IT FEELS GOOD TO WIN

Some of my work involves representing indigent defendants for the Office of Criminal Conflict and Civil Regional Counsel for the 3rd Region of Florida. I am privileged and honored to have this position for this remarkable agency run by Gene Zenobi, a great lawyer and a great man.

 Many people charged with a very serious crime do not have the funds necessary to hire a private defense attorney. My work for the State of Florida allows me to handle those serious cases.

While I am primarily known as a trial lawyer, I have for at least the last decade handled criminal appeals as well. As I tell lawyers that I work with, doing an appeal makes you a better trial lawyer, and doing a trial makes you a better appellate lawyer.

In the last few years the United States Supreme Court has admirably moved the needle in the area of juvenile sentencing. In a landmark case in 2010 - Graham v. Florida - the court held  that juveniles convicted of non-homicide offenses cannot be sentenced to life in prison. The Florida Supreme Court followed the reasoning of Graham in 2015 in Henry v. State.

After the decision in Graham, some Florida judges engaged in the sad practice of re-sentencing juveniles who had their life sentences vacated under Graham, to lengthy terms of years that were not life in prison. In the case I handled, the trial judge re-sentenced my client for a series of robberies to 85 years in prison with one thirty year sentence to be served consecutive to another thirty year sentence consecutive to a ten year sentence consecutive to a five year sentence. It was, in my opinion, an intellectually dishonest sentence since my client could not reasonably be be expected to outlive his sentence.

The reasoning in Graham was that juveniles do not have the capacity to make informed decisions. Juveniles often act in rash and irrational ways. Their brains are not fully formed and they do not fully comprehend the repercussions of their actions. The Graham court also reasoned that juveniles are more susceptible to rehabilitation as they age.

In Henry, the Florida Supreme court applied the Graham decision in striking down a sentence similar to the case I handled. The court in Henry stated that a juvenile's sentence must provide "a meaningful opportunity for release."  In my case, the Third District Court of Appeals held that a sentence of 85 years does not provide a meaningful opportunity for release, much less a sentences structured in the onerous way the trial court fashioned my client's sentence.

Twenty years ago I watched helplessly as a woman I loved died of ovarian cancer. Her doctor was a wonderful oncologist. A young man full of fight and passion and skill. And yet, as I spent more time in his facilities watching people get chemotherapy, I realized that many if not most of his patients died. As a professional, I wondered how he did it? How could he keep fighting for patients that he knew in his professional experience would more than likely die?

My work at Regional Counsel frequently brings me into contract with people charged with the death penalty. My experience tells me that even if we succeed in avoiding the death penalty, the client will most likely spend the rest of his or her life in prison. For me (unlike the way many of my other colleague in this field view a death penalty waiver) I consider this a loss.  I don't and can't accept life in prison as a win. I refuse to accept such an outcome. I put one foot in front of the other and litigate the case to the best of my ability, and sometimes, like the decision I received today- I win.

I now have a better understanding of how that doctor did his work. The wins carry you through.

Here is the decision of the 3rd DCA. 

Thanks for reading.

PLR.

ALL THAT I HAVE LEARNED

Today I am 53 years old.

Here is all I have learned. 

First and foremost, 95% of life’s problems arise through poor communication. We don’t listen to each other. We talk over each other. Practice listening the next time you are in a business discussion or other serious matter. You will pick up a lot of useful information and you will find just letting the other person speak uninterrupted does wonders for them. 

That the music of the 60’s and 70’s is the greatest that ever was or will be.  Except for Sinatra and Springsteen. Sinatra was timeless and Bruce got better with age, as impossible as that seems. 

That Franco made a legal catch in what we call the Immaculate Reception and I love the fact that it still bothers John Madden all these years later. 

That 1979 was the best year ever to be a Pirate and Steeler fan. 

That Theodore Roosevelt’s “Man in the Arena” speech is the best possible source of inspiration and comfort to a trial lawyer. We win. We lose. But we are in the arena …

The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat. 

That Chocolate Chip cookies and Orange Juice are my (not so) secret vice. Try it. 

That I learned long ago never to draw to an inside straight, a flush with a pair on the board, or the ass end of a straight or boat. And I make tons of money off of poker players who never learned those lessons.

That Hyman Roth was right: health is the most important thing, and that your partners should always make money with you. 

That no storage unit is worth the junk you put in it. It’s an endless sinkhole of money. Avoid them at all costs. 

That I will never see a baseball player who had more passion and grace and élan than Roberto Clemente. But Cutch is pretty great to watch these days and Polanco reminds me at times of the great one. 

That while writing a book is hard, publishing it is the scariest thing I will ever do. 

That the lesson from Many Lives Many Masters was 100% correct: fear is the biggest impediment to success in life.

That while youth is wasted on the young, parents can lessen the impact of that.

That throwing a lure into calm waters and seeing a fish break on it is a thrill I will never get tired of. 

That in my mind at night I stretch that double into a triple and slide head first into third and then causally get up and dust off the dirt, just like Burt Lancaster said in Field Of Dreams.

And that the only line in a movie that ever made me cry, and always will make me cry is when Kevin Costner says “Dad, wanna have a catch?” at the end of  Field Of Dreams. And that’s a good thing. 

That I’m glad I was watching when Willie hit a home run in game seven off of Cuellar’s curveball in 79. Good things do happen to good people. Willie deserved that. 

That after all those decades of lifting weights and pounding on a spin bike, that yoga is the answer. It calms the mind and heals the body. 

That at age 53, I know one thing for sure: that the good lord blessed me beyond my wildest expectations with the two best boys any father could want. They have the greatest mother, and all I want is for us to watch them grow into men. 

I think I’ve learned a lot.

PLR.

A DEATH SENTENCE

 Two  weeks ago I stood next to a man who was sentenced to death.

Never did that before. Never want to do that again.

The circumstances of how that occurred are somewhat unique.

During the past two weeks friends in the courthouse who saw the picture of me next to the defendant and story in the Herald have been coming up to me offering words of condolences.

Nobody really understands the circumstances of how I found myself in court next to a defendant I had met only a few days before, acting as co-counsel as the court sentenced him to death  

The defendant was represented through trial, where he was found guilty, and through the penalty phase where the jury recommended death, by the Dade County Public Defender’s Office. After the penalty phase was concluded, a conflict developed and the Public Defenders had to withdraw. And when I use the term conflict, I am using it in the legal sense, not that the defendant was angry at his lawyers. He was not.

So the court appointed my trial partner Kellie Peterson and myself to essentially stand next to the defendant while the court handed down the sentence.If you know Kellie and if you know me, you know we were not going to just stand idly by. We filed what motions we could to stop the process, primarily relying on the fact that the United States Supreme Court is going to decide next October if Florida’s death penalty sentencing scheme, which allows for a non-unanimous jury to make a recommendation of death, is constitutional ( it is not constitutional-  a subject for another blog post, and  if Justice Scalia happens to read this, I will get that one up soon. Promise.)

So there Kellie and I stood as the trial judge went through the litany of very difficult facts of the murder in this case.  But I wasn’t standing right next to the defendant. Edith Georgi, who was the defendant’s lawyer through the trial and for the last several years stood next to her former client. She couldn’t technically represent him anymore, but she was there.

For those of you who don’t know Edith Georgi, let me make it simple- she is as fine a death penalty defender as there is in the United States. Period. She kicked my ass in a murder case when I was a prosecutor many years ago (I often wonder if she remembers that. I do. )

As the judge went through the specific acts,  she included in her sentencing order a fairly stirring and stinging  denouncement of the defendant's acts, Edith was there rubbing her former client’s back, whispering in his ear to be strong, and being as compassionate as a person-lawyer  can be.

I can’t get this scene out of my mind. The judge intoning the very horrible acts the defendant was convicted of committing, and Edith touching him and telling him to be strong and that it was going to be okay.

When the judge, in a biting comment, mentioned that the defendant had been a very religious person, leading bible classes in jail, and then said “but you forgot the commandant ‘Thou Shall Not Kill’ ”, I could feel the judge’s eyes burning into my client. I leaned over to Edith and whispered “She’s wrong. The sixth commandment says ‘Thou shall not commit murder’. The bible is full of instructions to kill.”   I briefly considered objecting, before deciding that in this instance discretion was the better part of valor considering that the defendant had in fact been convicted of murder. The death-sentence train was roaring down the track we were tied to. I could see it’s malevolent lights in the distance, growing stronger with each sentence of the judge’s order.

It’s easy to be compassionate to the most vulnerable amongst us- the homeless family, the sick child, an accident victim.  But how much harder is it to show human compassion towards someone who by all rights doesn’t deserve it?

But what Edith and Kellie and I know from a lifetime spent in these types of cases is that beneath the tattooed, hulking, frightening exterior of this convicted killer is a human being, who was once an innocent child, and who somewhere, in someway, went terribly wrong.

As Jesus said: “love the sinner, not the sin.”

Bless you Edith for those simple acts of compassion. I know they meant a lot to your client.

There is nothing heroic in defending the un-defendable. I reject that notion that some of my fellow criminal defense attorneys often wrap themselves in as they commiserate their losses. Quite frankly, it stinks. It’s awful. It wakes me up in the middle of the night and I stare at the ceiling in the darkness thinking sometimes of my client’s victims. Other times I wonder where my client went wrong- what moment in their life turned them from a normal human being who values life, into someone who committed a horrible crime?  And then invariably the questions about myself. Why am I representing them? Why don’t I just devote my trial skills to suing insurance companies? I could make a lot more money.

Each of us in this field has our own reasons for why we do what we do. I won’t speak for my colleagues. But in that windowless courtroom a few weeks ago, when I saw true humanity- a simple act of kindness by Edith Georgi, a remarkable lawyer and human being, I knew, despite all the pain, the impossible cases, the continuing stream of motions filed and denied,  that I am doing what I am best able to do. I am using whatever talents the good lord gave me, in the best way possible. And for now, (until my books get published ) that will have to be enough.

CHALLENGE EVERYTHING

In the television show House, House- the brilliant but cantankerous diagnostician doctor continually tells the doctors he is training "everyone lies".

And so they do. 

The challenge I face as a criminal defense attorney in every case I accept is not only to determine who is lying, but if everyone is lying, what is the truth? 

The fact that everyone lies was brought home this past week with the revelation that the vaunted FBI crime lab lied on almost every hair analysis case they handled for the past thirty years. In the wake of the scandal are the innocent men and women who were wrongfully incarcerated by junk science. In the last case I read about, the FBI matched a hair to a defendant, testifying that the odds of a match were one in ten million. The testimony turned out to be false.  The hair sample allegedly matched to the defendant was from a dog. About the best you could say about that is "right planet, wrong species."

The simple lesson for myself and my fellow criminal practitioners is to never accept any of the evidence the prosecution puts forward in any case without first investigating and challenging the evidence. Many times, for strategic reasons, I will not care if scientific evidence links a client to a scene. 

Say I am representing a woman who killed her domestic partner and wants me to raise the battered-spouse syndrome in connection with self defense. A fingerprint that puts the client at the scene is probably meaningless in terms of the overall defense. But a good criminal defense attorney examines all the evidence. Even though the client may not deny being at the scene, the ability to show that the prosecution relied on faulty -if not terribly relevant- evidence- is an opportunity many attorneys overlook. So the lesson from this week's FBI hair analysis scandal is to challenge everything. Or as an old, grizzled criminal defense attorney from Brooklyn once told me: "The only thing I waive (wave) in court is the American flag." 

When Lenny Fusfield told me that, I was a young and impressionable law student. It was one of the first lessons in courtroom strategy that I was ever given, and I can count the times I have deviated from that strategy, and most of the time it has been to my regret. 

When House said "everyone lies" he was talking mostly about his patients. In that regard, clients will often shade their version of events, many times to avoid upsetting me.  Clients think that if they tell me exactly what happened I won't want to represent them because of their criminal conduct. This is entirely natural.

But to quote Hyman Roth from the Godfather II "This is the business we have chosen."  As I often tell clients,  "If I couldn't represent people charged with what you have been charged with, I would have stayed being a prosecutor."

When my client's deny involvement in a crime, I want to believe them.  But I do so at my, and more importantly, their own peril.  And yet, as you will see below, I don't believe them at my own peril as well.

The more I know about the actual facts, the better I can help them. 
The more I know about what occurred, the better I am able to determine when police are engaging in, what I call TEJTM investigation: "The ends justify the means". 

I very often see police prevaricate their actions in an investigation because they are "sure" they have the right guy, and they'll be damned if they will let them get off because of something inconvenient like the truth. The best police investigators don't do this, and they are in fact the hardest for me to cross examine, because the truth is the truth and jurors will instinctively trust a police officer who is telling the truth, even if it is to the detriment in the case. 

The worst and perhaps most tragic example of this was my representation of a client in the re-trial of a tragic murder  that occurred in 1989. The client gave a confession, and then spent two decades saying that the police threatened his family and didn't honor his request for an attorney during the interrogation. The client was originally sentenced to death and the conviction was reversed for other reasons. During the second trial the tape of the interrogation surfaced after 20 years, and sure enough the client is on tape asking for an attorney and the police respond by threatening him and his family.  The police, having previously denied at deposition and the first trial what was now clearly on tape, were stuck with their former testimony. It did not go well for them at trial.

Everyone lies.  Except every now and then a client that has every reason to lie, and whom no one believes, tells the truth. And there is the ultimate challenge for criminal defense attorneys: to challenge the police when all the evidence seems in their favor and to believe the client when no one else does. 

It's a challenge. 

PLR. 


 

FELONY MURDER

“I will set you free.”

Exodus 6:6

For a criminal defense attorney, the story of Passover, the freeing of the Jewish slaves from Egypt, has to be inspiring.  Isn’t the unspoken and at times spoken motto of our profession “Let my people go?”

The analogy fails, most of the time, because we represent clients who usually have done something wrong that our laws say merit punishment. The Jews on the other hand, were in bondage.  But this question, at its core, is the examination of the unjust bondage of people.

The federal government and the justice department have now, slowly, begun to recognize the unjust incarceration of tens of thousands of low-level drug offenders, the victims of the 1980’s war on drugs.  Our prisons are littered with harmless inmates, many of whom did nothing more than make the mistake of agreeing to take a package for someone for a few dollars. These people- mothers, fathers, grandparents- are serving draconian sentences of decades. The tide is beginning to turn.

Not so for Florida’s felony murder law.

In Florida, a person can be convicted of first-degree murder two ways. There is the traditional way of intentionally killing someone with premeditation, and there is the untraditional way of being involved in a different crime- a felony, in which someone is killed, almost always unintentionally. 

The crimes are different. By definition the type of person is different- the cold hearted killer versus the person being in the wrong place at the wrong time, but  the penalties are exactly the same: execution or life in prison without the possibility of parole.

For prosecutors, the felony murder rule greatly simplifies their burden of proof. Premeditated first-degree murder contains an element of proof- planning and premeditation that is often hard to prove. But if, before, or during the murder, the defendant took something, even of small value, then the prosecutors can charge both premeditated murder and felony murder, and the jury can choose between whatever theory they want. The prosecution  does not need to prove premeditation in felony murder cases. The penalty is the same when the defendant is convicted; he or she is treated as if they had committed the worst possible crime- premeditated murder, and sentenced accordingly.

I recently concluded the representation of a young man, who at age eighteen was accused of going with four other young men (their ages ranging between sixteen and eighteen at the time) and burglarizing the house of a wealthy athlete.  My client was not the person who brought the gun and was not the person who fired the weapon, but my client was facing just as much time –life in prison without parole- as the person who fired the gun.

The case was a tragedy in every sense of the word. A young man with a family was killed in the prime of his life. He was not supposed to be home at the time of the burglary, and a tragic set of circumstances put him the position of being unable to call 911 and having to defend his family, which resulted in one errant gunshot that hit him in the leg and caused his terribly tragic death.

My client spent seven years in pre-trial detention contemplating his role in that one horrible night that took a life, and ruined several. My client had a negligible juvenile record. He came from a broken home, but with a mother who loved him dearly and did her best. He was a high school athlete, and had fathered a child before he was arrested. In jail he matured from a teenager into a young man; thoughtful, introspective at times, and almost uncomprehendingly frightened at the prospect of the  loss of most of the rest of his life.

If we tried the case, we risked losing the felony murder count, and the judge, one of the best I have ever had the pleasure of knowing, would be forced to sentence him to life in prison without parole. If there was a deal to be made, it would have to be made with the prosecution, because in Florida, only prosecutors can reduce charges and waive minimum mandatory sentences.

The prosecutor was and is, in my opinion, the best lawyer in his office. He is fair and honest and thoroughly prepared. He would have every advantage at trial and I couldn’t count on him making any mistakes. Behind the prosecutor was the family of the deceased, justifiably aggrieved at the loss of their son. I am a father. I would feel the same way. 

But I couldn’t negotiate this case based on what was fair. I couldn’t involve the wise and experienced judge into the negotiations, getting his input on what was a fair sentence, because Florida’s legislators have rendered judges mostly powerless in sentencing defendants in cases where there are minimum mandatory sentences.

So I had to deal with the prosecution, which meant I was really dealing with the family of deceased,  and the prosecutors were middle-men.  Not to cheapen this process or the lives and pain of all involved, but imagine buying a car where every time you make an offer the salesman leaves to go and “speak with his manager.”  Any offer I made to resolve the case had to be cleared with the family of the deceased. So now I was dealing indirectly with people whose emotions were justifiably dictating their feelings. I don’t begrudge for one moment the pain they felt or their hatred of my client, but should they have been the ones making the decision in this case?

Because that’s what Florida’s felony murder laws have done. The judge is powerless to waive the minimum mandatory life sentence. Only the prosecution can do that. And prosecutors won’t make an offer to resolve a case that the next of kin won’t approve.

So to defend my client and work to have him justly sentenced for his role in this case,  I am indirectly dealing with the people whose emotions are justifiably inflamed. Powerless to stop the death of their loved one, they now hold almost all the cards over what the punishment should be. Is that what we want? Victims deciding punishment? The role of a judge reduced to a bystander. The role of a prosecutor reduced to a conduit of plea negotiations. The roles of professionals reduced, while the roles of non-professionals and their emotions dictate what the final sentence will be.

I am not an expert, but isn’t this what Sharia law requires? An eye for an eye? Hands chopped off for stealing, people lashed in a public square for premarital sex or dancing in public.

Whether or not we want this system, that is the system we have. I do not advocate for silencing victims or next of kin. They should be heard. But they are the least able to arrive at a fair and just sentence, and yet they are currently in many cases the final arbiter of such sentences in cases like these.

Nobody won here. I did my job with my trial partner and we saved my client’s life. He will not spend the rest of his life in prison. But in my opinion his sentence is ten years more than it should have been. And if I am wrong, then I would rather have a judge make the final decision and tell me I am wrong, then have the sentence issued de facto, by the family of the deceased.

I practice a profession and I write this blog about my profession. I   Perhaps many non-professional people who have suffered the murder of a loved one will think very critically of this essay. “My son is dead” they will say, “your client isn’t. He can still call his mother.” And they are right. Their pain is never ending and they have the right to mourn their loss and  hate the people involved. I can’t ever challenge their feelings nor would I. They are, in a word, “entitled” to feel the way they feel.

Are we a State that is ruled by law and that sentences its citizens in a rational and fair way? Or do we believe that there should be no fairness in sentencing? That those who are involved in a murder, in even the most tangential way, should suffer the ultimate penalties?

Right now, from my perspective, I do not like the answers I am seeing to those questions.