THE VALUE OF FAILURE

NASA famously has the motto "Failure is not an option". But before NASA put men on the moon, they failed and failed and failed, most tragically with the deaths of Astronauts Gus Grissom,  Ed White, and Roger Chaffee. And of course NASA lost two Shuttles and crews to explosions during the shuttle program. 

There is a basketball player who, in his long career missed over 9000 shots, lost over three hundred games, missed 26 game winning shots. In his own book he wrote “I’ve failed over and over and over.”

There are a couple of failed candidates I have always been interested in. One  political failure lost his first race at age 23 for the state legislature and then  lost his two runs  for the senate.

Another political failure I have followed couldn’t pass the physical at West Point,  dropped out of a two year business college, left a low paying bank job, ran his family farm into the ground, failed at mining, and  failed at an oil business. He went to war, where he did an adequate job, returned, opened a clothing store which failed and left him and his partner deep in debt.

Another failure was labeled as retarded (the current correct term is "Intellectually disabled")  when he was an infant. He didn’t speak until he was four or read until he was seven.

The above people I am referring to are Michael Jordan, Abraham Lincoln, Harry Truman, and Albert Einstein.

Henry Ford said "failure is simply the opportunity to begin again, this time more intelligently."

As a young prosecutor I lost my first two jury trials. And then won about 95 or so out of the next 100.

Failure has value.

This computer programmer’s first project was : “Traf-O-Data”- it was a machine designed to read traffic data real time and created reports for traffic engineers. The machine didn’t work at the  demo for the County he and his partner were trying to sell it to.

His next presentation to investors was for a company called…..Microsoft. Bill Gates and Paul Allen did a bit better on their second professional presentation.

Sir John Dyson is worth 3 billion dollars for the vacuum he invented When he made his 15^th prototype of the vaccum, his third child was born. By prototype 2,627, he and his wife had to empty a change jar to buy food at the end of the month. By prototype 3,727 his wife had an extra job giving art lessons. But by prototype 5,127- which took him 15 years to reach, he had invented cyclonic vaccuming, which is why his vaccums don’t need bags: “These were tough times, but each failure brought me closer to solving the problem.’”

Thomas Edison said “I haven’t failed. I’ve just discovered ten thousand ways which won’t work.”

I once heard a college basketball coach say that he was quitting because while he won many games he couldn't remember, he remembered each loss in vivid detail.

When I fail, people go to jail. When I represent people charged with murder facing the death penalty and I fail, my client is executed (thankfully that has never happened and won't as long as I keep on top of my game.) 

 Steve Jobs was kicked out of Apple for the computer LISA that he developed that was a massive flop.

When he returned he  oversaw the introduction of the Ipod, Ipad, Iphone, and made this an "I" society.

I identify with the college coach. I will often run into a judge or prosecutor and they will reminisce about a case we tried where I won. Many times the details are fuzzy. But I know the name of every client whose trial I lost when I walk in to that courtroom in the Miami Criminal Courthouse (which we call the Richard E Gerstein Justice Building or REGJB). It's like a reoccurring nightmare that never goes away. I even remember the worst loss I had as a prosecutor. A DUI serious injury case. Judge Murphy is in the courtroom on the second floor now. It happened around 1989 and it still makes me sick. 

However, failure is the most valuable lesson for me. When I fail, I try and examine everything I did, so I do not repeat the same mistake twice. 

But when I fail, when the clerk says the word "guilty" without the word "not" in front of it, and my stomach sinks, and that horrible feeling floods every cell of my body, I try and take solace in two measures of wisdom. I read Theodore Roosevelt's "Citizenship in the Republic" which is now better known as the "The Man In the Arena" speech, which I have highlighted with a link. It is worth a read. 

And I remember this: 

The measure of a person is not how many times they are knocked down; the measure of a person is how many times they get back up.

PLR. 

PRAYER IN COURT

I was in Dallas Federal Court Friday morning representing a client. We were on the 9:00 am docket, so there were several attorneys and clients in court waiting for the judge. When the Judge arrived and was announced and we all stood, his courtroom deputy then said "please bow your heads for a prayer." Everyone stopped and then she said "May G-d save this honorable court and the United States Of America." The judge then wished everyone a good morning and began his calendar. It took less than ten seconds.

I was surprised.

I cannot recall any other court I have been in starting with a prayer.

The late Henry Oppenborn, a wonderful county court Judge in Miami and former paratrooper who fought in the Korean War, used to start court by inviting everyone to stand and face the flag and say the pledge of allegiance. I always respected what the Judge did, because Judge Oppenborn's patriotism was clearly heartfelt. He was also a religious man, because I recall seeing a black smudge on his forehead on an Ash Wednesday. But he never brought prayer into his court.

Of course I have prayed in court. Quite often, actually. Usually during those interminable moments when the clerk is stumbling through the words preceding "Not Guilty" or "guilty".
I remember one memorable  and high profile case many years ago where the clerk froze, over-come by the emotions of the moment. She started reading the caption: "In the circuit court of..." then stumbled, then started again and then couldn't pronounce my client's name, which caused her to start at the top again. Meanwhile, my client and I were standing frozen, our hearts pounding, and I am sure I was praying to just get the clerk to make it through reading the verdict,  as his future hung in the balance. Mercifully, the judge interrupted the clerk, announced that my client had been found not guilty, and then was wise enough to recall that the law in Florida requires the clerk to publish the verdict, and asked her to give it another try. Freed of the pressure, she breezed through it, while my client quietly sobbed and hugged his wife.

And of course I have often recited the (Alan) Shephard's prayer, made famous by Alan Shephard, the first American in space, who was over heard saying "Oh Lord don't let me screw up" just before blastoff. (He probably was a bit more crude, using the F word, which is understandable given the circumstances. Considering there are now microphones in every courtroom, I stick with "don't let me screw up" usually before a trial or important motion begins.)

There have been a few pompous judges (not in Miami) that have started their court with their bailiff bellowing the "Oyez Oyez!" phrase and then the full liturgy than ends with "G-d save this honorable court and the United States Of America." Those are usually courtrooms where I resort to prayer, because that type of pomposity doesn't bode well for defendants in criminal cases.

But what happened in Dallas was nice. It was short, to the point, and a brief reminder to thank our creator for the wonderful country we live in, with a court system that strives to do justice- although I will save my criticism of the federal criminal justice system for another post.

Apropos of nothing, I also learned on this trip that the TSA takes a very dim view of toothpaste. My bag was stopped and searched on both ends of the trip, and I was admonished twice about carrying a tube of toothpaste on to the plane. When I inquired if the toothbrush was allowed, I was told it was. I recalled the many homemade shanks I have seen in jails carved from ends of toothbrushes.

Does the ADA know about this? What do dentists do when they travel? I have no idea.

All in all, it was a successful trip. My client and I were treated very well in Dallas, and I will be flossing extra hard this weekend.

PLR.

SENTENCING PART III

There are two moments in a defense attorney's career when they are absolutely helpless: after finishing closing argument and placing the case in the hands of the jury, and after making your final pitch to the judge during sentencing. One doesn't necessarily follows the other, which makes the sentencing hearing even crueler. 

In preparing for sentencing, one must always consider the posture of the case. Is it time for acceptance and an apology, or is there a vigorous appeal planned?  Can the attorney and the client walk the narrow line between both and embrace both seemingly opposite concepts? 

In the sentencing that I wrote about in an earlier blog post and concluded this month, we were so flabbergasted by the verdict based on what my client and I considered a complete paucity of evidence and  exculpatory testimony from multiple cooperating government witnesses, an apology and acts of contriteness seemed to me to be downright hypocritical. This was a case that was going to be and is being vigorously challenged on appeal. 

After going through the distasteful legal calculus of the federal sentencing guidelines, it came down to my client's allocution (his statement to the judge) and then mine. I necessarily went last so that I could clean up any errors or misstatements my client made (but he did fine). 

When the judge- a fine and fair trial judge- asked me for my recommendation on sentencing, how could I impress upon him that no sentence (in my opinion) was fair? 

Dr Atul  Gawande, MD., is a Harvard educated physician who brings a philosopher's inquisitiveness to medicine and life. In his wonderful book "Complications, a Surgeon's Notes On an Incomplete Science" he tackles the topic of intuition. 

What is intuition? Is there a scientific explanation for that feeling we all get, that often turns out to be true?  How many times have we said "I have a bad feeling about this" just before disaster strikes? 

As trial or even a simple court hearing unfolds,  decisions made by the participants take the case from fork in the road to fork in the road until, despite our best efforts as defense attorneys to control events and prepare for everything, we are confronted with something unexpected. 

It helps at this moment to have a feeling about what will work. Intuition. 

Dr. Gawande's writes: 
"It's because intuition succeeds that we don't know what to do with it. Such successes are not quite the result of logical thinking but they are not the result of mere luck either."

I reached that fork in the road when the sentencing judge asked me for my recommendation as to a sentence. I had made all the legal arguments. I had succeeded in knocking out much of the prosecution's unseemly request for a prison sentence two to three  times what was anticipated if he had pled guilty prior to trial.  (I will address the "trial tax" and how we punish people for going to trial in a subsequent post.) 

I tried to read the judge, but despite his earnest look, I couldn't tell much. I can do this with some effectiveness at a poker table and with witnesses and opposing counsel in trial, but this judge was just looking at me, clearly interested in what I had to say. 

 I decided not to grovel. The guidelines had been reduced, and my client needed an advocate that was unbroken in his belief that his client was innocent and that the fight would go on: 
"I can't give you a recommendation judge, based on this evidence" I said.  My client had voluntarily walked away from his employment where the crime took place after six uneasy months, and years before the FBI ever opened an investigation. 
"How do you sentence a man who walked away from the crime and didn't profit from it and made prompt restitution- years before the criminal case was brought-  when alerted to the fraud? How do you sentence a man that the government's own witnesses said they hid their crimes from? That's why they gave you the lifetime appointment your honor. Beyond advocating for the lowest end of the guidelines, I cannot bring myself to ever say my client deserves to be incarcerated." 

The Judge sentenced my client to the lowest end of the reduced guidelines, and now we are concentrating on the appeal. 

Unlike our (perhaps unrealistic) view of medicine, criminal law is often very intuitive. It is an amalgamation of human nature and legal statutes, and a defense attorney often is reduced to giving the client advice on how those two intersect: "I know you panicked, but that second shot really hurts our self defense claim once the assailant was down."

I have an optimistic view of my clients. I have rarely met one I did not like or could not find common ground with. But when a defendant in a white-collar case gets sentenced to prison, a defendant who like me is a professional and has a family depending upon him, the blow of a prison sentence is an unusually hard one to weather.  

Unlike the clinical training of doctors that teaches them to separate themselves from a patient's suffering or fears so they can operate or treat the condition, lawyers have no such training. We see lives ruined everyday for nothing more than bad decisions that have turned tragic.  

My client was sentenced. His mother and sister cried. I felt awful. He did fine and we all walked out of court to fight another day on the appeal.

I spoke in my initial post on sentencing about the pain of losing. About how all the wins blend in, but that I can acutely recall the smallest details of each loss. And how I carry those losses, some decades old, to this day. My client this month joins that unenviable list of clients for whom I could not derail the mammoth train bearing down on him called The United States Of America. It's a daunting task. 

But the fight is worth it, and I try and remind myself that the measure of a man is not how many times he is knocked down, but how many times he gets back up. 

PLR. 

MY BIG RED TRUCK

Most of my colleagues drive  Porsches, Mercedes, Lexus or similar luxury automobiles. Somehow there arose a tendency to judge a lawyer by the car she or he drives . I think it started in the early 1980’s when the proliferation of drug cases brought with it an infusion of cash, which in turn not only built a good part of Brickell Avenue, but resulted in Miami getting a hit TV show (Miami Vice) and lawyers walking around with ten and twenty thousand dollar  (or more) gold Rolexes on their wrists. Once the watch was on, and the new suits and shoes and fancy briefcases were purchased, the next item a lawyer needed to announce their  success was the Porsche or Mercedes.  People would naturally think “Wow- that lawyer must be successful, they drive a Mercedes” as if the price of a car related to the skill of the lawyer.  Of course the price of a car has as much to do with an attorney’s trial skills as does their suit or watch.  But one thing I have learned is that first impressions matter. 

Which brings me to my big red truck. It was 2005 when I was about to have my first son and my prior car was coming off a lease. And yes for the record, it was a Mercedes Convertible.  I never said I was less shallow than my colleagues driving Porsches and wearing Rolexes,  just more reflective about what this all means.

I had  (reluctantly) turned my Mercedes in,  and was driving around with my very pregnant wife and feeling a bit uneasy about the future. What I knew for sure is that while I felt as prepared for fatherhood as any new father could feel, I was not prepared to drive a Mini-van. As we drove from dealership to dealership and I was feeling worse and worse. Then we drove by a Nissan Dealership and there in the window was a Big Red Truck. I shouted for my wife to stop and pointed and she replied as you might expect: “Are you crazy?”

But my retort took the day: “We are having a boy and what little boy doesn’t want a big red truck?, and I became the proud owner of a big red Nissan Titan pickup truck. If only the guys on the docks in Sheepshead Bay, Brooklyn where I worked on fishing boats could see me now!

I enjoyed my Big Red Truck for many years and eventually came to enjoy life without a car payment. Then in 2011 I unexpectedly and suddenly lost vision in my right eye due to a detached retina. Suddenly I was faced with the prospect of not being able to practice the profession I had trained my whole adult life for.

There is a carefully orchestrated ballet when I am at the podium cross examining a witness. One eye is on the witness, one is on the questions I have prepared, one is on the impeachment material I have ready if the witness doesn’t give an answer I want or expect, and one is on the jury to see how they are reacting to the cross examination. So that is at least four eyes, and I am now down to one.

The result of my disability is that I am a markedly different lawyer today then I was five years ago, but not necessarily a worse lawyer. I have to prepare even more now for court, considering whether a particular portion of the evidence code will become an issue or whether a statute will need to be examined or argued. Thankfully in this day of electronic media, any text can be printed out to any size that I need to make it readable for me.  And because I cannot move as quickly visually as I once did, the timing and rhythm of the cross examination is much slower, as I spend more time finding my place in my notes as my eye moves back and forth between the witness and the jury and the dozen or so other things I am trying to keep track of. The slower pace means I have more time to consider the witness’s answer and formulate a question designed to break down their story. I am less reliant on my notes, and more reliant on whatever innate talent I may possess for these encounters. And I am happy to report that  I have been on a pretty good winning streak overall since I lost my eyesight.

I must report, however,  that my truck is much worse for the wear, especially on the right side and the front. One side affect of having one eye is that I cannot judge distances very accurately, so the front of my truck is missing a bumper, a victim to one of multiple times I hit the cement wall in the parking garage at work as I pulled into the space. And that nasty looking enormous scratch on the right side (my blind side) of the truck is due to me misjudging the distance between my truck and another truck which had some sort of truck-scaring metal poles sticking out from the side.  At this point, it is just not worth it to keep fixing a truck that I am going to continue to dent.

For those of you thinking about whether I should be driving at all, relax. I have the requisite extra side view mirror that the law requires, and the advent of the Uber App in Miami (the greatest car  service in the world) means that I am able to go anywhere at night and get a ride whenever I need it.

I am struggling to find the lesson here.

Nice things are nice to have. And clients expect their lawyers to dress nicely, and drive nice cars. That is just the way of the world. But the loss of my eyesight in one eye puts the fancy car and accoutrements of success in perspective, because the most important things in life- the smile of your child- the love of your family- the devastating cross examination- money cannot buy.

So I would like to end this blog post by taking a stand against materialism, and saying I will be that one successful lawyer that doesn’t care what he drives and has clients who hire him in spite of his run-down truck. I fantasize about  my beat up Big Red Truck entering into the lore of my practice. “He won this amazing case and then drove away in a truck I wouldn’t be caught dead in. You have to hire him, just don’t let him drive you anywhere” I imagine one client telling another as CNN And  CourtTV do profiles on the brilliant trial lawyer with this quirky habit the public finds endearing.

Yes, that’s how I want to end this blog post. But I can’t.

I couldn’t make this up if I tried.

You see, I am writing  this blog post from the Starbucks on US 1 in South Miami waiting for AAA to arrive because shortly after I pulled into the parking lot my nine-year old Nissan Titan began to shake uncontrollably and then died.

So in the next few weeks, if you want a ride in my new Infinity- chosen because it has the most advanced collision avoidance system I could find, just ask.

PLR. 

ORAL ARGUMENT PART TWO

Before I was a lawyer, I was a commercial fisherman.  Simple days of hard labour and working from 4 am  to 6 pm  and going to sleep before 9 pm and then starting the cycle all over again, conditioned me to being an early riser. In seven years of college and law school I cannot recall pulling one all-nighter. But I often would get up at 3 or 4 am to prepare for the day. Thus it was no surprise to me when my eyes opened at a few minutes after 4 am, about an hour before my alarm was set to go off. 

I ordered coffee and fruit and took a shower while listening to the Springsteen channel on Sirius. My brief and notes, and notes about my notes, were laid out on the table in the room.  I reviewed my preparation from yesterday; each brief was placed in its own folder and each case that could be discussed was in its own folder. There were typed notes about the case inside the folder, and then a shorter version of notes handwritten on the outside of the folder.  I make sure my watch and the digital time on my  I-Phone are perfectly synced, as time- you will shortly see- plays an important role in my success, or at least I'd like to think it does. 

Now I had the big decision to make- my suit and tie. I had brought with me three shirts, and two suits and three ties. Why? Simple. Here was the scenario I imagined: the valet would lose one suit and shirt and tie and I would be down to one suit and two shirts and two ties. Then, while dressing, I would spill coffee on a shirt and tie, which would leave me with exactly what I needed- one suit, one shirt and one tie. It's difficult living with the remnants of obsessive-compulsive disorder. Of course the valet didn't lose anything and I didn't spill anything, and soon I was off to court, carefully making sure that I stepped out of my room with my left foot first, and that the time was not an odd number- 6:58 is a perfect time (see my last post on OA and why I like the number 58).  

I was first up on the calendar, which started at 9 am. The clerk had instructed me to report by 8:30, so after a careful examination of traffic patterns and with due consideration to the probability of a half-a-dozen cement trucks spontaneously rolling over in front of me as I drove the approximately ten blocks from the hotel to the courthouse parking, I left at 7 am and arrived by 7:15, parked, sat in my truck, and pulled out my briefs and notes and started all over again. 

By 8 am, having accounted for the possibility of a toxic-sludge spill while walking from the garage to court, I am in the courthouse, left foot crossing the threshold first of course, and the time being an acceptable even number.  I check in and then sit on the small bench outside the courtroom. The attorney lounge soon fills up, but I avoid it, not wanting to listen to the nervous banter of lawyers recounting former victories. 

At 8:45 I walk into the courtroom and place my brief case on the table and remove my carefully labeled folders. I have neglected up to this point recounting the two dozen times during my drive and then my walk to the courthouse that I stopped, opened my briefcase, and frantically reviewed my files to assure myself that I didn't leave my notes, or my brief in the hotel. OCD means looking once is never enough. 

The government lawyers walk in and sit down. By coincidence the lead counsel's  first name is Philip and  walk over and shake his hand and  recount my favorite story where as a prosecutor I handled a case against a Father-Son team (Phillip Carlton Sr and Phillip Carlton Jr) where all the attorneys were named Phil. 

I walk back to my table and I can't help staring at the large digital clock set to count down starting at ten minutes. Ten minutes! I cannot get the time out of my head. How will I fill the time? I can talk, uninterrupted for seven minutes, eight if I slow down and heed my "pause"  instructions written into my notes. I envision three stern judges sitting like Marcel Marceau, utterly silent, while I prattle on about error and evidence and prejudice before slinking back to my seat. 

 I already know who is on the panel.  A legendary former chief judge of the court, appointed by President Nixon, will preside. To his right and my left, will be a recent female Obama appointee. To his left will be a visiting judge from the conservative sixth circuit. I know I could be in for a hard time. Two brilliant and experienced  conservative judges shooting a defense-attorney-fish-in-a-barrel; what could be a better way to start off a day of oral argument? 

What I didn't know at that moment was where the artillery shells would be fired from. 

The court comes in and we all stand and after telling us to sit, the former chief judge announces that he will make a short statement. I had considered that there might be something said about 9/11,  but all he does is introduce the visiting judge and thank him for helping out on these cases. 

I approach the podium and quickly put the thought that I haven't turned my cell phone off out of mind. OCD is a friend that never abandons you. If it rings, it rings. Thankfully, it doesn't ring. 

I start my presentation, and predictably, I stray from my written comments and just start speaking contemporaneously about the case. I knew I would do this, and I am not the least bit concerned. All my notes and preparation were not done so I could use them in court. I know that I will barely glance at them. All that work is how I absorb the material. I firmly believe that I am a better advocate speaking from memory, attempting to gain and maintain eye contact with each of the judges. 

The first question comes literally from my left and figuratively from the right- the new Obama appointee to the court. 
"Counsel, isn't there overwhelming evidence of guilt here?" 

I am prepared for the question, but not the interlocutor.  Her question is followed by a half a dozen other questions, all in the same vein: The government committed error but the evidence in the trial makes the error harmless. 

I have my prepared responses. "This court has said that this type of error invades the providence of the jury. Such error can never be harmless." I follow this response with a recitation of the facts showing that this trial was far from an easy case, and that but for these errors, the verdict would have been different. 

I raise the technical evidentiary error, and again I get a question again from my right: "Couldn't the trial counsel have mitigated the effects of the error when he questioned your client?"

"The defendant should never be put into a position of having to testify to cure errors caused by the prosecution." I respond. It was one of my I-Phone recorded answers that I had (hopefully) perfected, with the right amount of gravitas and indignation calmly delivered. 

The Judge waves off my response: "I understand that counsel. But just focusing on your client's testimony, if his lawyer had done a better job questioning him, the errors could have been mitigated, correct?"

This was not a question I was expecting, but I had the answer as soon as the Judge started talking. Now it was all about how I delivered it. I took a breath, gave the judge a small smile and responded: "I will concede this- if the defense had done a better job then I wouldn't be here this morning. But more importantly, if the government had not committed the misconduct that they now admit to, I also wouldn't have to be here this morning."

The judge smiles at me, and as I glance at the digital timer, there are twenty-one  seconds left.  My favorite number! (Roberto Clemente wore 21 his entire career playing for my beloved Pittsburgh Pirates).  This is a great omen and I decide to leave on what I consider a high-note. "If there aren't any more questions, I will sit down." The Judges all nod and I walk back to my seat. 

I didn't drop any files. My I-phone didn't ring, and the judges didn't ask me how Pennoyer v. Neff controlled their decision in this case. 

Many years ago an appellate lawyer named John Lipinski told me that as he walked out of a courthouse after an oral argument, he would stop on each step, take a breath, and let the argument go. It is good advice. As Lady Macbeth said: "What's done is done",  not that the image of a mad woman stumbling around with unseen blood on her hands is what I want to think about at this particular moment.

The great debate among appellate lawyers is how much oral argument matters? My answer, even after talking to friends over a beer who have been appointed to appellate courts, is that I have no idea. My suspicion is that it is hard to win the normal case in OA, but easy to lose. My hope is that if the judges go back to the briefs and review the carefully constructed written arguments,  the correct answer will emerge. 

Of course that hope is submerged beneath all the possible disasters that I can and do imagine- that I will not receive the opinion reversing the conviction;  that on the day before going to court for the new trial an earthquake will strike my office alone and I will lose my file; that the "cloud" containing a digital copy of my file will succumb to the latest computer virus :"Get Phil's stuff" and that simultaneously my cats will eat the three separate thumb drives that back up my cloud files that I have strategically hidden around my house. 

Oral argument may end, but OCD is a friend for life. 

PLR. 

BAN ADRIAN PETERSON- A PERSONAL PERSPECTIVE

I am by any measure a large individual, yoga and my recent conversion to becoming a vegan notwithstanding.  Clients have told me that they felt when they hired me that  I would walk into court and intimidate the prosecutor or even the judge. 

But I was not always the big and intimidating lawyer. 

I was once that four year old boy being frightened to death by his father. 

I was once scared, fearful for my life, confused as to why this man who I vaguely thought was supposed to love and protect me was hurting me and threatening me.  I spent a large part of my childhood fretting that he might kill me. 

Imagine if, like the Ray Rice incident, we had a video of Adrian Peterson stuffing leaves into the mouth of his four year old son. Imagine if we could see the terror in that little boy's eyes as "the switch" (and I am by no means convinced that other weapons weren't used)  peeled his skin from his body. 

It might be hard for some of you to imagine this. I can close my eyes and be instantly transported back to those feelings of pain and terror.  And that is what no one who has never experienced this kind of terror will ever understand- the beating lasted minutes, but the memory lasts a lifetime. The lasting affects of being an abused child are so deep and varied, that the only thing we can say for sure is that while the physical scars will heal, the emotional scars will not. 

Yes, I understand Adrian Peterson was beaten as a child. And I feel for the child he was, but I despise the man he is. He has the money and ability to get help for what happened to him to make sure he didn't continue the legacy of abuse and violence. But he did nothing about it. 

Let me provide one instance of how these scars never heal:

About twenty five years ago, as a young prosecutor, I was sitting in the hallway of the courthouse. I saw a young African-American woman, totally overwhelmed by the drama of what was happening to her or someone she knew in court, slap her young boy on the face- stopping him from running  around the hallways with his little red truck, laughing and playing. The boy stood in stunned silence. Then she slapped him again. I was transfixed with terror. Stuck in my chair, literally frozen. My muscles could not move. I needed to rescue that child, and I could not move. She raised her hand a third time and a lawyer named Vince McGhee - who since has tragically passed away- grabbed her hand. Vince was also African American. He was always a bit larger than life. He was a great advocate.  He was always well dressed and gave off the air of the confident, successful lawyer and man that he was. 

Vince introduced himself. He handed the woman his card and asked her if he could take her son downstairs for a snack at the cafeteria. The woman nodded numbly. Vince then bent down until he was at eye level with the little boy and he wiped away his tears. He said something to the boy and the boy nodded and then he picked him up, and the boy automatically put his arms around Vince and buried his head into Vince's neck. Vince walked away with the boy, leaving his briefcase as some sort of collateral with the woman. 

At some point my muscles relaxed and I could move again and I realized I had been crying uncontrollably. The woman was staring at me. I stood up on shaky legs and walked away. 

When a parent beats a child, so many disastrous things occur. The child learns that the world is not a safe place and that the child can trust no one, not even the person she or he loves the most. How does that lesson translate into the adult the child will become? Will that adult form warm and loving relationships or spent his or her life distrustful of everyone? And most importantly, when that child becomes an adult and has a child of their own, what will they do when they "lose it" as we all do? 

I am happy to report that my children have never known terror. They do not fear their parents. They do complain when there is not enough ice in their beverage or the pasta is slightly overcooked, or the movie doesn't start exactly on time or doesn't live up to their expectations. Maybe they are a bit spoiled, and that is just fine with me. They know they have parents who will always protect them, never hurt them, and that the world can be a wonderful place to explore. 

I am not sure how or why I was able to break the cycle of violence. My own explanation is that my terror was so deep that I could not ever bring myself to experience it again in any form. 

I am a criminal defense attorney by profession and perhaps by nature. I protect people from the government. I have defended the worst of the worst- people who have killed in cold blood for profit. I have defended the slickest grifters who have stole millions and wrecked havoc on families and companies. I have also defended a lot of good people who either made one bad choice or found themselves in situations they couldn't control. 

I have won awards for my defense of clients and I am proud that my name often surfaces as a lawyer who can help people.

But I am haunted by the day I could not defend that little boy. 

Stop cheering for Adrian Peterson the NFL superstar, and recognize him for what he is- a troubled man who abuses little children.  

PLR. 

ORAL ARGUMENT

I had oral argument Thursday in the Eleventh Circuit Court of Appeals.
I remember when the notice of argument arrived: OA was set for Thursday, September 11, 2014. 
"Oh, great" I thought. "9/11. Is this an omen?"   Not that I am superstitious about numbers. I am not, notwithstanding that my Florida Lottery Ticket is always 8 (Willie Stargell) 12 (Terry Bradshaw) 21 (Roberto Clemente) 32 (Franco Harris) 58 (Jack Lambert), and then I throw in a different number for each ticket. Or that when I pump gas I usually try to get the pump to stop on 32 (see above). 

No, not superstitious,  I just like the Steelers and the Pirates. If I stop writing this blog and disappear, thank the Pirates and Steelers of the 1970's. 

On the day before the argument, I took a small suite at the Four Seasons on Brickell Avenue in downtown Miami to set up my final war room and get my final prep in. You can't beat their $299.00 Florida resident rate for a suite. Best deal in town. 

The bell-guys brought 6 boxes of briefs, trial transcripts, files, research, notes, and my printer up to my room. I carried up my laptop, even though I am "on the cloud" these days. Much like my aging red pickup truck, which did get strange looks among the Porsches and Escaldes when I drove up, my old Apple Mac Laptop with the white plastic case is not something I am prepared to part with anytime soon. 

My needs were simple: a fresh pot of coffee every hour or so, lunch at one, dinner at seven, and a wi-fi connection for my Sirius satellite radio so I could stay on top of the Steelers prepping for the Ravens game on the evening after my OA:  spoiler alert: I did better than the Steelers did Thursday night. 

Here's the thing about prepping for OA: do you spend your time pulling the cases in the footnotes in the other side's brief? That law school fear of standing there when three judges ask you "How does the Smith case affect your argument counsel?" while you blank on the case and frantically leaf through your notes before dropping them all on the floor - that fear never goes away even though I am 28 years out of law school and no appellate judge has ever done that to me. 

But the fear won't go away, so I spend two hours printing every case cited, putting each one in a separate folder, writing the pertinent parts of the case on the front of each folder, and creating a matrix showing where each case is cited in each brief relating to each point on appeal. There. Two hours wasted. 22 hours until the 9 AM OA the next day.

Now I read my brief again. Thankfully I don't spot any typos. Then I read the government's brief and get angry all over again. "How can they write that crap?" In my case the government surprisingly admitted misconduct by one of it's attorneys. This argument could  be all  about whether the misconduct requires a new trial or is harmless error. Or will the judges be concerned with the two technical evidentiary issues I raised independent of the misconduct? It's so hard to tell. I would pay half my fee to just get a glimpse of their bench briefs. 

Noon: 21 hours to OA. Time to look at a room service menu. Changes channels on Sirius to the Springsteen Channel. A little "Born to Run" can never hurt. 

Lunch comes and I tackle the next problem: There are a half dozen federal rules of evidence to get down. Will the judges refer to them by name? "Counsel, the government says the tapes are adoptive admissions, do you agree?" That I can handle. But the old law school fear returns. "Counsel, the government says 801(d)(2)(A) governs the admission of evidence here. Are they correct?"

Back to preparing another matrix. Two more hours later I have a new chart. I can glance at a number and get a name, along with the points on appeal they apply to, or I can glance at a name and get a number. 

The Four Seasons has a superb gym. Steam, Sauna, and I won't even allow myself to peruse the massage menu. The pool has a great bar area, with a wonderful view facing east over Biscayne Bay and Miami Beach.  I ponder the gym issue while Springsteen sings "Dancing In the Dark" during a taped concert in Sydney, Australia. This is what I feel like am doing trying to figure out what will happen tomorrow- Dancing In the Dark. I make my biggest decision of the day: No gym. No massage. No sauna. But an Iced Tea at the pool bar and the hummus and pita chips sounds like a nice break. I take my reply brief to make myself feel better. At the last minute I grab my Kindle, because I know I won't read the reply brief. It's 4pm, 17 hours to OA. 

There is so much on the line here. The client is a business man. He has a family. He was sentenced to prison. The evidence was weak, and the government committed misconduct. Like almost every appeal I write, I came away from reading the trial transcript with the feeling that if I was trial counsel he would have been acquitted. 

But that is the occupational hazard of being a criminal defense attorney. I think I can win every case.  Think Alex Baldwin  as the surgeon in Malice:  "You think I have a g-d complex? Let me tell you something, when I am in the operating room, I am g-d." 

Confidence is good. Hubris is not. And fear is what drives me. Fear of failure. Fear for my client. And to be honest, fear of making an ass of myself. So I plug on. I read more cases, read the briefs again, and start making a list of questions the judges could ask and then answering them out loud while recording my answers on my I-Phone so I can listen to how they sound. This is OA prep in 2014. 

Night comes, and now I face the final decision of the day- when to quit? Work till midnight, or get a good night's sleep and get up at 4  am for final prep?  When I was in high-school I began working on the fishing boats in Sheepshead Bay, Brooklyn. Up at 4, at the boat at five, home 13 hours later, asleep by 8. I am a morning person, so  I call it a night early, and set my alarm for 4 am, knowing I will be up five minutes before it goes off.

OA Part II: 4 am to walking out of the courthouse. 

PLR. 

SENTENCING : PART TWO

Many people have asked what happened at the sentencing last Friday that I wrote about in my last blog post. Here is an update, but first a quick rant:

STRAWS: Unless you are three years old, straws are superfluous, outdated, ecologically unsound, and if you see where this is going, they bug me.  The waiter/waitress comes by, leaves a glass of water, and leaves a straw.  And if they don't have a straw, they come running back with one, as if you're going to expire of dehydration without it. As if at my age  they are not really sure I can drink a glass of water without spilling it. We don't need the plastic. We don't need the paper they are housed in. And most of us are old enough to pick up the glass and take a drink on our own. Enough with the straws already. Give the kid a sippy cup and when s/he masters that give them a cup or glass.

SENTENCING PART TWO: 

In the world of criminal defense, any day you walk out of court with your client is a good day. My client and I walked out of court last Friday, but that is not to say it is over. It is not.  The Federal Judge handling the case is employing  his normal careful, methodical approach to the issues before him, and we just didn't finish as we approached 5PM on a holiday weekend. The sentencing will resume on Friday September 12. 2014.

As we sat down at counsel table and waited for the judge, the tension in the room was thick. The seats behind us were filled with friends and family. My client's sister had flown in from Chicago. Over on the other side of the courtroom, FBI and IRS agents filled the rows behind the prosecution team.  We all got along well in a long and difficult trial, and although I was happy to acknowledge the agents and prosecutors, I was acutely aware that they were trying to put my client in prison for at least a decade. I was also aware that while we as professionals could separate our professional conflicts from personal niceties, my client was watching, as were his friends and family. It would appear unseemly if I was too jovial with the other side. So I acknowledged them and gave them a quick handshake, and that was  that until the Judge arrived.

Many Federal Judges here in South Florida reserve Fridays for change of pleas and sentencing. They must hate Fridays. Not many pleasant things occur when a defendant pleads guilty or when a defendant is sentenced. There was one point, with another defendant in the case who was being sentenced at the same time, when the Judge made a bit of a smart remark. It was a humorous reference to the fact that we wouldn't be here if the defense had worked. All the lawyers at the table laughed. Lawyers probably feel they have to laugh if a judge makes a joke. All the defendants remained stonily silent, as did I. I understood the Judge was not being disrespectful, he was just trying to defuse a tense situation, albeit awkwardly in retrospect.

What occurred last Friday was nothing more than a short reprieve, although the issues that slowed us down are issues that could greatly benefit my client if the judge rules in our favor.

I try to learn something in every case and in every hearing. Although I cannot say at this moment how much I have learned so far, my experiences in this sentencing reinforce what I already knew: these are difficult moments that require lawyers who can set aside their personal feelings for their client and who can ignore those moments of swelling, crippling fear when it appears things are going wrong and a big sentence is about to be proclaimed. No lawyer likes to contemplate a sentencing hearing. As I wrote previously, it means we lost. And yet, hopefully, sometimes you can lose a battle and win a war.

I guess this means there will be a Sentencing Part Three.

PLR

SENTENCING A PERSONAL PERSPECTIVE

Tomorrow my client and I will appear before a federal judge for sentencing. 
Of course that is wrong. My client will appear for sentencing and I will be there with him, defending him to the best of my ability every step of the way. 

My client and I have spent a lot of time together. Well over  300 hours in court, as well as hundreds of hours preparing the case for trial. I can recognize his hand writing at a glance, as it was a case involving records he prepared. I can easily decipher his shorthand notes, a skill I obtained while working with him in preparation for trial, and a skill that gave us a small but distinctive edge over the FBI agents that were tasked with deciphering the records. Unfortunately, while my client was acquitted of some conduct, it wasn't enough. 

So Friday will be the first time that his future and fate goes completely out of my hands and into the hands of someone else- the judge. The judge is a good judge, with an excellent reputation for being fair and hard working, and from what I've seen, the reputation is well earned. 

But I feel like I will be sentenced as well, as I lost the case. Earlier this week when we met, my client apologized for being late, as he had to drop his son off at school. I winced. Is this the last week he will be able to do that? I've never met his son, not wanting to get too close to my client and allow my feelings to affect my ability to think clearly in court during tough moments. 

And yet, like myself, my client is a professional. He has a degree. Dresses well, drives a better car than I do (more on my beat up old red pickup truck some day when I feel like explaining why I won't get rid of it). He has a family and a life and now all of that is more than in jeopardy. All of that will change Friday, whether or not the sentence is lenient, whether or not I am successful in keeping my client out during appeal, and whether or not we are successful on appeal. Tomorrow my client gets a prison sentence and his life will be inexorably altered. While he made poor decisions that brought him to the point of being arrested and indicted (the phrase "when you sleep with dogs you get fleas" came up fairly often in our discussions), the fact remains with me that he entrusted me to explain his decisions and frame them in a non-criminal manner to the jury. And I failed.  It will make me wake up earlier to work longer on his appeal. It will make me read those obscure cases in different jurisdictions to see if I can discern some point on appeal that I can use to undue this damage that has been wrecked upon his life, but it will not ease the pain of my failure. 

So tomorrow my client will be sentenced, and whether or not the US Marshals ask him to put his hands behind his back and lead him away while I stand there powerless; and although  I will go home tomorrow no matter what, (I'm fairly certain, although there were a few dicey moments when I pushed the judge a little bit too far) I feel like I am being sentenced as well. 

I once heard a college basketball coach say that he quit coaching because while he only barely remembered all the wins, he could remember every agonizing detail of every loss. I feel that way about every case I have lost. And although I am fortunate that those loses have not been as frequent as the coach's, they stay with me. The murder case in Daytona Beach in 1997 (lessers). The tax fraud case in 2000. That DUI I lost after not losing a DUI trial in over a decade (I will never try a case with facial hair again.) Even that DUI injury case I lost as a prosecutor in 1988 still bothers me every time I walk in that courtroom in the Miami criminal courthouse. 

That will be my sentence tomorrow. 

CHANGE IS THE PRICE OF SURVIVAL

Gary Player is a world champion golfer. At the age of 29 he became the third golfer in the world to win all four major titles. He did it before Tiger Woods was born and he did it before Jack Nicklaus, the golfer who still holds the record for most major title wins (18).  Gary Player was lifting weights and exercising and studying nutrition in the 1960's, when the rule of thumb for golfers was that weights and exercise would damage a career, and nutrition was for nuts. That is why at over 80 years of age Gary Player looks and acts like he is in his 50's, and starts his day with a thousand sit-ups and a hundred push-ups. 

On Gary Player's website he has a page called his Ten Commandments. The commandments are gems of philosophy integral to his success. The two I like most are #2: Everything in business is negotiable except quality, and #1: Change is the price of survival. 

In Miami, criminal defense lawyers for decades made a good living specializing in DUI defense. The police had economic incentives (lots of overtime) to make arrests, and the consequences of a DUI conviction made defense and litigation a valuable legal service people were willing to pay for. 

And then a few years ago the Miami State Attorneys Office instituted a pre-trial diversion program for DUIs called Back On Track. We have the details of the BOT program on our website at Woodward and Reizenstein. 

All of the sudden 90% of the DUI clients disappeared as there was no longer an economic incentive for most clients to pay for a quality DUI defense when a reduction of the charges could be guaranteed by enrolling in BOT. 

We in the criminal defense bar in Miami all had fair warning it was coming, but many lawyers did nothing to prepare. They didn't change their practice area or develop another area of the law to specialize in and market themselves to clients. Many small criminal defense law firms that depended on DUIs closed. The firms failed because they ignored or didn't know Gary Player's first commandment: Change is the price of survival. 

There are so many ways in  recognizing that change is the price of survival that would make a positive difference in our own personal lives. The Internet and the way business is done is one drastic change. Just ask Blockbuster video (if you can find one that is open)  about Netflix and  whether change is the price of survival. 
How about diets and nutrition. Remember the low fat craze of the 1990's? We now know that there are healthy fats that our bodies need and that sugar and carbohydrates are the main cause of many diseases. 

That change is the price of survival goes to the very heart of the problem of people saying "but that's how we always did it."  We always listened to music on records. Until CDs. And we always bought albums on CDs until ITunes. And we always listened to music on regular-terestial  radio until satellite commercial free radio came along.  

History is littered with the failure of people and projects who never recognized that change is the price of survival. 

In my law practice, in my business life, and in my personal life, I challenge myself each day to look at how I do things  and whether I am missing the change that is the  necessary price to my survival and success. It's a worthwhile and thoughtful endeavor. It's one of the reasons I decided to write this blog, after the internet SEO gurus told me no one would ever find me, my firm, or my website on the internet unless I started doing things like writing a blog. In other words, I had to change. 

WHY WE LIE TO JURIES IN FLORIDA

Every day in the Richard E Gerstein Justice Building, which is the criminal courthouse in Miami, Judges, with the full agreement of both sides in a case, lie to jurors. 

This is the lie:  Florida standard jury instruction 3.10(5):

5. Your duty is to determine if the defendant has been proven guilty or not, in accord with the law. It is the judge's job to determine a proper sentence if the defendant is found guilty.

This is the truth: with dozens upon dozens of criminal statutes carrying minimum mandatory sentences, the Judge does NOT determine the proper sentence. The legislature already has done that, about twenty years ago in many cases. The judge, who sees the defendant, sees the unique circumstances of the case, has NO say in what the sentence is. If it is a drug trafficking case, the sentence for a twenty year old first offender could be as high as twenty five years. 

How could that be, you might ask? How could a first offender get mixed up in a drug case carrying a twenty five year sentence? 

When I was a prosecutor many years ago in the Dade County State Attorneys Office narcotics division, I was assigned to investigate a case where an undercover drug unit was buying a lot of heroin. Possession of heroin, over a certain amount, immediately becomes a drug trafficking charge. That's what drug trafficking in Florida is- nothing more than possession over a certain amount. You don't need to be selling the drug in a Ferrari, while wearing a Rolex. 

The drug deal went bad, the bad guys ran away, the cops chased them, and one of the bad guys threw a bag containing about 200 grams of heroin in an alley. Enter the homeless man in the alleyway who saw the whole thing unravel. grabbed the bag, and started to run. Eventually the cops chased him down and arrested him. The charge? Trafficking in Heroin. He had grabbed the bag, taken possession of it, and tried to run away. Smart? No.  A mistake worth twenty five years of his life? No.  (which makes me think that if he had been fully prosecuted and convicted, he would be getting out around now).

I reduced the charge. The unfortunate soul pled guilty to obstructing justice or tampering with evidence, served a few weeks and went on with his life. 

But let's say I wasn't a reasonable prosecutor. Let's say I was looking to burnish my trial stats and get an easy conviction on my record as I tried to make a name for myself. And let's say the case went to trial and I won (which I did close to a hundred times as a prosecutor). I- as a twenty seven year old prosecutor three years out of law school, had all the power. The trial judge (I forget exactly who it was)- hopefully a learned and experienced man or woman who could have recognized the extraordinary zealous abuse of power by the prosecution, was and is completely powerless to do anything about the case or the sentence. 

The legislature has made many sentences mandatory and given the prosecutor- many times the least experienced lawyer in a case- total power about seeking or waiving a minimum mandatory. 

Which goes back to judges lying to juries. Going back to my example, if I had forced the case to trial, the judge would have been required to read to the jury the jury instruction above. One could imagine the jurors in the jury room carefully reviewing the instructions. Seeing that the prosecution had technically proved drug trafficking (simple possession of the drug over a certain amount) one could imagine the jurors saying something like "well even if we convict him, the judge will surely realize this is an unusual case and give him a fair sentence. He's not a real drug trafficker, even though he did possess the heroin." 

If the jurors in that case would have convicted the homeless man, he would have served a quarter century in a Florida prison, assuming he survived. 

I am attaching a motion I am now filing in these cases for my clients. I invite any lawyer to email me and I will send you a clean copy to use for your client who may be caught in this horrible and unfair situation. Philip@miamicriminallaw.net, 

It's time Florida took the unfettered power and discretion away from twenty five year old prosecutors and gave the power of sentencing back to Judges- the people we depend upon to make our justice system work fairly. 

Motion jury instructions and Minimum Mandatory from Phil Reizenstein