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.
Saturday, September 27, 2014
Thursday, September 18, 2014
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.
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.
Friday, September 12, 2014
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.
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.
Thursday, September 4, 2014
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
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
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