1 February 2016

Lawyering Down

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Yeah. You.

I want to sue Dick Wolf.

Even if Dick’s name isn’t a household regular, his various Law and Order permutations:  regular, Special Victims Unit and Criminal Intent are, along with the “Clung Clung” that sets off every episode.

The creator of the long-standing “ripped from the headlines” drama series did a devastating disservice to my – and the public’s – understanding  of the criminal defense attorney.  All of Dick’s defense counsel characters are so zealous that they might piss off even the ACLU.

If Dick Wolf ever descended to “the Tombs,” the underground dungeon of the NYPD’s Central Booking, where almost none of his perps ever go, he’d see that his firebrand defenders never existed; they are as fictitious as Shrek.

Close to twenty criminal defense lawyers have represented me, so I know their ways. Law and Order attorneys do five things that I have yet to witness at all. These are my stories, shortened, of course.  Clung Clung.

1.  MAINTAIN PRESENCE IN POLICE INTERROGATIONS

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The only times I ever saw attorneys in police stations were when they were being arrested themselves.

But on Law and Order it seems like the Legal Aid Society sublets space from the cops.  A suspect asks for an attorney and one appears, one already familiar with the circumstances of the crime and loaded up with cites and statutes to thwart not only a conviction, but the suspect’s impending arrest.  Then they leave headquarters with their new clients in tow.

When a suspect in Connecticut invokes his Fifth and Sixth Amendment rights to shut up and lawyer up, a lawyer appears, but only after police have cuffed and charged his new client, slapped his ass with an obscene bond amount and scheduled his arraignment.  It’s true that all defendants get an attorney…just a couple of days later as they sit in jail.  But their new attorneys won’t know their clients’ names or the facts of their cases.  That knowledge develops months later, if at all.

This is usually the case with appointed counsel, but even high-priced attorneys refuse to sully their white shoes by entering a police barracks.  My father forked ten grand over to Attorney Skin; we expected him to accompany me to police headquarters with some countervailing evidence.

“I don’t deal with cops,” he told my father.

“Don’t lawyers have to deal with cops?” I asked my father when he relayed Attorney Skin’s message. It was my first time. What did I know?

Skin never needed to confront cops, I learned later.  When he said he didn’t deal with cops he meant that law enforcement, once charges are filed, leaves the scene; an arrest – not a conviction – closes an investigation.  When Detective Mike Logan (played by Chris Noth – he was my favorite) returns again and again to the district attorneys’ offices, continuing to search out the guilty party even after someone’s been arrested, and even goes head to head with defense attorneys, it’s dramatic construction, not real life.

When someone gives you advice that you shouldn’t talk to police, what that person’s really saying is that no lawyer will be there with you when they try to interrogate you or book you. You’re on your own.

2. KNOW FACTS OF CASES BETTER THAN THEIR CLIENTS

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“But he wasn’t at the bodega at 1:45.  He’s on the tape sixteen minutes later.  He couldn’t have killed your vic.”  All of Law and Order’s defense attorneys lead off with a statement like this, directly to the police no less.  The client sits silent, dumbfounded.  He doesn’t even remember going to the bodega.

We had picked the jury.  My attorney, Eyes, rinsed the flopsweat that covered her after a pre-trial motion hearing (one in which she filed no motions, no objections, nothing).  The state was scheduled to start presenting evidence in fourteen hours when she called me, advising against trial.

“I just don’t see how you’re going to beat this assault charge,” Attorney Eyes told me.

“But…I’m not charged with assault.  This is an identity theft case.”

“Oh?”

Apparently Attorney Eyes never read any police reports in my case, ever.  Oh?  Oh no.

3. ARM THEMSELVES WITH WELL-RESEARCHED LEGAL MEMORANDA

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Criminal cases are not as paper-bound as civil litigation; aside from the charging documents and the defense attorney’s appearance form, no one files anything in the typical criminal case in Connecticut.  Instead, they negotiate.

Dick Wolf’s legal warriors use reams of paper for all of the briefs they write, even hand-deliver the papers they file, briefs backed with the old school cerulean blue linen cover.  Reality’s criminal defense attorneys don’t fight by filing, mostly because they don’t fight at all.

It’s standard practice for an incarcerated defendant who must go to court every day for trial to request that the judge order special transportation, a setup whereby she bypasses the herds of inmates going to court because one correction officer drives her to the courthouse and back to the prison directly.  That way, the detained defendant need not log hours in judicial limbo – “lock up” we call it – where her attorney has no access to her.

“Did you file the motion for special transport,” I asked my trial attorney, Mouth.

“I can’t.  That would be special treatment,” came from Mouth’s mouth.

“It’s not special treatment.  Everyone I know who had a trial had a C/O escort, driven directly in to court and then right back to Niantic.”

“But I don’t want you to be treated specially.”

“Who the fuck do you represent?  Is this one of your nutso strategies?” I gave the universal sign for quotation marks in the air. “If so, explain it.”

She refused to file a motion for me to get the special transport that every other inmate who’s attending a trial gets.  But I still did get special treatment; it was just worse than everyone else in my situation.

When it came time to file a Motion for Acquittal, a written motion that can win a trial decisively for a defendant by outlining the state’s case’s deficiencies, Mouth had no papers with her.  Instead she made a rambling oral argument that there were different theories of the case (there were not).  Dueling theories is not a valid ground for acquittal.  Judge Jon C. Blue saw Mouth spewing garbage and he waved at her to stop, to sew it up.

But Mouth didn’t clam up. Instead, she and Judge Blue went a full ten rounds over whether her use of the word “gypped” – slang for ‘swindled’ and  derived from the word “gypsy,” a wandering person, possibly from India with dark skin and black hair – was a racial slur.  Mouth defended the use of “gyp” valiantly for several minutes, making Judge Blue red in the face. He denied the oral motion for acquittal.

Do I need to say that Mouth gypped me?  Dick Wolf never lets his legion of lawyers gyp any of their clients.

4. BACK THEIR CLIENTS 100%

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Every attorney on Law and Order attends closely to his client, wrapping an arm around her to listen carefully, nodding in agreement.  Then defense counsel addresses the court based on what his client just said to him.

When my family retained Attorney Ears to represent me in a sentence modification, I detailed the facts that he needed to present to the court.  Ears nodded like he was auditioning for Law and Order but when it came time to argue before the judge, he swerved and told the judge that I take “total responsibility” for the crimes when I clearly do not.  Ears never listened to a word I said.

5. LIFT EVERY ROCK TO FIND ALL NECESSARY WITNESSES

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Dick Wolf’s cache of counselors is never short of bombshells.  They produce the defendant’s wife and dun her until she admits that she framed her husband.  Expert witnesses with knowledge of arcane neurological facts or psychobiology always the stand to clear names.  At the last minute they find the lone alibi witness.  It’s nice representation if you can get it but you can’t in the real world.

The court appointed Nose to represent me in a technically complex jury tampering case.  I explained that I was on the phone with a caretaker of a man who I represented before Social Security when calls to jurors were made; the caretaker was an alibi witness for me.  Unsurprisingly the phone records for the telephone line I used for these calls were absent from the state’s discovery, not that Nose opened his mouth about that.

I directed Nose to where he could find the man and request a waiver for his medical records to find the note of my call to his caretaker in his file.

“His family moved,” Nose said with phony regret.  “I hired an investigator to find them and there’s no forwarding address.  They’re gone.”

This shocked me.  The late father of the family was a pillar of the North Haven community; it would be very unlike them to up and move like, well, gypsies.

I followed up myself months later.  The family never moved; they’ve lived in the same house for 45 years. If someone had contacted them in a timely fashion,  then the caretaker who made notes of the times of our calls would have been able to testify for me. Instead, he died.

And Nose never caught a whiff of himself to know that he was full of shit.

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Jerry Orbach as defense counsel. He would later be cast as Detective Lenny Briscoe. See? Lawyers will switch sides on you.

If Dick Wolf has even a smidge of public concern, he’ll start creating defense attorney characters that reflect the poor representation that real-life defendants receive.  That would enable the public to understand how many erroneous convictions the judicial system manufactures every year with the help of its handymen: clay-footed, flesh-and-blood defense attorneys who, like my Skin, Eyes, Ears, Mouth and Nose, rarely make any sense.

THREE IDEAS IN CRIMINAL JUSTICE FROM JANUARY 25-31, 2016

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President Obama banned solitary confinement for juvenile offenders. It’s too bad there’s only 26 juvenile offenders in the entire federal prison system and even fewer of them are held in solitary confinement. Ultimately, Barack, you didn’t help that many people.

And, again, a prison employee takes a collar for assisting inmates with an escape. Nooshafarin Ravaghi, an English-as-a-Second-Language teacher at the Orange County Central Men’s Jail has been charged with assisting three inmates escape (all three are back in custody). Ravaghi will be arraigned on February 1, 2016; police and prosecutors plan to request a $500,000 bond, a little steep for a correctional ESL teacher. It’s a good thing she knows how jails operate.

Unabomber Ted Kaczynski’s life in prison is better than mine on the outside. It’s probably better than yours, too. This week Yahoo News published a five-part series on him and his life in the supermax which you can read here. Spoiler alert: Ted’s got skills with the ladies.

 

 

 

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Posted February 1, 2016 by chandra in category "Courthouse Battles

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