Wednesday, August 31, 2011


A lawyer who is "on the list" is available to be appointed as counsel for an indigent defendant. The pay sucks, but in this economy, money is money, and that's a direct quote from Oliver Wendell Holmes. One such attorney asked me for help. He was scheduled to be in my court the entire following week and was depending on the anticipated income. He had a problem. He was obligated to be on trial that same week in another court. I called the Presiding Judge and explained the situation. I asked, as a personal favor to me, that he set a new date. He, basically, told me to f--k off. I went into detail as to the looming financial hardship for the attorney but this ignited him all the more. We are a small community, he told me, and we schedule trials very carefully. Jurors have been summonsed to report on that date and "your boy" had plenty of notice. I suggested that the scales of fairness dictated one benign move: assign another case to the date in question, and reminded him of the possibility that the preceding case might last a day longer than planned. It was like trying to sell Rick Perry on the joys of being an atheist. What a schmuck.

Counsel was arguing a Motion to Suppress. To be kind, it was pure bullshit. Like the ranting of a deranged chimpanzee. I, in my pre-bench days, was in the well with all the other attorneys waiting to be heard, and was entertaining the thought of of this lawyer's head being in my rock garden. The judge, resembling the first pregnant male, interrupted him. "Do you have a case to support your theory?" (No) "Well, move on to something else!" (I don't have another argument). "I've heard enough. Next case." The attorney prayed for the ground beneath his feet to open and swallow him. His client was attempting to leap over the rail, axe in hand. What a way to make a living.

These are just two of the countless instances of judicial disrespect for the Bar which I have witnessed during my 40+ years of law practice. Why is this? What makes a judge prone to this type of conduct? The answer is surprisingly simple. The jurist has had no experience as a trial attorney. He, therefor, cannot imagine the stress involved, the pressure of having to be in two courts at the same time, the hope that a new client, who can pay a fee, will materialize before sundown. And this is very difficult to learn. He was absent the day that compassion was taught. And its mere thought scares the hell outta him. And this type of mold tends to harden. He is afraid of potential controversy. His mantra is: cover my own ass. Lawyers forum-shop around him whenever possible. His negative reputation grows.

Treat lawyers the way you wanted to be treated when you were in the pit, which solidifies the problem of never having been. Find a moral compass of fairness in your soul. Never forget that, beneath the robe, you have been, are and always will be, a lawyer yourself. Discover that courtesy and respect are contagious. NEVER make an attorney look bad. There, but for the grace of God. Look for ways to help these honorable members of the Bar who do not enjoy a consistent income, with longevity providing for pension. Don't be afraid to be amiable. Explain your decisions, and if heat comes, stay in the kitchen. Be a JUDGE.

Don't get me wrong. There are many jurists who match and adhere to these suggested standards. And their word is out. They enjoy the matchless gratification of grateful lawyers. They've been through it, and so they know. Their personal and professional rewards are substantial.

 And behold, attorneys and judges, all working together, to successfully benefit the system and the public. This can be a probable scenario, and, indeed,it must be.

Now, let me change collars and become a parishioner, again.

Saturday, August 27, 2011


In response to his frantic call, I met him in his favorite booth at his neighborhood tavern. I don't drink anymore so I ordered an O'Douls. (Been there, done that, it ain't the same.) Oh, well, there are other highs in life. My close friend looked awful. Unshaven, dark circles under his eyes, his face dragged down with anxiety and fear. The man was in the throes of something bad.

After thanking me for coming, he spilled it all out. He was madly in love with his fiance of two years and she had just left him.He had begged her to stay but she professed to have fallen out of love. He could neither understand nor get over it. A wreck. How could this happen, what can I do?

As I listened to the details, I tried to formulate, in advance, what to say to him. Couldn't be critical, he's made of glass. I revisited the basic essentials of just who I was. My reservoir of info was my own life's experience. You learn as you live. The eyes tell it all. Having chosen my path, I tried to help.

"For every man, there's a potential right woman. Maybe even more than one. The trick is to meet her at the right time. The right woman at the wrong time won't work. The wrong woman at the right time won't work. It has to be the right woman at the right time, even the second time around. When that happens, you'll know it. Nobody will have to call it to your attention. The pieces will all fit together, on their own. When you hug her, it will feel right. Nothing's your fault. Wrong person or wrong time or both."

It was tough to read whether I had reached him. He seemed calmer, perhaps fatalistic. He was still a bit liquored up. I took the last swig of my dreck drink. "Go home and to sleep. Call no one but me. See how you feel tomorrow." I drove him home. He didn't say a word but his mood reflected a change of thought direction. He called the next day, by no means a mountain of mirth, but he was no longer a threat to put his head in a gas oven. The perfect storm had weakened.

I was confident in what I had said because, in truth, I was reliving a September-of-my-years glorious chapter of my own life. After all, aren't we what we have lived through?

Friday, August 26, 2011


The father was the head of one of the five original crime Families. It bore his name. Books have been written about him. He was an iron-jawed icon of the American La Cosa Nostra. I represented his son.

Our relationship was good. Very. Whenever difficulties could be anticipated, I was there, with advice and a  preemptive strike. I kept the dogs at bay and my client out of court. On the personal side, we clicked just as well. Dinners and drinks were commonplace. We liked each other. My career was in its early stages, so this was heady stuff. I dug the juice when recognized as his attorney. The maitre 'd of every restaurant would jump to accommodate him and it rubbed off on me, for I was at his side. He would regale me with inside tales which I absorbed with fascination. His crew, following his lead, abandoned the wall of isolation and welcomed me as enjoying "connected" status. It was the major leagues of my chosen occupation.

One fine day, my secretary buzzed me to announce that Mr. (omitted) was here to see me. Great, I thought, what a workday boost! With adrenalin pumping, I opened my door with an infusion of excitement. What my eyes took in was in the name of the father.

Whoopseedoo! I tried to stay cool by resisting the urge to ask for an autograph. Here he was. In person, in my office. The Godfather. I tried to remember the movie and figure out which hand to grasp and kiss. This cat exuded power, like the president of Exxon-Mobil, and there was, indeed, a structural analogy to be drawn. He spoke. "I'm (omitted), and you are my son's lawyer." He extended his hand and I reciprocated, wondering if I could ever summon the strength or desire to loosen mine from his grip. One thing for sure, it would be one helluva time till the next wash.

I beckoned him to sit on one of the two chairs in front of my desk. And I, beginning to use my bean, chose to sit at his side rather than having a desk between us. I noticed that he was holding a wrinkled, brown paper bag.

"I'm here to thank you for looking after my boy. I'm grateful. He's my blood."

I explained to him how much I cared for his son and what a pleasure it was to be his lawyer. I wondered if he had brought Luca Brazzi with him. Should I tell him of my obsessive love for Frank Sinatra? He then asked if I had two glasses. I opened my built-in office bar/cabinet (those were glorious days) and produced them. He reached into the bag and took out a bottle--no labels. He filled each glass , raised his, and proclaimed,"chintanni." We both took healthy swigs. It burnt all the way down, but when it hit bottom, the buzz-glow took over. This was from the old country. He was bestowing an honor on me and I took it as such. A bit more warm conversation and then he left.

He has since passed, but the books about him are readily available. Often, a movie will reference him by name. History has cast him in a light apart from others holding similar positions in other Families. He is referred to not as a man of violence, but of honor. Stories abound with details as to how this trait was manifested, again and again.

I am quite aware of what traits are associated with men of his position. The name, "organized crime" has been condemned by law enforcement and the public, as well. To me, the key word is "organized." Its members would not rob you on the street for drug money. They didn't seek you out. If you borrowed from or gambled with them, you were putting yourself in jeopardy. Today, in the main, this organization no longer exists. It has been brought down. All for the better. I am, in no way, an endorser.

This memory stays with me. It was an experience. Using that word reminds me of this truism:

What is the secret of success?
Right decisions.
How do you make right decisions?
How do you get experience?
Wrong decisions.

Tuesday, August 23, 2011


Today, a  New York judge, at the request of the District Attorney, formally dismissed sexual assault charges against Dominique Strauss-Kahn. The D.A. claimed that persistent lying by his hotel maid accuser made it impossible to determine what really happened.

Of course, the defendant's being the former head of the International Monetary Fund and in line for the Presidency of France had nothing to do with it. And I'm dining, tonight, with the tooth fairy. Why is there no public criticism or condemnation? An earthquake occurred, today, on the east coast. A sign of anger from Above?

When the D.A. first got the story from the woman, he was enthusiastic enough to issue an arrest warrant and the politician was pinched on a plane about to depart for France. Then, came the "perp walk" as t.v. cameras rolled. Sure enough, France condemned this scruffy behavior. I'm confident that "channels" were clogged with pompous indignation, for, on French turf, this type of conduct is viewed as warranting nothing more than a shoulder shrug. Take a walk in Paris and you may see a couple copulating at the curb.

The "lying" referred to by the alleged victim were inconsistencies in details not pertaining to the key issue of the case: WAS THE B.J. CONSENSUAL OR WAS IT FORCED. DNA evidence unequivocally established the sexual encounter, yet the prosecutor referred to it as "inconclusive". Analyze that, for one long moment. What he meant was that it didn't address the consent issue. What a schmuck! Did he want the DNA to get up and dance to the tune of "He Forced Me"? The only way for that issue to have been resolved was to present the (alleged) victim's testimony to a jury which would assess her credibility. And, wouldn't it have been interesting to see whether the defendant chose to tell his side of the story, or had lost his cojones, which were so prominently displayed in the hotel room.

The jurisdiction of this case had become international. The maid never had a chance. I'll let it go. But, it bothers the hell outta me. And, I'm a criminal defense attorney, yet.

Oh, well, welcome to the real world.


A defendant says to the judge,"I'm not guilty, Your Honor. The indictment says I killed the guy with a gun. But that's not true; I knifed him to death." What am I talking about? Read on.

The issue is whether Clemens lied to Congress when he denied, under oath, that he had ever taken performance enhancing drugs. It was alleged that he had admitted doing just that to his teammate, Andy Petite, who told his wife of this conversation. Petite was scheduled to be a prosecution witness. Prior to trial, the judge ruled that this spousal communication was inadmissible as hearsay. The ruling was crystal clear.

During the Government's opening statement, a video was played for the jury. A simultaneous transcript of the video's content was reflected on the bottom of the screen. It showed a Congressman saying to Clemens,"Let me read to you what (Petite's) wife said in her affidavit: Andy told me he had a conversation with Roger Clemens in which Roger admitted to him using human growth hormones. Mr. Clemens, once again, I remind you, you are under oath. You have said your conversation with Mr. Petite never happened. If that was true, why would Laura Petite remember Andy telling her about this conversation?"
Remember,this question was reflected, verbatim, on the bottom of the screen.

At first, the defense didn't ask for a mistrial, but only for a limited instruction, and asked for time to compose it. Then, it was realized that the prosecution had "failed" to turn off the video equipment, so that the transcript of the Congressman's statement remained on the screen, in front of the jury, for the 3-5 minutes that counsel were at the bench. ( It was then that the defense asked for a mistrial.

The defense accused the Government of deliberately violating the court's ruling re the inadmissibility of Laura Petite's statement. The prosecution's response, in substance, was that since Mrs. Petite's words were recited by the Congressman in a question to Roger Clemens, rather than by Laura Petite herself, this was "not evidence" and therefore not in contravention of the judge's ruling. I'm gagging as I type this.

The judge went ballistic. He assailed the Government for "wanting to do whatever it could get away with. And I think a first-year law student would know that you can't bolster the credibility of one witness with clearly inadmissible statements." Concluding that Clemens could not get a fair trial before the chosen jurors, he declared a mistrial.

Usually, when a defendant requests a mistrial, double jeopardy does not kick in. The exception to this rule is when the conduct causing the mistrial was intentional. And here it clearly was. The prosecution's argument is laughable. The scathing remarks of the judge are consistent with this inescapable conclusion.
On September 2, 2011, a hearing will be held to resolve the question of a second trial. If the judge is mindful of how he felt and what he said on the final day of the aborted first trial, he will invoke the constitutional principle of double jeopardy and call it a day. Or he may decide, on a practical basis, that the prosecution's conduct, with its attending notoriety, is a bar to Clemens ever receiving a fair trial.

The government had its shot and blew it. I sense public sentiment to be on Clemens' side. Pack it in, Mr. U.S. Attorney and go after the bad guys. No rain-checks for this particular game.

In a homicide case, no legal difference between gun and knife. In this case, no difference between inadmissible hearsay and double inadmissible hearsay. The Government tried to sneak in through the back door and got caught. The judge will not allow a double-header.

Sunday, August 21, 2011


The attorney for Nafissatou Diallo has received a letter from the Manhattan District Attorney's office offering to meet with his client on August 22, 2011, one day before Strauss-Kahn's next scheduled court appearance. The letter states, in part,"Should she not be available or should she fail to attend I will assume that she does not wish to take advantage of this opportunity." (A.P. report of 8/21). The attorney told the New York Times that he thinks prosecutors wouldn't have asked for the meeting unless they planned to give his client bad news about the case.

What is the D.A.'s intent? To drop some or all of the charges or to steam fully ahead? Are they angered by the alleged victim's filing a civil action against Strauss-Kahn for money damages stemming from his alleged sexual assault? Or are they caving to political pressure? They have already publicly stated that Diallo had lied to them about her personal history and some critical details of the case. Not exactly a comfort zone for the alleged victim. The D.A. is Cyrus Vance, Jr., the son of a highly regarded former United States Secretary of State, and therefore not unaccustomed to the sway of political winds. Several variables are at play here.

It should be noted that Diallo's discrepancies are tangential at best. They do not pertain to the ultimate question to be decided: was a sexual assault perpetrated? The D.A. found probable cause that it was, by bringing formal charges in the first place. Subsequently, at least one other complainant (in France) has come forward with similar charges. Strauss-Kahn's denial of guilt formulates an issue of fact. The D.A. should not assume the role of Judge and Jury and unilaterally resolve this question.

A cleaning woman at a Manhattan hotel versus the former head of the International Monetary Fund and probable candidate for President of France. Now, that's a photo-finish competition, for sure. As a criminal defense attorney, I'd be expected to be rooting for a toss of all charges. Aha! Now rises the activism in me. My sense of right and wrong kicks in.

For the D.A. to fold up his tent would be an act of cowardice. There's a vast difference between disbelieving a complainant in the first instance, and dumping her at the alter after proposing marriage. Dismissal, or reduction of charges, would signify a vestige of public duty.

A District Attorney's wont is to portray himself as representing the "people".
I'm one of them.
I say, get on with it.
Let the closure of this matter be clean.

Saturday, August 20, 2011


This was in the days of my fast-track youth. I was the partner of the most famous criminal attorney in the country, bar none. We travelled, to where we had to be, in his Lear jet. The first drinks were poured in the midst of a mach 2 vertical takeoff. It was the big and very exciting time for me. I was 38 years old and on the cusp of great episodes in my life. My skills were ultra sharp and still being honed. My cup runeth over with self-confidence. I was where I had always dreamt about. I raced to work each day, put in a minimum of 12 hours, had a pop or two, and went home singing, waiting impatiently for the cycle to renew. Really big cases, in many states, extensively covered by the national media. Intoxicating stuff for a young man. I could part the Red Sea.

But the essence of all of this was a learning process, a maturation with its own slippery slope. I was feeling my oats; nothing could stop me.

The incident I'm about to relate is true in every detail. It was a reckless and foolhardy thing to do, as I now reflect on it, but the memory still evokes a sentiment of daring and excitement which still turns me on. The cop inside my id couldn't stop me, and, truth be told, I'm glad I did it.

We represented an imprisoned and aging Mafia Don who had been convicted of murder and sentenced to life. I will not supply his name for it is embedded in the folklore of organized crime in Cleveland, Ohio. HINT: SEE THE MOVIE "KILL THE IRISHMAN" FOR CONCLUSIVE CLUES.

During his trial, the prosecutor was allowed to hammer home, in his closing, the fact that the defendant had not testified in his own behalf, which served as the last nail in our client's coffin. In those days, it was not error to do that and it was, obviously, the prosecutor's most deadly weapon. Today, it's an automatic mistrial--an absolute no-no, with the D.A. severely sanctioned. Our Petition for Habeas Corpus was predicated on that ground.

The case was to be heard in the Cleveland Federal District Court. Because of the lawyers involved, the issues presented and the notoriety of the defendant, the courtroom was packed with family members, spectators and hordes of media affiliates. We entered and vigorously shook the hand of our client to the sound of hundreds of cameras being snapped. This was a big deal in Cleveland.

We both argued the case with much vigor and emotion, wrapping ourselves in the Constitution and Bill of Rights. We pulled out all the stops and the media recorded every word. After both sides had presented their positions, the Court took the matter under advisement, we again shook the hand of the Don and walked into the hall.  My partner explained that he had to fly to Chicago on another case and that, therefore, I was to fly home commercially. He dashed into a waiting car and I walked down the courthouse steps, looking for a cab. I was suddenly surrounded by the local CBS affiliate reporters who asked me to come to their studio and shoot a T.V. interview for their 5:30 news slot in the hope that it would be picked up by Walter Cronkite's CBS EVENING NEWS. My answer: CERTAINLY!

Before hailing a cab, my trained eyes sought out a bar near the courthouse. I had learned that in every city or town, there is a bar near whatever court you've been in. You could spot it yourself or simply follow the line of criminal defense attorneys who could sniff out a bar in the Sinai Desert. I perched on a stool at the tavern of choice and wolfed down a double vodka and tonic. The bartender's name must have been "Heavy Handed Harry" because the establishment lost money on this drink. Whee! What a nice little pick-me-upper. Into the mouth and over the gums, watch out stomach, here it comes. I was O.K.

I cabbed to the studio where everybody was waiting for me, ready to get started. I sat in my chair and was quickly miked while the interviewer sat across from me. He seemed a bit nervous but not so the technicians, camera men sound and lighting people. These were the pros who had been there, done that and they were outstandingly cool.

The interviewer suggested that we get right to it and advised me to relax and to speak the truth. A tall guy in back suddenly said,"We're on in five, four, three, two and his finger pointed. The red light on the camera went on and we were shooting.

"Tell me, Attorney Alch, do you think your efforts today will result in the release of your client?"

A soft lobbing pitch right over the plate, begging me to hit it out of the park. I smiled, took a deep breadth and suddenly, the bad boy inside me offered a response which lit my fire. It was something I had fantasized many times and always wondered if I would have the courage to do. Perhaps greased by the liquid fortifier and the turn-on of being live, on the air, I decided to go for it, lest I never have the chance again.

I sat up straight, allowed the question time for digestion, brought a smile of kindness to my eyes and, in a firm voice, pregnant with conviction, said,"Personally, I don't give a f--k!"

The questioner's face froze in sweaty white. But those cool camera men, sound guys,etc. dropped straight to the floor and began rolling around, giving forth bellowing sounds of unrestrained, straight from the gut, hysteria. I was so goddamn tickled with what I had done, I was impervious to negativity.

The interviewer snapped out of his trance and fired,"For all you knew, that could have been a live feed to the network!" My reaction was to join in the cascades of laughter still convulsing those cool cats of the crew.

I'm afraid that I can't file this away in the Lessons Learned folder. I'm much older now which supposedly makes me wiser and more conservative. but, I must confess, me being me, that were the same opportunity to present itself again, I'd pull the same trigger.

How bad can a thing be, if it serves as a dynamite story over the years, the passage of time, notwithstanding. If that's who you are, grab and hold onto it. A memory keepsake.

Thursday, August 18, 2011


Classes are set to resume for the Fall semester. Students gird up for a year of study, learning and preparing for the Bar exam. They shake off the lethargy of summer and hope that warm weather will extend indefinitely. They renew solid friendships with classmates, choose courses and check out the professors who teach them. Their feet are on the ground and they are infused with the enthusiastic ambition which is the trademark of today's young men and women. They want to help themselves and each other.

As a member of the Adjunct Faculty, my feelings run parallel. Teaching is not a job. It is a self-fulfilling labor of love. Addressing my students fills me with adrenalin. It's an exhilarating experience, similar to presenting a closing argument to a jury. I have a captive audience and no one is going to object. Candidly, it's quite a high. But not without responsibilities. I must hold their interest so they can get what I'm saying and can "get" me. The two go together. Enjoying a class is a prerequisite of successful communication. I give it my all and its a joy to do so, for this is what I've been trained to do. Being a stand-up comic and a criminal trial advocate has prepared me well for the task at hand. In one forum or another, it still smacks of showbiz.

Yet, I have another propelling motivation. I am humbly grateful. I love the job. Selfishly speaking, it fulfills me and I want to make that a two way street. I treat students with courtesy and respect, for they are about to become lawyers. They shall soon be my peers, and I want my enthusiasm for the law to be contagious. I receive many letters from former students and keep them all, for they are very validating. I stress my availability, should they ever wish to contact me. A delightful part of teaching. Inevitably, a bond develops between me and my class. I find it healthy.

So, I'm rarin' to go. If the students' enthusiasm matches mine, things will be just fine.


Once upon a time, several years ago, my valium was going to the movies.

Like a retreat to the safety of the womb, the comforting darkness afforded me a sense of protective insulation. I could review the circumstances of my life, past and present, and try to achieve some form of serenity apart from the daily stress which accompanies fulfilling responsibilities and staying on course. No phones to answer, no meetings to take, the standard of "leave me alone for a while" hangs on the door of the cubbyhole you build for yourself. Early show, sparse crowd, stadium seats impervious to blocking, it was my America. Bucket of delicious popcorn, buttered and salted to perfection. Just hand the usher my change of address card. The number of crucial crossroads in your life are easy enough to remember and review: did I screw up or do the right thing? Sometimes, you can never be sure. You can only accept the consequences and move on. You are your harshest critic and if feel you've done your best, with an absence of malice, that warrants a damn high score and enables you to push the "stop" button on the beat-yourself-up machine.

If you're unlucky, some of the faces on the screen remind you of people in your past with whom you wish you hadn't f---ed up. Scabs torn off wounds thought healed, but maybe the revolving door will give you a second chance to see if you would do things differentially. Tomorrow's sun will rise and you never know what the new tide will bring in. Analyzing with yourself can be quite therapeutic.

And then, almost by accident, you realize that what you are doing comes pretty close to praying. You're discussing the pros and cons of your life in a searching-for-an-answer way, and hoping to achieve some resolve. The results must come down on the positive side of the ledger and you are energized by an endorphin rush which blows away anxiety and your attitude is morphed into one of confidence.

The picture ends, up go the lights and you file out to the blinding sun of reality. You're relaxed, with a spring to your step, not with you, coming in. You notice that the people walking out with you are silent, heads bowed and seemingly directionless. They hadn't done anything more than intently watch the film. Their brows more furrowed than ever. They hadn't made an experience  of their experience. To them, a movie house could never bear any resemblance to a place of worship. They lost out on all the fun.

And you got more than your ticket's moneys worth. A serious talk with yourself is worth ten times the price. You never know when you're entering an episode of self intervention.

A two hour escape. Won't do you any harm.

Tuesday, August 16, 2011


                                                           RICK PERRY
Sheeyit, Kemosabee. Ah kin win this election easier than a hot knife cuttin' through buttah. Sheeyit!
God dammit all to hell! Today, (putting his hand in his pants' pocket) ah feel cocky--and ah mean bigtime.
Just rode back from the grand concourse with my hound dog Geetah, and ah need the feel of hay under my boots so ah kin stand on it. Ah'm a good ole Texas boy and the last time you saw a face like mine, a jockey was feedin' it. To create jobs, ah will require factories to manufacture wooden pants. No more zippers---just swingin' doors.  Oops, gotta go now, gotta take this call. It's from God.

                                                          MITT ROMNEY
Corporations are people. Lampposts are people. Mailboxes are people. But, my friends, people are not people. Today is Tuesday, so happy Wednesday. When I say "yes", I mean "bowels." Which reminds me, got to get this economy running again. I love my brother Sy and my sister Sue. And if you knew Suzy like I know Suzy, her father would be after you, toozy. The Latin Quarter is a foreign coin and Yale is the Swedish word for prison.  Steeples are not people. We need a change, my friends, like of my mind. Forget what I said yesterday. I have. How do you like my Armani jeans? When I get elected, I shall take over the country and fire all the citizens. As Mrs. Cassidy said to Mr. Cassidy, "let's hopalong".

                                                         MICHELE BACHMANN
I am a very religious cook. Everything I cook is a burnt offering. I'm the only woman in the world who can burn a stove. I don't make pot roast, I make roast pot. And only I can screw-up Cornflakes. My husband always frowns because he doesn't want to look gay. I'm so short, he's nuts over me. Let's make Obama a one (thump) term (thump) president. I believe in the constitution with my heart and soul. I just don't understand it. What a nerve, telling Ben Franklin to go fly a kite. All citizens of Iowa owe money. Kentucky is the capitol of Japan. As for my qualifications, I can swat a gnat with one hand. My vice-president shall be Elvis Presley. Must leave now--I'm meeting my husband at the pawn shop, under the balls.
                                                          That's all, folks.


Saturday, August 13, 2011


A judge's son was facing a probation revocation hearing, in a court to which his father was permanently assigned. Accordingly, his father was designated to another court on that day and I was appointed to sit in his place and preside over the case. It was a court in the western part of the state at which I had never before sat. It was an appointment inherently recognizing perceived responsibility, and I received it as such.

As I drove to the court early that morning, I was of a singular mindset. A judge's son was not going to jail on my watch. I offer this as neither confessional nor boast, but rather as self-defination. That's who I am.

At 8:45 a.m., before taking the bench, I summonsed D.A. and defense attorney to my chambers. I was the new kid on the block. The clerk, probation chief and court officer were also in attendance. They were obviously trying to take my measure. The defendant had been put on probation pursuant to a misdemeanor conviction of one year ago. He had just been arrested for disorderly conduct stemming from public intoxication. He was twenty-one years of age and booze was his problem. The issue before me: whether to deem his probation as having been violated and impose sanctions, one option being incarceration.

I began: "Gentlemen, I am quite aware of the fact that the defendant is the son of a judge who sits at this court. Be advised that this shall in no way be a factor in my consideration of what justice requires. It shall in no way warrant any special or favorable treatment. On the other hand, that is a two way street, for it shall not reflect against him, under any circumstances. Is that understood?" Everyone nodded, affirmatively. I had set the table.

I heard from both sides, intentionally starting with the prosecutor. I wanted to take his temperature. It was clear, from his manner and tone, that not only was he not out for blood, he was also acutely aware of the practical consequences involved. So was the defense counsel, for he asked for no specific relief, but rather left it to my discretion. Sub rosa messages, back and forth, taking their cues from me. I was over the hump, with a smooth road ahead.

Relying on the presumption of innocence, I found no violation of probation. In open court, I heard from both sides on the record,and the matter was dismissed. During the lunch break, completely by chance, I was approached by the defendant as we passed each other on the street. As he began to thank me, I interrupted him and delivered a scathing lecture on how booze was destroying his life. "If you f--k up again, you'll go in." He said that he understood and walked away.

Several months later, his attorney appeared before me on my home turf. He asked for a sidebar and reported that his client had been clean and sober, and trouble free, since our conversation, of which he had immediately been informed.

Later still, I attended a judicial function and saw my colleague across the room. He said nothing. He didn't have to. His eyes conveyed deep and sincere gratitude. But that had not been my motivation. I had done what I perceived to be the right thing.

I worry not what criticism this post might engender. Comes with the territory. And, besides, if the situation had been reversed, I'd hope for reciprocal treatment. We're all human.

Thursday, August 11, 2011


After the 10 p.m. break, there was a noticeable change in Mitt Romney's demeanor. He was no longer the smiling Mr. Charm, fancifully exchanging quips and barbs. He straightened up and tried to look presidential. No more humor.

 The reason for this was Jon Huntsman.

Governor/Ambassador Huntsman, in his first national appearance, was a breath of fresh air. Looking straight into the camera, not bobbing and weaving, he answered questions forthrightly and with conviction, unadorned by superficial attempts to be a political chameleon. He rose above the fray, taking no pot-shots at his rivals. His closing statement was Churchillian. A man of substance and qualification. Nor was he a target of his competitors, for how can you criticize unassailable views?

He is of a breed not familiar to the rants of ultra-conservatives. To succumb to labels, he is a moderate Republican, reminiscent of Nelson Rockefeller and, yes, Ronald Reagan. The bitter irony of this is that, in the poisonous prevailing atmosphere of extremism, he may be viewed as too middle-of-the-road to succeed.

What a shame this would be. From my seat, he is the only Republican candidate who can unseat President Obama. It's still early. There's time for voter education. He has nothing to fear from public scrutiny. He's the right stuff. The Fox News Network completely ignored him in its post-debate comments. What more proof do you need?

Watch him. He's just getting started.

Wednesday, August 10, 2011


The most important thing one learns at law school is the ability to analyze. It's an asset more valuable than talent and ability. It steers you through the roughest waters. If you get it right and stay on course, you'll formulate and present the strongest case possible. To put it another way, you'll be doing your best. Come with me, now, on this difficult, and sometimes treacherous journey of preparation and trial.

It was a difficult case, it was an impossible case. (What the dickens?) It was the first time that a Marine was court-martialed for gross misconduct during the Vietnam war. Most parties to this case are still with us. Accordingly, I shall intentionally omit names, dates and places. It was that controversial. Many said it was unpatriotic to represent the accused.  But, I am a criminal defense attorney and I had a job to do.

I put together the facts: My client (I'll call him "Pat") had joined the Marines as a private first class and quickly earned a poor reputation. During basic training, he stood out because of his lack of stamina. He was unable to complete, or finish, many endurance tests. It was apparent that he was not physically qualified to be a Marine. Yet, no one intervened.

Two weeks after arriving in Vietnam, his company was heavily engaged. He was consistently unable to keep up with his unit and had fallen behind, many times. Ultimately, he dropped to the ground. A Corpsman found nothing medically wrong with him. His superior officer fired his weapon at Pat's feet in a vain attempt to get him up. It was decided to move on without him, with rear elements instructed to return him to base.

He disappeared. Only his weapon and ammunition were found.

Nine months later, a North Vietnamese broadcast, beamed to U.S. forces in Vietnam, was intercepted by the Foreign Broadcasting Information service. It contained a statement by Pat, urging American troops to stop fighting and stage demonstrations against the war. As long as the circumstances of the broadcast remained unknown, he was continued in a P.O.W. status and, in accordance with Marine Corps policy, was promoted at the same rate as his non-prisoner contemporaries. (This was difficult to explain at trial in the context of the charges.)

Pat had been captured and held in Hanoi for eighteen months. He was then released for reasons not explained by the North Vietnamese. At the time of his release, he had been promoted to the rank of Sergeant. Holding a North Vietnam passport, he was escorted to Sweden, with intermediate stops in Peking and Moscow. He was then presented at a press conference in Stockholm where he echoed his previous anti-war statements.

He, eventually returned to the United States and was placed under military arrest. He was charged with: deserting his unit in combat, running from the enemy and communicating with the enemy by broadcasting disloyal statements. To say the least, I had my work cut out for me.

The most incriminating non-testamonial evidence was an audio recording of the statements made and broadcast, and a video tape of the Stockholm press conference. Both portrayed Pat making disloyal statements. I tackled them one by one.

With regard to the recorded statement, Pat said that he was placed in a small room and seated at a desk. In walked a North Vietnamese officer who placed two things on the table: a typed document of several pages, and a tape recorder. The officer ordered Pat to read the statement into the recorder. When Pat did not respond to this command, the officer unholstered his weapon, placed it against Pat's head and repeated his order. It was under these circumstances that the audio recording was made. It could be authenticated by anyone who could recognize Pat's voice and , besides, Pat had admitted making it when he was first debriefed. It was coming in. How to deal with it?

Pat insisted that I was the only person to whom he had explained the gun-to-head threat. I kept asking him, "Have you ever mentioned this to anybody else?" His answer remained constant. He had not. The bell of experience, comfortably ensconced in my brain, sounded an alert. I had, on two prior occasions, relied upon the defense of "duress". As it could apply to this case, it declared that if one were forced to commit an unlawful act under, a reasonable fear that he would be killed should he disobey, his conduct would not constitute a criminal offense. I placed that arrow in my priority quiver. Regarding the press conference video, I'd play that one by honed instinct.

Pat was being held in the stockade on the Marine base which served as the trial forum. Each day, he would be marched to the courtroom handcuffed and in leg irons.A double escort was required for his own protection. Suffice it to say, every Marine that he passed had to resist the urge to strangle him on sight. The tension was tangible.

On the first day, luck came my way. Obviously, you can't plan on this happening and you can take no credit for it. Sometimes, negative circumstances happen. It tends, over the long haul, to even itself up.
I learned that the Judge was not a Marine. He was a  Navy Captain, from the JAG Corps (himself a lawyer), scheduled to retire in six months. Go figure. You didn't have to be a rocket scientist to appreciate the attitude of a Marine jury. Barricades would be necessary to prevent them from jumping over the railing, lynching rope in hand. I elected, right there and then, to waive a jury. The case would be decided by the Navy lawyer, alone. One other prompt for this move: the Captain had a nice face. This, to me, signaled nice guy.

The trial began. Each Government witness testified as to the numerous times that Pat had failed in performance, during training and in combat. This followed their statements which I had been afforded. My cross was a repeat of direct, only with more emphasis. I kept pounding home Pat's physical shortcomings and the over-the-top reactions of his superiors. Over and over again, with each prosecution witness. When I elicited the details of Pat being shot at after having collapsed, I detected the Judge biting his lower lip and wincing.

The Government introduced the audio tape and played it for the judge. They then rested. No attempt to address the press conference video. I called my only witness. My client. He was as prepared as he could be. My simple instruction had been: don't bob and weave, just tell the truth. My ace in the hole was "duress". I asked the questions, gone over so many times in rehearsal (that's the way to prep your witness) as I led him to the making of the audio tape. He related how the gun was held to his head and that this was why he read the statement. I heard a stir behind me. This testimony was obviously a surprise. The cross-examination centered on, and attacked this (now realized) crucial aspect of the case. Pat stood his ground. A truth teller is a most formidable target. Shaken off stride, the prosecutor asked Pat if he recalled the Stockholm press conference. Bad move. He simply should have asked an "isn't it a fact" question. He had now, unnecessarily, made Pat's memory the test of admissibility. Pat shot me a glance. I closed my eyes, trying to send a symbol of negativity. He looked back at his inquisitor and replied, "no".

The prosecutor asked permission to turn the window shades down and and the lights off. He was going to play the video in an attempt to refresh Pat's recollection. As they were setting up, I walked by the witness stand and whispered "the next answer is no".

The tape was played, clearly showing Pat at a table, surrounded by microphones, before a crowd of reporters, speaking to them. No audio. The Government had obtained (captured) just a video recording. When it was over, the prosecutor sarcastically asked, "does that refresh your recollection?" The answer: "no".

The prosecutor was stunned. He moved the admission of the video. I objected on the ground that the Government could not verify its authenticity. And, of course they couldn't. Nobody could say that they were there and had personal knowledge that the video was accurate. The Judge did not admit it. Similarly, nobody could dispute the "gun-in-the-head" incident. Nobody had been at the scene.

The evidence concluded and closing arguments were presented. The Judge took a recess of thirty minutes and returned to announce his verdict. Not guilty on all counts.

Marine brass have referred to the trial as the "greatest miscarriage of justice ever witnessed in the Marine Corps." I'm human. I am not a robot. But I had, long ago, understood, that to be a criminal defense attorney, you must have the ability to place your personal opinions to one side and be able to extend your best efforts, your feelings, notwithstanding. If you can't, practice civil law.

Did the outcome thrill me to the heavens? No. Would I have committed suicide had my client been convicted? No. My vocation was of choice. I did my job. Being criticized goes with it.

Saturday, August 6, 2011


The Clerk was "calling the list." All the cases scheduled to be heard that day. I had a copy before me on the Bench, and was following the names of the defendants. Something pulled me up short.
Defendant: Lawrence Ryder. For the defense: Attorney William Ryder. The charge: possession of pot.

I had known Bill Ryder for many years. As a peer. He was an outstanding criminal defense attorney, a veteran of the wars, with an excellent reputation which preceded him, everywhere. We had tried double-defendant cases together and the memories were alive and well in my mind. It's an exhilarating experience to try a case with a pro. No stepping on each other's toes, being able to anticipate moves and displaying our individual talents while remaining completely in sync.

I looked around the courtroom and spotted him, easily. He wasn't in the lawyer's well, but, rather, with the spectators, sitting beside a very young man. When the case was called, I interjected, "I'll see Counsel in my chambers." The Clerk announced, "Court's in recess", and in we all went: both counsel, a Probation Officer and my Court Officer. No tape recorder. This was off the record, per my long-standing rule as to how a lobby conference should be conducted. Relax and be able to talk freely. No bullshit.

"Billy, is this your kid?" He nodded "yes". I turned to the D.A. whom I had grown to know well, as with all the prosecutors who appeared before me on a regular basis. I always strived for a relationship of mutual respect with all lawyers, on both sides. Nice to have that to rely on. My personal code of conduct was to treat attorneys the way I wanted to be treated when I was in the pit. After all, I reasoned, a Judge was a lawyer who had asked the Governor for a job, and had gotten it. But, don't forget where you came from. The Robe, notwithstanding, you still can't walk on water.

"I have known Billy a long time. Through many trials together. You have a job to do and don't be afraid to do it. I may go the other way, but you will never piss me off. Billy, what do you want me to do? Dismiss the case right here and now?"

The prosecutor was in no way surprised. Like I say, he knew me and the fact that my judicial scales would inevitably balance. His day would come.

"Thanks, Your Honor, but no thanks. I stand behind my son, 100%. But I want to bring him a little close to the flame. Would you continue the case for six months and dismiss it then if there's no further problems? But, today, give him a stern lecture, in open court."
The D.A's eyes showed the slightest hint of a smile, and out we went. It went down as scripted, and Billy marched his chastened son out of the courtroom. No more transgressions.

You can take a Judge out of the criminal defense world, but you can't take the criminal defense world out of a Judge. Not on the experience side of the ledger. The attorneys are somewhat of a strange bunch. Maybe that's why they tend to stick together. Was I an "activist' Judge that day? I don't think so. Not when you look at it through the eyes of a conscience.

Bottom line; I did what I thought was the right thing to do. You sleep well. And if heat comes, you can deal with it without furrowing your brow. Amen.

Wednesday, August 3, 2011


Before two heads of state meet for a "summit", their top aides have done the grunt work of setting in place a framework of an agreement. A slight tuning might be required, but a deal has been reached. Everything is set for the two national leaders to smile, sit, shake hands and sign the papers. The possibility of failure has been obviated by the pre-meeting prep work. Both sides look good.

When President Obama took center stage to lead the Democrats in the Battle of the Budget, no such preliminary groundwork had been laid by Democratic staffers. The President told the public how he wanted the debt relief bill to be structured and commenced negotiations with House Speaker John Boehner. But, there were no stepping-stone agreements upon which they could rely for traction. Two powerful men going mano a mano with so little in common to serve as a first step of agreeing to anything.

The nation was told that both men were putting together a "grand design", a big comprehensive agreement that they (and their parties) could salute as solving most of the problems of the economy and, simultaneously, remedying the debt ceiling headache. A crucial meeting ended with at least Boehner believing that such a deal had been struck. And he said so to one thousand microphones. The President was rather muted on this important point and was equivocal. The next day, they met again. Boehner angrily walked out protesting,"We had a deal but the President now wants more." President Obama was not that specific, saying, merely, that the talks had broken down. From this seat, Boehner's emotional reaction was more consistent with his version of the goal posts having been moved by the President. In any event, President Obama had lost all credibility and prowess as a negotiator, in the eyes of leading Republicans.

What then followed was a ratcheting up of the ideological bent of the Tea Party as congressional etiquette took a back seat to hostile words and flaring tempers. Venom was the drink of the day as long-standing relationships of congressional friendships began to twist tortuously in the wind. All hell was breaking loose as the doomsday clock approached a time of calamity. The chaos had to be calmed.

Enter Vice President Joe Biden. Republican Minority Leader, Senator Mitch McConnell immediately hailed him as a man with whom he could negotiate. A perceived Obama put-down, but the train was on the tracks. Biden and McConnell had nurtured a close relationship in the Senate, for many years, fostered on trust. They began negotiating in good faith and fulfilled the additional duty of convincing their own senatorial colleagues to listen to what they were suggesting and why. Especially for Biden was this a most difficult task. The Democrats were up in arms, angry as hell at what they perceived to be an Obama cave to the reckless and wanton TP. Biden heard all of them out and then did his best not to justify the agreement he was hatching out with McConnell, but to explain that their proposals were less extreme than the goals of the TP. He stressed the impossibility of trying to negotiate with "terrorists" (his words) and slowly made his colleagues agree to cut their losses and follow his lead. And follow him, they did. The deal was finalized, passed both Senate and House and fast tracked to the President for his signature.

As the smoke clears, does there appear any Democratic heroes? Just one. A man who, through years of dedicated service, had cultivated mucho respect from all with whom he had contact and done business.

The President looks grim. And well he should. He used the bully pulpit to set forth what he wanted and would fight for, but he didn't, he couldn't deliver. He underestimated.the insanity of the TP, which was willing to let the country slide off a cliff, just to make their point. And they played that hand, without blinking, and they won.

The picture that will stay in my mind is that of the Vice President, looking tall and handsome and good, shuttling back and forth in those final desperate hours, while the White House crossed its fingers and toes. He's the best and only man to be a heartbeat away from the Presidency.

And, let's face it. With that smile, man, he's "got it"

Tuesday, August 2, 2011


More often than you think, events, over which you have no control, determine the outcome of a criminal case. Especially when your client is "connected". Moves will often be made without your knowledge and consent, for two reasons. What is done is illegal and he therefore knows that you will not approve. If, somehow, you do know, you immediately investigate all avenues of self-insulation, even if it means seeking permission to withdraw from the case. Naturally, the attorney-client privilege, and your desire to remain amongst the living, prevent you from using the discovered imminent illegality as the reason for wanting out. You, therefore, tell the judge that "irreconcilable differences" have arisen, and hope that he is hip enough to scent the seriousness of the situation and won't break your balls. But, more often than not, your understanding of an unanticipated development comes after the fact, and you're clean.

A murder case in The Big Apple. I was prepared and ready to go. The prosecutor had been, was now, and would always be a consummate pr-ck. A mean, true-believer, sonovabitch who was out for blood. On the day of trial, as I entered the courtroom, the clerk advised that the judge wanted to see me in his chambers. As I entered the lobby, the D.A. was already there. Bad sign. The judge, looking very somber and distressed, told me that the D.A. was prepared to reduce the charge to assault and battery by means of a deadly weapon and would agree to straight probation if my client pled guilty. Unbelievable! I said I would talk to my client.

I immediately knew what must have happened. The state's percipient witness had been "gotten to". My client was a card-carrying member of a notorious and feared crew. Of Irish descent, and therefore not made guys, but connected up the ying-yang. I explained the prosecution's offer but the client seemed perplexed. I said,"Call someone." This was the time of telephone taps and he demurred. I had a heavy decision to make. Should I take the too-good-to-be-true deal or rely on my instincts and call the D.A's bluff. At stake were two lives. Dig it? Business from New York had been good to me but an obituary doesn't accept referrals. I went with my gut.

"Your Honor, the defendant stands ready for trial." The judge looked at me, incredulously.
"Do you believe you are acting in the best interests of your client?"
The D.A's face was crimson. I pulled the trigger. "I do, Your Honor".

We went back into the courtroom. The prosecutor stated that The People were not ready to go forward. and asked that the case be dismissed. I insisted that the dismissal be "with prejudice" (no retrial possible). And, so it was, that the client's crew became repeat clients.

This kind of stuff is not taught in law schools. It comes with that amount of experience which produces an inner barometer for grasping intangibles and acting upon them. No timetable for this.

Every trial teaches you a lesson and leaves its own mark. An accumulation of these battle scars eventually makes you a veteran. Then, and only then, might you be endowed with this sixth sense. Don't get me wrong. The journey is a ball.