WHAT MAKES A BAD JUDGE

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.

TIMING IS EVERYTHING

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?

A DAY IN "THE LIFE"

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?
Experience.
How do you get experience?
Wrong decisions.

STRAUSS-KAHN AVOIDS THE KAN

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.

WHAT THE JUDGE WILL DO IN THE ROGER CLEMENS CASE

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. (TalkLeft.com). 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.

STRAUSS-KAHN CHARGES--TRY THE DAMNED CASE!

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.

THE LAWYER CONFESSES: "THE DEVIL MADE ME DO IT"

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.