This week, a federal appeals court ordered attorney Lynne Stewart to prison and asked the trial judge to review her sentence. It may have been too low based on his lack of consideration of whether she committed perjury.
Conservative blogger Michelle Malkin was relieved:
If there is a shining example of just how dangerous it is for America to give foreign-born jihadists the full panoply of American constitutional rights and all the attendant benefits of a civilian trial, it is Lynne Stewart.
Lynne Stewart was convicted of passing notes for her suspected terrorist client that prosecutors said could have incited violence in Egypt. She was facing 30 years, and received 28 months.
I wasn't in the courtroom. I didn't hear all the evidence. I don't know if Michelle Malkin sat through the trial, although I suspect not.
That's the first problem here, and not really the subject of this post.
Conservatives in America long ago lost their tolerance for "liberal" judges who make determinations that defendant's should spend less than the maximum time in jail.
If the maximum for a crime is 30 years, then damn the judge who takes into account the history of the defendant and other issues (like the evidence in the case) and determines that a lower sentence is appropriate.
That's from where "minimum mandatories" came.
So Malkin thinks 28 months was too low. I don't have an argument there. You can't argue with America's love for lengthy prison sentences. That's a waste of time. If Malkin ever was to read this, she would probably chalk up the mere discussion of judicial discretion as a signal that I am a flaming liberal terrorist loving communist.
Which brings me to the purpose of this post.
Malkin ends her blog post on the Stewart case with this:
How many more Lynne Stewarts are out there, ready to aid and abet their jihadi clients on American soil?
Really Michelle? You're on the hunt for American Criminal Defense Lawyers who are ready to aid terrorist suspects?
Well, if you're out there my colleagues, Michelle Malkin wants to know.
The public takes for granted when they hear that someone "surrendered to authorities."
Surrendering to authorities means that either there is a mature, experienced agent or police officer on the case, or that heavy negotiations took place, or that there's some pissed off cop who didn'tget a chance to have his "fun."
I say "fun" because recently I asked for a voluntary surrender for a client and was told by the officer: "well, making those 6:30 a.m. arrests are really the only fun we have anymore."
There is no policy for voluntary surrenders, a topic about which I previously wrote.
Recently I developed my own policy after a client who answered some questions in an effort to cooperate with a federal agent was picked up 2 years later at 5:30 a.m. because the prosecutor rejected the agent's request for a voluntary surrender.
My new policy is that if a client chooses to cooperate, there will be an agreement to a voluntary surrender, first. None of that "lets see how it goes." You're holding jail over my client's head already, no need to hold scaring the shit out of his kids and embarrassing him in his neighborhood over his head.
So back to the question: Will Scott Rothstein get a voluntary surrender?
He should.
As there is no policy, let me suggest we formalize one. One that prosecutors will probably say they already use. It's just a series of questions:
[1] Is the suspect aware of the investigation?
[2] Has the suspect cooperated?
[3] Has the suspect hired a lawyer? (This is not to put a suspect with money to hire a lawyer in a better place than a poor suspect, it's just one factor.)
[4] Has the suspect done anything to avoid the possibility of arrest? (Morocco?)
[5] Are the suspect's whereabouts known?
[6] Is there any evidence that the suspect will flee if asked to surrender?
Each of these are one factor to take into consideration. A balancing test (we in the criminal justice system all know about balancing tests) is done and a decision is made.
The problem is that recently I hear from the prosecutor: "I don't get involved in that. I don't want to interfere with the agent's/officer's investigation.
Punt.
Rothstein left the country. He came back. He has a lawyer who seemingly is in communication with the feds. Yes, his client is in an "undisclosed location," but I surmise the feds know the location. I trust Rothstein knows he will be arrested at some point and I trust if the feds felt he was still a flight risk they would file a complaint and have him picked up with an outrageous bond.
So I think the deal is done. Maybe it was done before he came back from Morocco.
The "perp walk" satisfies several purient interests. It allows law enforcement to do the early morning stake out, it allows the public to see a hated man walk in handcuffs, and that bodes well for, well, I have no idea.
So I think he gets his voluntary surrender, and in the end, it really doesn't change anything except to show our ability to be professional.
As a defense lawyer, the job is to defend. Defending means determining the appropriate defense to the charge. There are simple defenses: didn't do it, that guy did it, insanity, statute of limitations has run, charge is not appropriate, and of course the old "I wasn't stealing his car, I was just borrowing it for a while. I was going to bring it back."
While it appears that David Letterman was asked to pay $2 million dollars for silence on some scandalous allegations, we are learning now that, well, it was really nothing more than an everyday "commercial transaction."
Let's begin.
The relevant portion of the extortion statute of New York says that: a person obtains property by Extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will:
(v) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule
According to John Eligon over at the New York Times City Blog: the defense lawyer's follow up to this classic interview, is that Robert Joel Halderman was simply trying to sell a story, not extort money, when he delivered a one-page screenplay proposal and other evidence to David Letterman in September about Mr. Letterman’s affairs with women who worked for him.
OK.
More from Eligon's article: “This was a commercial transaction,” Mr. Shargel said outside the Lower Manhattan courthouse surrounded by a horde of cameras and reporters. “It was nothing more.”
At the heart of the defense argument is that Mr. Halderman’s only intention was to write a book or a screenplay about Mr. Letterman’s affairs. But before going forward with the project, Mr. Halderman offered to sell Mr. Letterman the rights to the story for $2 million....
As a defense lawyer, clients come in all the time with theories of defense. Some are obviously crafted to see if the defense lawyer will "buy it," and some are novel ideas, such as this one that Halderman wasn't trying to get $2 million from Letterman to keep the story quiet, but that he was just engaging in the sale of his "screenplay."
Defense lawyers owe an obligation to their clients to be candid with them about the appearance of certain theories of defense. All of use as defense lawyers deal with the client who complains "I don't think you believe me, how can you fight for me?
I think I do a disservice to my clients when I buy into a defense that I just don't think a jury will take seriously.
No, it doesn't make sense to me. But it makes sense that they remain in effect based on the fabric of our society, based on "what the public wants," says the government.
Yesterday, as every lawyer in the world knows, the United States Supreme Court heard argument on the issue of whether life sentences without parole for juveniles convicted of non-homicide offenses is a violation of the Eighth Amendment prohibiting cruel and unusual punishment.
There is no question but that we have lost any desire to reform children that have gone astray. Trying juveniles as adults, once a rarity, is now the norm. Seventeen year olds are frequently charged as adults because, well, they're 17.
We have no issue as a society locking up people and "throwing away the key. This is whether they are 35, 50, or 14.
The State of Florida argued that individual states should have the right to determine how to prosecute children. Florida has a big stake in this case, with 77 of the 100 juveniles imprisoned for life on non-homicide cases proudly calling the Sunshine State home.
Lock 'em up. Forever.
It's how we are, and who we are today. Politicians run on "tough on crime" agendas, convincing the public that they will "keep them safe." Turn a misdemeanor into a felony, throw in a minimum mandatory penalty, have the tool to be able to lock up a kid for life, and we'll all feel safer. Go against the agenda, and you're just cozying up with criminals and running the risk of abandoning everyones perceived top priority of "public safety."
Life without parole sentences for juveniles make sense because they keep politicians in office, and keep people believing they are safe(r).
Talk about putting money into education, helping kids on the "front end" rather than the "back end" when they are well on there way to prison, and you just "don't understand." The anger and hatred expressed by those who can't believe we as a country would even consider non-homicidal children in prison for the rest of their lives to be cruel and unusual, is deafening.
Prosecutors want this hammer. The people, are told by their elected officials that they want this hammer.
That's why it all makes sense.
And that's why they'll stay in effect, subject to some level of discretion that is virtually meaningless.
Required watching for every defense lawyer, prosecutor, judge, bailiff, defendant, voter, garbage man, teacher, citizen of the world, is this video where an in-court deputy is seen stealing a document from the file of a criminal defense lawyer.
There's almost nothing that needs to be said about this video.
Well, almost.
As usual, Scott Greenfield covered all the bases in this embarrassment of a scene in Maricopa County, Arizona.
Scott calls it "blatant, outrageous and yes, illegal." He analyzes it this way: "First, this happened in full view of the judge, Lisa Flores, who appears not to have noticed. Later, when confronted with what happened, her first reaction is that her court officers are entitled to "leeway." Her second reaction is to seize upon a statement by Cuccia that this isn't the time to deal with the situation. Her third is that she's got a busy calender and this isn't worthy of her scarce time."
Scott faults everyone, including the defense lawyer:
"On Cuccia's side, she fails to notice, despite a few backward glances as the officer is touching her papers, that something is seriously awry. Once informed of the problem by her client, she asserts herself, but allows herself to be told to "calm down" by the judge, and follows instructions well. Rather than go nuts, inform the court that this is outrageous, far more significant than anything else she has to do that day, and demand that the court address it immediately, loudly and clearly, she demurely allows the matter to be put off to another day."
It's clear the defense lawyer was pushed around, and relented. Scott didn't like that:.
"Rather than go nuts, inform the court that this is outrageous, far more significant than anything else she has to do that day, and demand that the court address it immediately, loudly and clearly, she demurely allows the matter to be put off to another day."
I didn't like that either.
But Scott lives in another world. The world of big time New York criminal defense. Scott suffers from what many of us defense lawyers suffer from: "What I would have done-itis."
Here's the problem: we all live in our own world when it comes to the practice of criminal law. We know judges, prosecutors, cops, and we know what we can and cannot do in certain situations. Maybe this defense lawyer operates in a world of fear of the court, maybe they all do in Maricopa County. I don't know.
She appears to be aggressive in certain areas, and less aggressive in direct confrontation with the Court. She let the judge do the "whatever, I'm busy routine," without putting on the record the seriousness of the cause.
Maybe she has a history with this judge. She did mention "retaliation" in the video. Sometimes doing your job as a criminal defense lawyer results in just that.
What I would have done, is to demand the judge issue a rule to show cause why the officer should not be held in contempt, allow him to obtain counsel, and have a hearing. Then I would have filed a complaint with Internal Affairs, and the state attorney's office alleging theft, obstruction of justice, and official misconduct, with the video attached.
After reading that last paragraph, the sad thing is the some defense lawyers are laughing. "Do that? In my town?"
Yes.
I often am taken to task by my brethren when they complain about situations and I wonder aloud why they don't do certain things. They tell me about the culture of the city, town, or village, and tell me I don't understand "how things are." Yes, there are many communities in this country where criminal defense lawyers "fall into line" because it's all about the business, and not about the system of justice.
Well, that's me, and what I would do here, in Miami, where I've been practicing criminal defense 15 years and feel comfortable asserting myself. There's been a lot of police corruption here, and a situation like this, here, in Miami, would be looked at differently than in Joe Arpaio's Maricopa County.
Some lawyers are just downright scared. And yes, that's shameful.
I'm not making excuses for this defense lawyer. I've just grown to learn that there are different types of communities with different types of attitudes.
Communities like Maricopa County, Arizona, where stealing a document out of a defense lawyer's file in court results in no contempt finding,
After all, these officers are there to insure courtroom safety. Safety from emotional courtroom observers, out of control defendants, and the file of a criminal defense lawyer.
Keeping up with the latest news on the unraveling of Scott Rothstein is like watching the stock market ticker.
Here's what we know this morning:
Rothstein had $16 million transferred to Morocco. A country he spent the last few days "clearing his head," and according to NBC6 Miami, contemplating suicide. By the way, he's back. His first meeting, with the feds.
Nationally known political consultant Roger Stone thought something was up a year ago.
On Halloween, Rothstein sent this text message, neither a trick, or treat:
"Sorry for letting you all down," he wrote. "I am a fool. I thought I could fix it but got trapped by my ego and refusal to fail and now all I have accomplished is hurting the people I love. Please take care of yourselves and please protect Kimmie (Rothstein's wife). She knew nothing. Neither did she nor any of you deserve what I did. I hope God allows me to see you on the other side. Love, Scott."
All the news surrounds one question: Who knew?
Yesterday a prosecutor told me: "It takes two people to make anything happen."
I never met Scott Rothstein. He ducked out a few minutes before our lunch a few years ago. His secretary telling me and his colleague, who set up the lunch: "he went to lunch." There was no further inquiry as we were not entitled to even be standing by his office, an "off-limits" area of the firm. Instead I went to lunch with some other lawyers in the firm who felt they needed to take pity on me for my wasted 40 minute drive, all of them telling me in response to the unprofessional behavior of their king: "I'm not surprised." "That's Scott."
It was hard not to follow the career of Scott Rothstein and his firm. They were everywhere, sponsoring everything. Charities, foundations, the South Florida Business Journal who enjoyed large advertising revenues and event sponsorship revenues for their "who's the best" this month ass-slapping luncheons, sports stadiums, everywhere.
Over the last year or so the chatter of how this firm, in this recession, was not only surviving but thriving like no other 7 year old firm, got louder.
Lawyers continued to flock to the firm.
Yesterday a legal marketer asked me why these lawyers "didn't do the math."
I responded that today's lawyer doesn't do the math beyond the paycheck.
Today's lawyer doesn't want to know that the average lawyer srtuggles to make $100,000 a year. A good lawyer, makes several hundred thousand dollars a year. Very few make seven figures. A miniscule amount hit the jackpot.
That's reality.
But there's no personal benefit to taking a hard look into how an employment lawyer who started a small firm 7 years ago now owns tens of millions of dollars in homes, leases a jet, owns several six figure cars, and has round the clock bodyguards.
Just give me the check.
I don't know if Rothstein stole the 100-200 million dollars rumored to be missing. I don't know if he committed a crime. I know he sent an email asking what countries do not have extradition treaties with the United States, and is rumored to be in one of those countries. I don't presume him guilty, I do presume him highly careless for sending that email. A search for his name on CNN.com doesn't serve him well either.
The big question going around, as this story develops by the hour, is "what did the lawyers in the firm know?"
They all claim to have known nothing, that Rothstein hid all the firm's finances from the partners and associates.
So maybe they didn't know about this investment scheme.
But there are things you know, and things you know.
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