Category Archives: Trial Cases

Guilty until proven innocent

Illinois Governor Blagojevich, judged by approximately 200 million Americans old enough to serve as jurors, is a crooked politician, indeed a criminal, a snarly, mop-haired, smart-ass who tried to sell Obama’s vacated seat in the Senate, and as the consequence of which he should be expelled from office and provided immediate residence in a federal penitentiary where, hopefully, he will get a haircut. He also has a dirty mouth. Whether he is guilty of any crime I do not know. Nor does anyone else including Mr. Fitzgerald, the prosecutor, who, the last I heard, was not the jury.

Simply stated, Mr. Fitzgerald has absconded with the governor’s presumption of innocence. The prosecutor has abused the immense power of his office to transform otherwise innocent members of the public — all of us – into persons who, as a result of Mr. Fitzgerald’s releases to the media, have already decided the governor’s case before we have been provided the first word of sworn testimony in a court of law. The prosecutor has converted us from the innocent to prejudiced persons. As a result of the prosecutor’s media blitz we have already come to the conclusion that the governor is guilty, and we demand that he be appropriately dealt with and immediately. A drunk who runs the stop sign at First and Main is provided a better set of rights.

This is an experienced prosecutor who knows better. All trial lawyers down to the kid trying his or her first case know that cases are to be tried in a courtroom, not in front of a TV camera. Mr. Fitzgerald knows that his trial of the governor before the cameras calls into play the Canons of Ethics that govern not only prosecutors but defense attorneys alike. We are prohibited from engaging in pretrial public statements that are likely to affect the outcome of the trial.

Mr. Fitzgerald’s conduct has substantially guaranteed that the governor will never obtain an unbiased jury in Illinois or anywhere else. That the prosecutor, who is governed by standard rules of ethics, would take such risks suggests that he sees himself above the law as he attempts to prosecute a governor in the media who allegedly also sees himself as above the law. Were I, as a defense attorney, parading before the cameras attacking the prosecution and factually defending my client I would be immediately gagged, and threatened not only with contempt of court, but with complaints to the bar where my license to practice would be in jeopardy. That such arrogant power is vested in any prosecutor is frightening in itself and destroys an even playing field to which both sides are entitled in their search for justice.

Our collective public mind has been molded by the movies and television to accept the notion that the common good permits, indeed, encourages cops and prosecutors to violate the law in order to protect us. We see the police battering down doors of suspects to illegally obtain evidence. We witness the cops bugging phones and forcing confessions. We want the police to win, because they are the heroes of the drama and such crimes are serious and threaten our security. But this sort of lawless bludgeoning of the law does terminal damage to our system of justice. By destroying the rights of any accused none of us are ever safe from the law that once stood to protect us.

Mr. Fitzgerald has selected and then dumped out pages of unsworn, untested, evidence before governor has even been charged. We already know that what the prosecutor provides is only part of the story, only the juiciest excerpts that will cause the governor the most harm. The grand jury has not yet met. Every potential member of the grand jury and later every trial juror who will sit in judgment of the governor has already been stained with prejudice against him. The presumption of innocence has been reduced to a cruel joke. Why have a trial? Mr. Fitzgerald has already convicted the governor in the media. One wonders if the government’s case is so legally flimsy that the prosecutor must revert to these tactics in order to assure a conviction.

Let us now make our own judgments. For this purpose, and for this purpose only, let’s accept the allegations of Mr. Fitzgerald as true. Let’s then ask: Which is the worst conduct — for a governor to seek the sale of a vacant senate seat or for a prosecutor to wrongfully deprive any American citizen of a fair trial and to destroy his constitutional right to the presumption of innocence? The act of the governor results in his illegal enrichment and constitutes a serious undermining of our representative system. The act of the prosecutor results in the wrongful destruction of an American citizen’s rights and casts a threatening shadow over the entire judicial system charged with the duty to secure our constitutional protections.

Mr. Fitzgerald’s conduct transcends this case. What we witness without a whimper from the media, the courts, or the bar is a prosecutor charged with the highest professional duty to see that every accused, no matter how guilty, obtains a fair trial, and who, instead, in this historical instant, has voluntarily taken steps to see that such a right becomes little more than a sad, distant echo of a justice system that once set the standard for the world.

Murder by We, the People

As we have been considering murder here I received word that a close friend of mine, Dana Cole, a fine man, lawyer and a law school professor, has recently witnessed the murder of his client.

I have argued that the seeds of murder abide in all of us. But what about the love of murder that flourishes in the belly of the law? The law purports to represent right conduct on the part of we, its subjects. But the law itself is a killer. And we, though those who represent us, author the law. As a trial lawyer for now more than fifty-six years I have acted on both sides of this question. But rarely do we discuss who actually endures the punishment of death.

Lawyers who take on a death penalty case are among our greatest heroes. They are few and unsung and often despised. Their pay is piteous. And some work without fee. But they protect the soul of the law. In America the promise is that every citizen, no matter how vicious and brutal, is entitled to a fair trial. Only a lawyer who loves the law and has a deep sense of the human condition would take on such an assignment. For most lawyers, such cases are too ugly, too bloody, too horrifying and too painful.

Here, in part, is what Dana wrote me concerning the execution of his client, Rick.

As the shock of witnessing my friend die begins to wear off, the horror only increases.  I have never had trouble sleeping until now.  I sleep only a few hours at a time and even then I have nightmares — bizarre dreams involving dogs that strain against their leashes and break their restraints but simultaneously break their necks.  I cry in restaurants without warning and without even consciously thinking about Rick.  If things don’t improve soon I’ll go see someone about it.
 
I have received unbelievably hateful voice and email messages.  More than one person has expressed their wish that my daughters suffer the same fate as the victims in Rick’s case.  I have also received very loving and supportive messages.

I feel compelled to defend Rick even in death.  I made the following statement to the press immediately after Rick was killed:

“I am Rick Cooey’s lawyer and friend.  The crimes that Rick committed he committed as an immature 19 year old influenced by drugs and alcohol.  We try to pretend we are somehow better than Rick. But what we witnessed here today was a killing that was planned and funded for more than 22 years.  The man we killed is not the same man who committed the crimes.  He had grown and evolved and matured and was today a 41 year old man who bore no resemblance to the teenager he once was.  He was good and decent, bright and articulate, creative and witty, and very kind.  He was loved by his family and his friends and even his lawyers and we will miss him.  Rick is now beyond pain — beyond sorrow — beyond the call for his blood.

We refused to show Rick mercy by arguing that he showed his victims no mercy. When we are asked to account to God for having killed Rick, what will we say? — that it was the law?  In the words of George Bernard Shaw, “Criminals do not die at the hands of the law; they die by the hands of other men.”  The mercy we refused Rick, we will surely someday need and may God have mercy on us all.”

They will send me Rick’s ashes and I will take him to Ireland to a spot he and I picked out together…Despite the pain of all this, I know I was right where I needed to be — with Rick until the end and beyond.

Meaningful words are hard to find. Here is some of what I wrote Dana:

Once more I ask, who is being punished here? Rick is at peace. His death will not erase the pain of his crime. You will bear the scars of this case for the rest of your life — and it has nothing to do with any failure on your part. It has to do with the injury that is imposed on decent, dedicated lawyers in cases in which this illegitimate penalty is imposed — for how can death be a just punishment in a system that makes intentional killing a crime?

We kill the killers and become killers, and wonder why we cannot stop the killing. Yes, we are killers. I, too, would kill with a certain glee if the Death Penalty were humanized and I could drive a knife through its heart once and for all.

In the end, Dana, you can see this as your gift, and Rick’s, toward the demise of the Death Penalty. As in any war, we have to invest so many lives in the battle before it can be won.

Indeed, if we executed the legislators who gave birth to this law; the judges and jurors who embraced it — who joined in this conspiracy to kill; if we applied the law of murder to the mob of citizens who clamored and yowled for Rick’s blood, and to the prison personnel who for twenty-two years planned and finally committed this public killing – if all were punished similarly for this premeditated murder, this uncivilized idea of the death penalty would soon vanish.

In the name of humanity we must stop the killing – all killing, or in the alternative we must stop claiming there is something noble, something heroic about the species that separates us from the beasts.

On murder

“You can never beat the big one,” old Tom Fagen used to say. He was a grizzled, tough talking criminal defense attorney who was as sweet and easy inside as an Easter bunny. He was talking about murder — the charge. If you are guilty and tried, and if the jury acquits, it makes no difference. You can never beat “the big one.” An evil entity intervenes. The Prince of Demons shall we call him. He attacks with guilt. I have known those who beat “the big one” in court to at last be beaten by their own hand. Suicide it is called. I think it better called the revenge of “the big one.”

I have seen those who have beaten “the big one” end up being murdered by others. I have seen them die the slow self imposed death of piteous alcoholics or drug addicts. I have seen them die desolate, alone, often diseased when the body has given up because the mind could no longer deal with “the big one.”

I know that the psychopaths and sociopaths, those without a conscience, may still trot around, perhaps dying of old age, laughing that they beat “the big one,” perhaps even more than once. But those poor devils were beaten to begin with, their lives a waste and empty as a can. They never were in the race – not even the human race.

But what about the innocents who are charged with murder and acquitted? Once charged, the innocent can never fully recover — the terror of the trial, the helplessness of standing for judgment in such a place of horror as a courtroom where nothing grows, where no one believes you, where if you rise up and scream your innocence you are hauled away where you can scream only at gray walls, and if you sit passively by the judgers, the jury, the citizens, the court gawkers – they all know you are guilty or you would be screaming your innocence.

And you cannot escape the transforming power of fear. At night you awaken and the first thought that creeps into your mind like a poison worm is that you will be found guilty, that they will haul you off in an orange suit to some dark hole where you will rot the rest of your life, where you will never again see your loved ones, never be touched by a loving human hand, never again see the peaceful leaves of fall or the joyous spouts of spring. No greater punishment exists than one imposed on the innocent.

Or, yes, they may order the gurney and the dripping needle for you, the last meal, the media crowded around to watch you die, and the hateful death-penalty ghouls rejoicing in the hallways that one more of their species has been wiped from the face of the earth.

In this world in which all innocence has become the cynic’s delight, there is no innocence. On that rare occasion when the innocent may be acquitted there has been too much pain for too long. The torture of months, perhaps years of terror awaiting trial and then the horror of the trial itself – it is then that The Prince of Demons comes to occupy even the body of the innocent accused. The tortured body and mind have become emptied of life, empty as death. It’s as if you have been murdered by the malicious heat of the murder trial itself. As old Tom said, you can never escape “the big one.” No, never.

How to survive the tyrant Judge (part 3 of 3)

Part 3, The judge. Who is this Tyrant?

We remember from Part 1 that the abused child likely sees the judge as a potential abuser. The child whose parent was self-centered and narcissistic, as a lawyer, will likely suspect the judge as having little concern for him or his client. The child who feels his parent abandoned him will see the judge as one who cannot be trusted. Yes, and the child who was loved and deeply protected may, indeed, as a lawyer, relate to the judge as the source of protection and favor. Any accurate understanding of the judge-lawyer experience requires us to become aware of how we saw the power-persons of our childhood. This judge–any judge–like any other person of power, has the capacity to help, even to love. Yet this same judge can, if challenged, descend upon us with a vengeance in accordance with the judge’s own psychic composition, all of which bring us to the consideration of the judge. Who are they?

So we walk into the courtroom dragging our baggage behind us and look up to His Honor, who drags into the same room his own baggage. Obviously these persons were once lawyers themselves, and before that, children who had experienced their own power-persons. These are human beings who are as vulnerable as we, and to the extent that we have begun to understand ourselves in relation to authority, so, too, we can understand them.

When judges ascend, they do not leave behind their beginnings. When they take on the black shroud their roots do not evaporate into the firmament. Indeed, judges, as we, will exercise power in ways reflecting their own struggle with authority. It is useful to see the judge not as this tyrant peering down at us with evil intent, but as this child not different than we, not this monster shouting his fearsome commands at us or the bully embarrassing us before jury, but the child before he was immersed in his own history. Could we but see the judge as human, as reacting to his history, might we not be so afraid?

At this seminar of Trial Lawyers College I have previously mentioned, the great Josh Karton – a teacher of far more than drama – was working with a pair of attendees. One played the role of the uncharitable judge, the other the lawyer who was attempting to win his point. The lawyer, as is his wont, spoke in the high tight tones of the arguing lawyer employing the empty words we use in the courtroom. Karton frequently interrupted imploring the student to use plain words, not, for example, “I hereby move the court for a continuance,” but, “Your Honor, I need to have this case put over for a week.” Not, “I am otherwise committed by a prior setting in another court,” but “Judge Jones has ordered me to trial on Tuesday.”

The lawyer playing the part of the judge was unmoved. “This is not my problem, counsel,” he replied. “You can take this up with Judge Jones.” But suddenly Karton changed the entire environment when he suggested that the student ask the judge for help. “I would appreciate it if…”

“No,” Karton said. “No. Ask him for help.”

“I would like you to…”

“No,” Karton interrupted again. “Are you afraid to use the word, ‘help?’”

“I need…”

“Use the word, ‘help.’”

“Could you help me,” the lawyer said at last.

The judge was silent for a moment, almost as if he couldn’t think of what to say. Finally he said, “See my clerk, counsel. Perhaps he can find a spot week after next.”

We discovered that the word ‘help,’ does, indeed, carry with it powerful urges. That word is consistent with the parent’s responsibility to the child. On the psychic plain, if the lawyer is child and the judge parent, an underlying impulse to help is at work. The need to be helped is endemic with the judge who was, himself, a child in need of help, and that need persists with the judge who is now the power-person with a parental duty to help. As judge, he likely told himself and his sponsors that he wanted to help his community by rendering justice. To be helpful is the confessed motivation for most judges to abandon private practice and don the robe. Further, without regard to the lawyer-judge relationship, the notion of being helpful is one deeply embedded in our society. We help, or believe we should, those who need help. By intention, if not action, we have become the good Samaritans from the first days of our teaching.

Something magical happens when the judge soars to that place of power, the bench, from which he stares down at us, or worse, refuses to look at us at all. We forget that yesterday he was as we, smallish inside, puffed up on the outside and standing before another judge projecting the preadolescent posture of his own child. But in a matter of a day he has abruptly changed into someone we do not know. How he has shed his history of humanness is a mystery we do not address. We see him in a different light. By representing power he becomes power. His power casts a new eerie light over him. He speaks in a different tone, and his lexicon seems foreign and stilted. In our sight, and in our ears he has transmogrified into that which has arisen and is untouchable.

At this workshop Karton sought to remind the participants that judges are but humans, that they were lawyers as we, and, yes, before then they were once but little children. He called upon a ex-marine, a former sergeant in the View Nam war to play the part of judge. He dressed this judge up in a pair of little panties and put a teddy bear in his arms. Then Karton called upon another participant to present his argument to the judge. There was spontaneous laughter from the audience. How silly, the judge, how ridiculous. That we should be intimidated by such a man, was unthinkable. But how was it that a tough Marine, by a few exterior accouterments of the child, was transformed in our vision from the fearsome jurist to the ridiculous child?

We, of course, know that although the judge may have a revised view of himself, his underlying self has not changed. Although he may be taken with his new power, nevertheless we know that at his core he is the same old Henry Honeycut. The principal change has been in our eyes. They play tricks on us and cannot be trusted.

In the debriefing that took place, the sergeant who had played the role of the judge was asked if he had felt humiliated. He, too, was the same person both before and after his role playing and the fact of his embarrassment was barely able to penetrate his tough exterior. “Yeah, maybe a little,” was all he would admit to.

But at lunch I sat across from a member of the faculty and as we talked about what we had witnessed he began to tear-up, his lips began to quiver and I realized he was crying. I asked him, “What’s the matter, man?” and he replied, “That judge (referring to the marine) was hurt.”

“Yes,” I said, “perhaps a little.”

“More than that,” he said. He is a very sensitive man. “More than that!” he said again weeping through the words. Then he burst out with it: “Who protects the judge?”

And the epiphany came exploding through to me! The judge, before him, the lawyer, and further back the abused child, had always sought protection. There is power in the legal profession, not the greater power of the judge, but power. The lawyer has more power in the course of human affairs than the plumber. Lawyers, police officers, probation officers and judges are in power professions. And who needs power? Most often those who seek it need it.

Given even marginally acceptable conduct, when the judge takes the bench his level of protection is also elevated. He does not enjoy perfect protection for he must consider the whim of the voters, the power of a hostile media and the pressures of his office, but once enthroned the security he achieves is greater by magnitudes than that of nearly every other member of the system. To the litigant in any given case the judge is the most powerful person in the universe. To the lawyer (who may once have been his adversary) he is untouchable. Who can successfully attack the judge? What lawyer? What litigant, what police officer—who?

But what about the bellicose lawyer who challenges the judge to “bring it on.” What about the lawyer who’s willing to attack the judge in ways suggesting mutiny, or even to assault him with a poorly disguised contempt? It’s not that the judge is in actual jeopardy. It’s not that his safety is at issue. He is still the judge. He has the power to order the sheriff to place the contemptible lawyer in the cross-bars hotel and to remain in jail until he has purged himself of such contempt. But that the judge has the power to protect himself, even from mere insult, does not mean he doesn’t feel threatened, and the question raised by our sensitive staff member, “Who protects the judge?” becomes an important key to understanding the attorney-judge relationship.

Let us consider the tough, intransigent, irascible old devil who will skin us like a trapped rabbit, the judge we all fear—the judicial bully. We see him with the young, childlike lawyer we have already met, the one with the cemented smile, the baby face and the voice to match. He will protect her. She requires shield and shelter. But put our mucho-macho man before the same judge and although in reality the judge is no more threatened by him than by the childlike lawyer, the judge will disembowel this lawyer. It isn’t that the judge arises to any danger, real or perceived. He reacts to the child within. He needs protection, and when our friend asks, “Who protects the judge?” we see that he protects himself, the child within, with the power of his position, the power he sought in the beginning for his protection. “Who protects the judge?” We do. We must if we are to effectively represent our client before him in the courtroom.

So there we are, judge and trial lawyer, mirrors of each other, sometimes both fearful of one another, and both taking such steps as may be necessary to survive a perceived danger—both persons echoing the trauma of times past. From the lawyer’s standpoint, his best defense is to understand himself or herself. We cannot educate His Honor about the roots of his need to judge. We cannot take him by the hand and lead him into the forest of his past and reintroduce him to those experiences that formed his needs. Those in power are rarely capable of recognizing the forces that led them to seek it.

But we have become enlightened. We have inspected those original places where the child in us is like the first rings that make up the towering tree. The tiny rings at the heart of the tree never disappear no matter how mighty the tree may grow. We begin to understand how the child in us is still so easily threatened, but so, too, is the judge’s child. We both seek protection. We observe the threatened child as lawyer, fearful, terrorized, sometimes, in defense, confronting and hostile, threatening, even raging. We see the lawyer both afraid and angry that the judge he stands before is the tyrant judge. But we have learned that the tyrant judge was born of similar beginnings, and that, to the same extent we need protection, so does the person we fear the most in the courtroom—His Honor.

The mirror is always at work.

How to survive the tyrant Judge (part 2 of 3)

Part 2, The dangerous disease of power

I have long held to the proposition that the expressed motivation attracting judges to the bench is suspect.

I do not take as universally true the easy, self-serving assurance of many judges that he or she simply wants to do good. I am leery of do-gooders. I have believed, and I still do, that judges, like all persons, have needs that fuel their choices. Their need, in a money society, is certainly not money, for judges are notoriously underpaid. The greatest attraction to the bench is simply power. In a given case the judge has more power over the litigants before him than any other human being on the face of the earth.

I have sometimes encountered tyrant judges who lord it over the poor rabble struggling below them, who seem to enjoy observing a particular lawyer helplessly twisting and turning in the winds of their whims. I have suspected that some such judges furtively rejoice in their power over lawyers who have been more successful than they, and over litigants who for unobvious reasons the judges may despise. I have seen judges who eagerly await the opportunity to dump a load of scorn on those who have made unfortunate choices in their lives. Yes, some want to do harm. And I am saddened that I find myself writing these lines.

I recognize that judges, like doctors who daily face the injured and dying, and lawyers who are routinely relating to clients who are maimed or hated or who are guilty of horrendous crimes, may become calloused in order to maintain some semblance of mental health. But as for judges, how does a human being wrench screaming children from their parents, turn one’s back on the pathetically injured for no better reason than they fail to fit some fictional legal model, send men to the death house or to long terms in the torture chambers of prison unless the judge has grown a certain protective coating around the hide of the heart? Still even the most gentle judge, the rare one who exudes a caring nature, is often one who I am not likely to trust, not at first. I have discovered that too often an outward benevolence covers a merciless heart.

But if I am fair I must acknowledge that judges are not too different than I. I, too, claim I want to do good. I claim that I have devoted my life to help the forgotten, the lost, the voiceless, and the damned. It all sounds good. The idea of it feeds my soul. I have a need to be useful, to feel worthy, to engage in just causes, to fight just fights. I wish to be seen as a warrior for the people. If my own sense of self stands for justice on behalf of ordinary people, justice against the powerful, against the corporate overlord and the tyranny of government why can’t I grant such an honorable motive to judges? After all, we have encountered many humans who genuinely care. And judges who were once lawyers surely know the dismal plight of those who seek justice and who so rarely obtain it. Yes, rarely.

Still, these days too many judges ascend to the bench bearing a fealty pledged to the people’s masters. We can understand the phenomenon. Today, most judges are selected by a power saturated with the interests of business, and a majority of the judges appointed were once prosecutors or corporate lawyers. In their former lives these lawyers took on the cause of power. As prosecutors they were daily drowned in the dreary decadence of criminals crowding the jails. As civil defense lawyers they experienced the excesses of trial lawyers representing those who claimed to be injured or who, even though injured, sought to take advantage of their injuries. The politicians seek judges who reflect their own philosophical leanings. The tree grows bent in the direction of the prevailing wind and in the calm can never fully right itself.

“The tree grows bent in the direction of the prevailing wind and in the calm can never fully right itself.”

Unfortunately, my view of the bench is supported by a majority of trial lawyers who represent ordinary people. At the Trial Lawyers College, where we teach lawyers how to successful fight for people against corporate and government power, the attitude of the attendees who have spent many years in the trenches before countless judges is nearly uniform. Rarely do I find a lawyer who believes most judges are mostly fair, mostly caring, and mostly driven to accomplish good ends. Sadly, many see judges as their enemies, as opponents in the courtroom even more powerful and adverse to the lawyer than the opposing lawyer.

They see judges more concerned with their dockets, with moving their cases forward, with controlling the courtroom and the lawyers, with making decisions that will be acceptable to their constituents and that will not be badly reported by the media. True, most often lawyers do not see judges as overtly dishonest or even consciously in the pocket of power. But they see them as the possessors of power who too often exercise it wrongly, insensitively, in forwarding their own agendas, and ultimately functioning to the detriment of the litigants. This is not to say that there are no caring, fair, even loving judges in this country. Many, but not enough, do great honor to the bench. In the end, a majority of judges are seen by most people’s lawyers as a power source of harm.

As for me it is harmful to look up to a judge who has ignored the poor and bowed to the rich, to show such a judge respect when he is not worthy of respect, to show such a judge deference when he reveals an underlying indifference to the human condition, to give such a judge honor when he has lived a life on the other side protecting power and money. Yet I am troubled by these judgments.

COMING SOON, Part 3 of 3: “The judge. Who is this tyrant?”

How to survive the tyrant Judge (part 1 of 3)

PART 1: Understanding the self

I preach endlessly that it all begins with you.

We’re afraid of judges because they’re power-persons, which harkens back to our experiences with our first power-persons – usually a parent. Most often we don’t understand that psychic connection while we stand miserable and quaking before His Honor. Instead of a judge the psychic eye sees a raging father or a scolding mother. The psychic memory has not forgotten the child’s helplessness before such a power-person. Nor has the survival instinct let the psychic mind forget that should the child be cast out, the child will face the ultimate horror—death. And what if the judge should reject us?

We are introduced at an early age to the relationship between power and helplessness.  Beyond the fear of the parent power-person we are taught to fear the ever-watching God—the ultimate power. Why do judges peer down on us from on high? Why do the remnants of ancient belief systems still have us “praying” to his Honor? From the earliest times we learn the art of beseeching that is often gilded with resentment—the deaf, unresponsive God of Job. And always we long for our own power.

At a recent seminar conducted at Trial Lawyers College, participants were asked to complete any unfinished business they might have with a parent, living or dead—one participant taking on the role of the child, another the parent and the two reversing roles as necessary to permit the full story to emerge. The results of such exercises are universally astounding. The participants are touched in deep places, some to weeping, some to silence and others to anger. But none leave the exercise unmoved. Why, I have wondered, is there such a high quotient of parent-child conflict?

My own supposition, formed empirically over the years, is that more children than we suspect have been abused. I am defining abuse from the child’s perspective of powerlessness. To the child, abuse feels like the inexorable, assertion of raw, undeserved power. It may include perceived unjust punishment, deprivation or a sense of abandonment directed to a child who is unable to fight back or to protect himself or herself. It is the painful exercise of power by often innocent parents that imposes injury.

Parents are not equipped to judge their conduct through the eyes of the child. No courses are offered for Parenting 101. Often abuse grows out of the parent’s own experienced abuse as a child—so the biblical admonition that “the sins of the father are visited upon the child.” Some parents who feel powerless themselves are the first to exercise unwarranted power over their children. The abused child, as I have defined him or her will become the lawyer most likely to be abused by the judge.

“The abused child, as I have defined him or her will become the lawyer most likely to be abused by the judge.”

At the above mentioned seminar I was drawn to a young woman, a beginning lawyer, who presented herself as childlike. She had a small, sad, perpetual smile on her face, and if I shut my eyes and listened, her voice sounded like that of a five or six-year-old. Physically she looked like a little girl with a chubby body and a round doll-like face. Naturally she was adored and protected by the other participants at the seminar. She had had limited experience in the courtroom. But the few cases she’d tried before several judges left her with the impression that judges were kind and helpful. I thought, yes, who but a sadist bent on injuring children could possibly treat such a child with anything but kindness. I found myself wanting to protect her, and this lawyer, still as child, was taken under the wings of the judge, the same judge, I discovered, who had been the judge from hell for another participant in the same seminar.

My own parents were often bewildered as to how to deal with their rambunctious, raucous, rebellious offspring. I was never spanked nor sent to a corner. I do not remember any particular punishment at all. When those mutinous adolescent years came along my parents simply threw up their hands in surrender, and I left home at sixteen to conquer the world, which I viewed as a probability. I rebelled against the strict, religious teaching of my mother and absorbed the anger of my father against the “upper crust,” the moneyed class, who, were represented by the callus authority of his employers. I loved my father and hated the boss, that malevolence on high who could abuse that good, brave man. Early on I saw authority as the enemy and vowed never to be captured by power, and, of course, that included the power of the judge. My life with judges has not always been easy.

I have never heard a judge admonish a lawyer, “I am not your father, Mr. Jones. I am the judge.” Nor have I met a lawyer who has walked into the courtroom saying, “Remember, this man is not my father or my mother, this is not my father’s boss nor some heartless, demanding teacher. The relationship of judge and lawyer rolls on, year after year, the judge as the power-person, the lawyer as child, the lawyer struggling in the courtroom against the power of the judge and neither understanding much about the seeds of their relationship.

COMING SOON, Part 2 of 3: “The Dangerous Disease of Power”

More on winning—one can grow very thin eating one’s threats

I learn from whomever I can. I’ve told you repeatedly that I learn more from my dog and grandchildren than from all the bearded, gazing gurus. We can even learn from the French.

I’ve preached that we ought not—no never—motivate our competition. I am civil to my opponents in the courtroom. I never threaten. If I’m afraid, I do not try to cover it with macho. If I’m confused I am confused. So are most lawyers and most judges. But I never– no never—attempt to frighten my adversaries—or to anger them.

When we are frightened we instinctively hide, run, or attack. When we’re told we’re going to be smashed, as the French relay swimmers were foolish enough to threaten the Americans in the Olympics, and the experts say no scenario can be found leading to an American victory what is to be done? But the experts overlooked the imprudent French threat that motivated the Frenchmen’s competition down to their toenails, which was the length of the American’s victory–the small part of a second.

I want my opponents to be comfortable, complacent, content, yes, cozy. I want them to see castles in the sky. I want them thinking of their golf game, or running off to Vegas where what they do stays in Vegas. I do not want them threatened, frightened or angered. And where do we learn all of this? You see, we can learn—even from the French.

The secret to winning…so who are you?

When I enter the courtroom it never occurs to me that I could lose. Battles are to be won. The opponent is merely a necessary player, as is the judge. They are there because the battle could not proceed without them.

The idea of losing comes, in part, from a lack of preparation, which is a failure of self respect. Think of it as if you were a boxer. You have not trained. You have two inches of belly fat hanging over your shorts. Your cheeks are baggy. You puff going up the stairs. You brag a lot because that is all you have. This is a fighter who will lose because he does not respect himself sufficiently to prepare. If he were the trainer he wouldn’t allow a boxer such as he to enter the ring—he would care too much about his profession as a trainer to let an unprepared fighter he trains get slaughtered.

The refusal to prepare also reveals a lawyer who does not care deeply for the client. Jurors recognize an unprepared lawyer. It means the lawyer does not care much for this person whose life or welfare is in his charge. If the lawyer does not care, why should the jurors? The lawyer knows the client better than they. Caring is contagious. If the lawyer doesn’t care the jurors won’t care either.

I know lawyers with great talent who stagger out of bed in the morning not knowing for sure which case they are scheduled to try that day. But the fault is sometimes not the lawyer’s. The cost of operating a law office and to make an acceptable living from the trial of cases is hard at best, particularly in the criminal field. Most persons charged with crimes do not have the money to pay a lawyer for the necessary time it takes to adequately prepare a case – months, considering the investigation, the interviewing of witnesses, and the endless pretrial motions the lawyer faces in the modern trial, not to mention a trial that can last many weeks.

To survive financially, many lawyers are required to take too many cases from poor paying clients. Public defenders are often laden with scores of cases, many serious ones, without the time or resources to properly prepare while the prosecution may have all the time and resources necessary to win. As a consequence too many persons charged with serious crimes do not receive an adequate defense. They are often counseled to plead guilty, to make deals—the only bargaining chip they have—with their own lives. Take ten years from my life in exchange for the forty years that I will probably lose if I go to trial with an unprepared, unskilled, uncaring, overworked public defender or for that matter, a private attorney who has taken my case because he’s three months behind on the rent. A money system favors money, not justice.

A few lawyers are skilled enough that they can win some of their cases with nearly no preparation at all, but they know that many a client has suffered as a result — in a system that cannot provide justice for all, no matter how the myth is sold to the people.

I have said that when I enter the courtroom I do not consider the possibility I might lose. To lose one must give permission to his opponent to beat him. As a young lawyer I lost three civil cases in a row. The pain of losing was so severe I could not bear the thought of ever losing again. It became a life or death issue for me. Life as a loser became so unacceptable that I would rather quit the profession than continue down that road. I realized that preparation was a critical key.

I also began to understand that if one has a full sense of self, not a blown up conceit, but a person who makes mistakes, who is afraid, who can feel and care, who is as real as he can be, who is on the road to becoming a person—that person will be hard to beat in a courtroom or anywhere. He is not an intellectual muscle man or a phony sweet pea with the supercilious smile and a nose worn smooth from toadying the judge. He can be trusted and he speaks a language that jurors understand.

How do you beat such a lawyer? Be more of a person than he. I let my opponent worry about losing. It will take him into strange and dangerous places.

The defense of Geoffrey Fieger (or How to win against towering odds)

As many of you know I recently defended Geoffrey Fieger, that “scurrilous rebel” who dared take on this administration, who, in fact, took them all on, from the President of the United States to the Supreme Court of Michigan—even Michigan’s Attorney General, and who, as might be expected, given the record of this administration for using the Department of Justice to rid itself of its political enemies, faced an indictment (the last official act of Attorney General Gonzales) containing ten felony counts including those catch-all entrapment charges of conspiracy and obstruction of justice.A federal court jury acquitted Mr. Fieger on all ten counts.

Even before the opening statements the federal district judge instructed the jury that what Mr. Fieger had freely admitted, namely, reimbursing his employees, his friends and family for their contributions to John Edwards’ campaign for president, was illegal. Yes, illegal. That should do him in since the only defense remaining was that he did not act knowingly and willfully when he made these reimbursements that were in excess of $100,000. Mr. Fieger, by consensus the most brilliant trial lawyer in Michigan (and perhaps in America), had run for governor and must have known very well what the law was and chose to violate it.

The government spared no horses to eradicate this pest once they were provided a starting place, which turned out to be one of Fieger’s former employees who claimed he was fired because he refused to play the reimbursement game. The government came down on their target with many questionable subpoenas to the banks of those who had contributed and been reimbursed, after which the government, in the dark of night, descended on the Fieger employees with 80 or more FBI and IRS agents, threatened them, interrogated them, hauled them before a grand jury for further interrogations that covered more than two years, and finally charged Mr. Fieger with the ten felony counts mentioned above.

They had him. They had his employees as their witnesses, nearly all of whom had been given immunity. They charged his partner, Ven Johnson, with most of the same felonies believing he would flip on Fieger to save his own hide. They had an air-tight case, one they visualized would produce the bloody hide of Geoffrey Fieger as a trophy for the prosecutors’ wall. What happened?

The Fieger team, David Nevin, my great associate, Geoffrey Fieger and myself will present a two-day seminar, “Anatomy of a Trial,” at my ranch on September 5, 6. The ranch is located nine miles east of Dubois, Wyoming, in the mountains. We will discuss the defense, the tactics, the overriding philosophy we teach at Trial Lawyers College in the defense of a criminal case. You will hear from Geoffrey Fieger on how it is to be a defendant in criminal case, to lose all control, to put one’s self into the hands of another lawyer. You will also hear from me and David Nevin on how it is to defend a fellow trial lawyer of the will and nature of Mr. Fieger. The trout fishing is good too.

“ANATOMY OF A TRIAL” seminar

  • September 4-7, 2008
    (with seminar presentations on Sept. 5,6)
    Thunderhead Ranch
    Dubois, WY
    Call 800.688.1611 to register
    Seminar fee: $2,500 – proceeds support
    Trial Lawyers College, a 501 3c non-profit institution

Winning—the simple secret

Some of my tribe have been worried because I haven’t posted for a while. You’ll recall I’ve been writing about slavery. We are all slaves. Each of us has a slave specialty—slave to work, slave to debt, slave to guilt, slave to social pressure, slave to habit, slave to sick relationships, slave to….I try to be free, and sometimes I won’t post for a while. You have given me that permission. Don’t worry. I may be taking a walk through the forest in the early mornings when I usually write. But it is good to be missed.

Speaking of forests, in a jury trial lawyers become guides to the jurors through a frightening forest. The jurors do not even know the person sitting next to them. They have never been in a courtroom before, this strange place where lawyers argue according to strange rules that do not make sense. The jurors do not know where justice lies. They do not know who to believe, both sides pointing their accusatory long white fingers at their opponent.

There is a judge looking down at them dressed in a black robe. Nothing grows in the courtroom. The place is barren of life. Lawyers with soft hands that seemingly have never done an honest day’s work talk in a strange language, one with incomprehensible words that have no other purpose than to put the jurors down. The jurors have worries of their own, their families, their jobs, their debts that grow while they sit and listen to this senseless blather. Still they know the stakes are high, a person’s freedom or life or well being are at stake, and the jurors want to do the right thing.

I have said that it is as if the juror is about to embark on a journey through this forest and he or she has to decide which lawyer, as a guide, to follow. That’s why the only thing a trial lawyer has to sell to jurors is credibility. Without it, the most skilled, the most charismatic, the most comely, the best dressed, the highest paid, the lawyer with the highest IQ, the lawyer from the largest firm, even the one the judge seems to favor cannot win without credibility. It is also why the lawyer who may be frightened, inept, less skilled, not so eloquent, even second rate and sometimes befuddled will win every time if he or she is a credible person.

I have been criticized for being “too superficial.” I suppose that means that my own intelligence quotient is dragging behind or at least isn’t on display. But remember, we can think our way to any decision. The reasoning of the U.S. Supreme Court is a good example. The court’s numerous five to four decisions tells us that about half the court have thought themselves into the wrong decision and do so continuously. We can think ourselves into oblivion. Science is already knocking on that door with its invention of nuclear weapons and the manufacture and use of devices that will surely destroy this fragile, pretty little planet.

Our worst enemy is our own species. We have the ability to lie to and cheat our own and to thereby seriously injure or destroy each other. But we are also equipped with what I call “psychic feelers” that tell us when someone is attempting to deceive us.

Our worst enemy is our own species.  We have the ability to lie to and cheat our own and to thereby seriously injure or destroy each other.  But we are also equipped with what I call “psychic feelers” that tell us when someone is attempting to deceive us.  We can be hoodwinked for a day or two.  But in a trial that lasts for any length of time, the jurors begin to understand, even on a subconscious level, who is the most trustworthy.  Over the long haul, jurors usually can’t be fooled, and those who contend that this simple truth is superficial and does not give due credit to their own massive brain power will be those who use that same superiority to explain why they lost their last case, and the case before that.

I have often spoken of “the magic mirror.”  It reflects who we are with each other.  If the lawyer does not trust the jurors, the jurors will not trust the lawyer.  If the lawyer does not like the jurors, the jurors will respond in kind.  If the lawyer keeps secret his or her feelings the jurors will secret their own.  If the lawyer hides behind big words and tricky tactics the jurors will turn away from him.  How hard is this to understand?  I keep insisting that our role models should be our children.  I have often said I have learned more from my kids and my dogs than from all of the super minds out there.

So how can you win your next case? How can you win your next argument — in the courtroom or at home? How real and how credible can you be?