies to British search and seizure practices . . . . Th[e] controversy [over the use of general warrants] left citizens of the new American states with a deep-dyed fear of discretionary searches permitted by general warrants and writs of assistance.”” United States v. Massenburg, 654 F.3d F.3d 480, 486 (August 15, 2011).

And, my personal favorite:

n  “James Otis famously decried general searches as “instruments of slavery … and villainy,” which “place [ ] the liberty of every man in the hands of every petty officer,” warning against abuses by “[e]very man prompted by revenge, ill humor, or wantonness.” Timothy Lynch, In Defense of the Exclusionary Rule, 23 Harv. J.L. & Pub. P. 711, 722 (2000) (quoting James Otis, Speech on the Writs of Assistance (1761)).” (Massenburg at 488.)


And finally came the opinion in Hill, where

n  The Court reiterated “the ‘centuries-old principle of respect for the privacy of the home.’” Id. at 260 (quoting Wilson v. Layne, 526 U.S. 603, 610, 119 S.Ct. 1692 (1999). In Hill, the Court found that the emergency circumstances exception to the Fourth Amendment did not apply to allow entry into an apartment when the facts showed only damage to the front door of the apartment, “unsupported hunches of the police, and noises from within.” Hillat 267. United States v. Hill, 649 F.3d 258 (August 18, 2011),


Some of my colleagues think the blunt message in these cases is intended as much for the trial judges as it is for the federal prosecutors. The cases certainly have reinvigorated my appreciation for the Fourth Amendment, and boosted my morale. James Otis was a flawed dude (you can look it up),  but it’s way cool that he has made his way from colonial Boston to 21st century Richmond.

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