Tuesday, December 19, 2017

Long Overdue Thanks

A couple weeks ago, in my last post, I wrote about the two men who taught me about being a lawyer and their divergent fates. Subsequent to that post, I started seeing a prompt on Twitter about thanking someone, not a family member, who opened a door for you when they didn't have to. When I thought about it, there was only one answer for me to that prompt...the person without whom I'd probably be stuck being a lawyer who hated his job, wondering why he even became a lawyer. That person is Jean Lawson.

At some level, I knew I wanted to be a trial lawyer from back as far as 7th or 8th grade. I had flights of fancy occasionally when I saw myself pursuing another career, bu those always faded. Putting together arguments, analyzing and attacking opposing arguments, question and answer, these were always the things I loved. Indeed, in law school I initially struggled on exams that prized "issue spotting". I grabbed onto a position from the fact pattern and defended it. I was always better in class than I was in the blue book. The Socratic give-and-take with professors that most law students loathe was the only part I enjoyed. But when it came time to look for a job, opportunities to do criminal defense were not numerous. So I took a job with a small, general practice firm. Now, make no mistake, they were great to me and gave me more opportunities to actually get into a courtroom than most of my contemporaries at big firms. But it was still pretty infrequent. I started to gravitate to bankruptcy in the early to mid '90s, which was a booming field with a pretty fair amount of courtroom work. I started to establish a solid reputation as an excellent litigator but, truth be told, civil litigation was hopelessly boring. Interrogatories, document production and the entire civil discovery process was something I found mind-numbing. Trials were infrequent. And, ultimately, we were fighting about money, which bored me even more. So, I had been a lawyer for about nine years, I was a partner in a four-man firm, and I wasn't happy.

I had met Jean Lawson in, probably, 1995 or so. But I had heard about her before that. And everything I heard was the same: one of the sharpest minds doing criminal defense work in Charlotte. One day in 1996, she called me on the phone. I remember the conversation as clearly today as the day it happened.
Jean: "So, I understand you're a pretty good trial lawyer"; Me: "Well, I like to think so, but I haven't actually tried many cases"; Jean: "Have you ever considered criminal law?"; Me: "Well, I actually clerked for a criminal defense firm in law school, but the firms I've worked for didn't do criminal defense."; Jean: "What would you think about sitting second chair with me on a murder case?"; Me: "Wow, well that sounds really interesting but wouldn't that be diving into the deep end of the pool pretty quickly?"; Jean (in a line that would make one of the only time I can remember her being wrong about a case and which would change my life): "Oh don't worry. This case will definitely plead and it will be a good case to learn on."; Me: "Well, if you're willing, I'm in."

And I was. And, as you've probably already gathered, the case didn't plead. It first went to the NC Court of Appeals on an interlocutory appeal, then back down to trial court, culminating in an 11 week capital murder trial. My first criminal jury trial. And I'm in there with giants: Jean and I representing one co-defendant, Paul Williams and Dolly Manion representing the other co-defendant, Gentry Caudill and David Wallace prosecuting, and the Hon. Jessie B. Caldwell presiding. It was epic. And Jean was the perfect partner. She taught me everything, was incredibly patient, and never treated me as anything but a peer. She insisted I handle as many witnesses as I wanted, gave me the room, space, and confidence to develop my own voice and personality in the courtroom and with the jury. During one break, I told her I wanted to go after a witness much more aggressively than we had discussed. Her response: "You're dangerous. I like that." Every issue under the sun came up in that trial: death-qualifying jurors, Batson challenges, jury views, witness competency, suppression hearings, you name it we had it, including the co-defendant cutting a deal and flipping on us in the 9th week of trial. We lost on guilt/innocence so, again, in my very first criminal jury trial of any kind, we were going to a death penalty phase. And Jean's confidence in me never wavered. She persuaded me to give the final argument in penalty phase. She would cover the law, I would cover the heart and emotion. That argument was simultaneously the most terrifying and exhilarating experience I have ever had as a lawyer.

After arguments were done and the jury was out deliberating on life or death, Judge Caldwell told me to stand up. Puzzled, I did so. It was clear he was angry about something but I had no idea why. He then demanded to know if I had argued to the jury that they could hang (not reach a decision) and that that would result in a life verdict. Such an argument is improper. I was panicked at first. I didn't think I had done so, but I don't use extensive notes in final argument, just an outline of topics to cover, so I wasn't positive. I glanced down at Jean and she was calmly writing on her legal pad in big letters: "Don't worry about this. Just tell him what you believe you said. It will be fine". I can't express how much that helped. Judge Caldwell is a brilliant mind with an occasionally volcanic temper. Without Jean's calm, I don't know how I would have fared. But I related to Judge Caldwell that I certainly intended to walk right up to the line of what was allowed but not to cross it, that I didn't recall that I did, but that I certainly was not going to question what he had heard. I assured him that, had I strayed, it was purely accidental. As the prosecution had not objected during my argument and did not have a clear recollection of me straying out of bounds, the issue went nowhere. Jean had taught me how to both stand my ground and be respectful of the Court at the same time, and it is a lesson that has paid dividends many times over the years. Thankfully, the jury came back before much longer with a life verdict.

When  that trial was over, I knew I could never go back to the practice I had before. I was hooked. This was who I was and where I needed to be. I gradually changed my practice, steadily taking on more and  more criminal matters. In 1999, I told my partners I wanted out. I was going on my own and focusing most of my time and energy on criminal law. Jean and I  worked two more capital cases together, one a truly horrific fact pattern that resulted in a trial that I saw Jean do some of the best lawyering I've ever seen to save another life. But I won't bore you with more war stories. We haven't worked together in years, but I know I can still call her anytime I need help. The point of this is to give thanks. I've become a fairly successful and, I like to think, respected criminal defense lawyer in this town. I love what I do. I can't conceive of doing anything else. But, to borrow a political phrase of a few years ago, I didn't build this. Jean Lawson opened a door for me. There are not enough words to convey what I owe her. Thanks Jean.

Tuesday, November 21, 2017

A Tale of Two Lawyers. Well, Three, Actually.

During my last two years of law school, I clerked for a criminal defense firm in downtown Philadelphia. There were only two lawyers in the firm. They were both former public defenders in Philly. Our whole office was the two of them, me, and our legal secretary. We were right down the street from City Hall, where the Court of Common Pleas sat. We represented anybody and everybody. I loved working there.

The two lawyers I worked for were polar opposites. One was tall, black, smooth, and urbane. We'll call him Greg. His father was a renowned photographer for Ebony magazine, who snapped an iconic photo of Coretta Scott King at MLK's funeral. When I was working there, his passion for being a trial lawyer seemed to have cooled somewhat. He was dabbling in managing and promoting music, and when he found out I could rattle off all the lyrics to "The Message" by Grandmaster Flash and the Furious Five, he knew they had made a good choice in me.

The other lawyer was the reason I was working there in the first place. He was, in is own words, a "crooked-faced Irish kid". We'll call him Mike. Brash, a little loud, we had met when I was tending bar before I decided to go back to law school. But he was also incredibly well-read and fiercely proud of his Jesuit education. We struck up a friendship and he urged me to return to law school. When I did, he immediately offered me the opportunity to come work for them.

As I alluded to earlier, working there was glorious. We represented everybody: mobsters and drug dealers, petty thieves and murderers. I was tossed in head first, drafting memos, interviewing clients, tracking down witnesses. In my third year I routinely represented indigent misdemeanor clients. Working with Greg, I was meeting with local music producers and club DJs, trying to get new artists recorded and heard. Law school taught me how to go to law school; Mike and Greg taught me how to be a lawyer. (That tension between law school and work almost torpedoed my law degree as well, but that's another story for another day).

Mike was a trial lawyer. Period. Utterly fearless, possessed of a stamina and appetite for his work I have rarely seen. My last year, we undertook the capital defense of a black, male student at Lehigh Unversity charged with the rape and murder of a white, female Lehigh co-ed. Mike and I spent a night in a prison cell with our client, keeping him awake playing chess and talking about our families, in order for him to undergo a stress-related EEG. The trial was big news in the Lehigh Valley and tensions were beyond high. Mike never took a backward step. He fought every issue, every minute, every day. Every walk to the courtroom, every break, there were glares, insults, and threats of retaliatory violence. He never blinked.      We lost.        And the very next day he was back in the office working.

But he had his demons. As I mentioned, he was a hard drinker. He'd have occasional stretches of sobriety, but they never lasted. More than once, I had to have his back as we teetered on the edge of a bar fight, invariably outnumbered. And he was terrible with money. He got into cases for far too little money and, truth be told, probably couldn't afford to pay me or our great secretary Linda as much as he did.

They were great to me. Both of them. When an issue came up involving my Dad (again, another story for another day) Mike leaped in immediately to help. When my Dad died, Mike was there, tears in his eyes. "You're father was a great man", he told me. When I had the dust-up with my law school that I mentioned before, Greg, who was an alum of the same school, did not hesitate to throw his support behind me with the powers-that-be.

So. Two good men. Two lawyers. When I knew them well, one loved being a lawyer. Lived and breathed it. The other was more ambivalent. I graduated law school and Joni and I decided to move to Charlotte. I kept in contact for a time, with Mike more than Greg honestly. A few years after I moved, I heard that they had split and that Greg had been appointed the U.S. Attorney for the District of Delaware. I was so happy for him. When I had seen Greg work, he was an excellent courtroom lawyer, and now it seemed clear that he was back in the law. A few years later, Bill Clinton appointed him to be a Federal District Court judge for the District of Delaware. He eventually became the Chief Judge and is now Senior Judge for the District. He was the first African-American to hold each of these posts in Delaware. By all I'd read and heard, he'd performed in each of these positions admirably. Clearly, whatever, ambivalence about the law might have once plagued him, he'd grown past it and fashioned a laudable record.

Mike continued to slug it out in the trenches. I would occasionally take note of a high profile case he would be involved in. I smiled a few years back when I heard that he had been threatened with contempt for refusing to back down from a judge in the midst of a heated motion hearing. But then, late last year, I heard something else. Mike had been indicted. Charges of money laundering and witness tampering in conjunction with a drug operation whose main architects he had represented. At first I was convinced it was a prosecutor with a grudge, trying to strike back at and silence a formidable foe. But as I read the indictment, I could see that he was in serious trouble and it was clear the government had some serious ammunition. He went to trial on it. I knew he would. There was no way in hell he was cooperating. I am certain the thought never entered his mind. And he lost. Sentencing lags behind trial in Federal court, sometimes by a couple months. I dreaded looking up what he'd get. Just the other day, I forced myself to do so and found out he'd been given forty-two months. He's at Fort Dix Correctional as I write this. I'm going to write to him. If he'll let me, I'd like to go see him. He had my back and my family's back for years. It's the least I can do.

There's no moral to this story. There's not some great philosophical insight. But two men who had a great impact on me and my career have come to two very different end points. People are not just one thing. They are neither wholly good nor wholly bad. Life is complicated. There are good men who sit as judges. And there are good men who sit behind bars. You have to know their stories before you can decide. I felt the need to write this for a reason I can't even fully articulate. Maybe it's as simple as the old saying that we are neither as good as we are at our best, nor as bad as we are at our worst. But a good man is in prison. He did wrong. He made a terrible mistake. But it doesn't change the fact that he's a good man.

Thursday, February 9, 2017

On Compromise

There is much discussion in recent years bemoaning a lack of compromise in our public life, in particular in our politics. Respected voices on all sides of the political dynamic have counseled for decades, if not centuries, that compromise is both necessary and prudent. Edmund Burke, viewed by many as the founder of modern conservatism wrote: "All government, indeed every human benefit and enjoyment, every virtue, and every prudent act, is founded on compromise and barter". Allow me to argue, at least as it relates to basic principles, that Mr. Burke vastly overstates his case.

Verdicts in criminal trials in most every jurisdiction I'm aware of need to be unanimous. That is, all of the jurors (usually 12) need to vote either "guilty" or "not guilty" for there to be a verdict. If unanimity is not achieved, a mistrial is declared and the case can either be retried or dismissed. In every jury selection I am involved in, I talk to the prospective jurors about the concept that it is imperative for each of them to make up their own minds individually. That, yes, they should listen to their fellow jurors carefully and test what they think and believe the evidence shows (or doesn't) versus what the other jurors think and believe. That they should do so with an open mind and not in an adversarial manner. But, that at the end of the day (or days) that each individual must make up their own mind. And that giving up what they believe in an effort to reach compromise or consensus would be wrong. That, in fact, is the law, at least here in North Carolina. I ask jurors if I have their assurance that they will make up their own mind and that they won't simply "go along to get along".

I had that discussion with the potential jurors in the case I was trying this past week. Those I pressed on the issue assured me that they understood the importance of the concept and firmly believed it and supported it. And then the rubber met the road. After all the evidence was in, we gave closing arguments. Closing and cross-examination are the things I do best at trial, and I nailed this one. It was a very difficult case from a defense perspective, but I had won an important evidentiary motion early in the case and closing clicked. After you do this for awhile, you know when it's good and when it's just OK, and when I sat down I knew this one was good. What on first glance looked like a case the State would easily win, was now a battle. The jury was out for over 5 hours, which is pretty lengthy for a breaking and entering and larceny case. Once the clock passed 4:30, I started to get tense. Every defense lawyer who has tried enough cases knows that the time in between 4:30 and 5:00 is a dangerous time. You are reaching the end of the day. If there's not a verdict by 5:00, the judge is going to send the jurors home and bring them back the next day. I've had juries come back literally at 5:00 on the nose with a guilty verdict. Sure enough, at 4:45, we got word that there was a verdict. I still had hopes that I had pulled out an acquittal, but "5:00 verdicts" are almost always guilty. The jury was brought in and the clerk began to read the verdict. On the charge of larceny after breaking and entering, "not guilty"! A brief moment of hope. And then, on the charges of breaking and entering and conspiracy to commit breaking and entering, "guilty". Son of a ..........! A compromise verdict. Without boring you with detail on the elements of the crimes and the law of acting in concert, suffice it to say there is no logical way for a jury to reach those verdicts. What had happened, clearly, was that the jury was split and, rather than come back the next day and continue deliberating and, maybe, never being able to reach a unanimous verdict. they compromised and rendered an inconsistent verdict (as a side note, inconsistent verdicts are not legally improper).

The problem, of course, is that the jurors weren't trying to decide where to go to lunch. They were debating about a person's freedom. There are times to compromise. Lots of times. Many times. Not just on inconsequential matters either. But there are times when the principle is more important. I have no wisdom on when that line is crossed between very important matters and matters of principle. All I know is, jury deliberations in a criminal case is one of those times. So, no, Mr. Burke, every virtue is not founded on compromise. Sometimes compromise is the absolute antithesis of virtue.