Crime & Federalism

As noted earlier, legendary lawyer J. Tony Serra was sentenced to ten-months in federal prison for tax evasion.  Sending him to prison is a waste of taxpayer money.  Sentencing someone to prison should serve some purpose.  What purpose will sending Serra to prison serve? 

It won't generally deter future misconduct since Serra was sui generis.  He didn't fail to pay his taxes because he was living the high life; nor did he create tax shelters.  Rather, after paying his bills (his office is spartan) and buying a $500 car, he couldn't afford to pay taxes.  Indeed, his brother paid for Serra's children's education.

Sending Serra to prison won't specifically deter his misconduct.  His pleading guilty sent a message to his friends and colleagues: "Serra's a dope about money.  Next time around, we'll micromange his affairs so he can pay his taxes."  Prison won't have any effect on this.  Serra's taxes will be paid, but not because of a prison sentence.

Sending Serra to prison isn't punishment.  On his way out of the courtroom after being sentencing, Serra smiled and said, "I can do this, as they say, standing on my head."  I suspect Serra will have a great time in prison.  He plans to continue working; plus, he has a prison full of pro bono cases to handle.  And God help the prison administrators.  I wonder what they think about having an in-house gadfly?  I suspect that prison officials, rather than Serra, will be the ones counting the days of Serra's sentence.

Indeed, the only societal interest served is that Serra has promised to write two books.  Maybe the judge, like me, always wanted Serra to write a book.  Unlike me, the judge had the power to make it happen.

[W]hen juries misunderstand what a lawyer is trying to tell them through an expert, who is at fault? Is the problem with the jury being unable to understand, or is the problem with the attorney and/or experts being unable to communicate a coherent message?

I do not think it is a stretch to claim it is more often the latter. We should not reform/deform the jury system to make the world a safer place for incompetent lawyers and their incompetent experts. Instead, we should better understand how to present a clear, coherent message through our witnesses. We do not need better jurors: we need better lawyers, better experts, and - perhaps - better judges.

Here's the full post.

The anonymous author of Greatest American Lawyer is hosting this week's Blawg Review.  GAL, which studies how to better serve clients, is one of my favorite blawgs.  Click here to enjoy the latest Blawg Review.

Warning: This is fiction, don't read if addicted to literalism.

War of the Words

Where do all the words go?

His daughter had asked him that one day when she was three and the world was fresh with her wonder.

"Daddy, where do all the words go?" Deep blue eyes invited him to travel innocently if he would but have the courage to dream.

"Words, sweetie?"

"Uhm hmm, Daddy. When I say them are they gone forever?" Something like sadness touched her.

"No, sweetheart," Reardon had said. "They go to heaven, and they stay there so that everyone has a chance to enjoy them."

"How?"

"Imagination. You can go anywhere you can dream," he told her. Perhaps it was no wonder she’d been drawn to literature as a college student.

Reardon now had more prosaic means of preserving the words around him. He had a court reporter. And daily he labored over something lawyers call "the record."

Oh, you know the concept. You are standing half sauced at a bar, and in comes the mighty mouth of the South. He’s more stewed than you, and he’s on a rant. He has something he wants to say. All that is necessary is that he get it out, pry it out, if necessary, in some more or less orderly collection of nouns, verbs, and adjectives.

Grabbing the railing of the bar, he inhales deeply, pitching from side to side. Both hands now steadying himself, he belches. "And I will state for the record." Does that mean he now means to be taken seriously, belches and all?

We all want records of our life, and we busily seek to create them. The trouble is we can’t stop others from recording what they see.

Reardon recalled seeing, as an adolescent, a little pocket-sized comic book created by fundamentalist Christians. It was judgment day. God had a record of each word spoken; worse yet, God had a record of each conscious thought. A tormented soul on the eve of eternity shuddered as his secret lust was magnified on the divine viewing screen. Why, he had once looked at a woman with desire. Come brimstone; come fire; come damnation with no hope for relief. The comic book was prepared before Jimmy Carter pathetically announced that he was guilty, oh, so guilty, of lust in his heart.

Now Reardon had a chance to play god among men. He was the master of his own record. Lesser mortals in his presence could be compelled to squeeze every word into a salvageable form. And, like God on judgment day, Reardon could review the record of all that he surveyed before reaching his more mundane judgments.

But how much is enough? Judging a man for vagrant thoughts and the haphazard contents of desire seemed extreme. Aristotle counseled moderation. Moderation in all things? Well, how to moderate the desire for perfection? Does one draw a mean between perfection and, well, what, the mere lack of perfection, or, perhaps, evil? Reardon closed his eyes for a moment and saw a dark forest. There were trees present, but as his thoughts veered this way and that, he saw a fog rising. Thick, grey swirling vapors swallowed lonely pines. Perfect, evil, moderation, a mean; all now ingredients of some sickly existential soup. He knew where all this would lead: despair, indecision and solitary scotch before a fire. He must will it to stop. But will requires something firm on which to stand. A paper pushed by a hurricane stands no chance of resisting; it darts in the pell-mell fury of nature’s rage. Will requires roots, even if febrile and easily overcome. A blade of grass can stand, like Luther, and declare that it can do other, even as it is driven into Earth by the world’s machinery.

How much of a record is enough?

Reardon had long ago decided that how a judge treats his or her record was in fact a litmus test of the judge’s ambition and a barometer of his sense of self-importance.

There are judges who will never meet with a lawyer outside the presence of their court reporter. For these judges, the record is both sword and shield. Like bats in hermetically sealed belfries, these judges know the shape of each wall, the interior of each turret, of the castles in which they are imprisoned. To speak to such a judge requires the willingness, or, perhaps, the compulsion, to cross over the moat of informality and into a world so solemn each word is preserved for all time; sacred pebbles to be collected, savored and then tossed, either in celebration while sunning on the beachhead of success, or darted at those who come too close to undermining ambition.

These judges are bucking for stardom. They will never be at the center of a controversy about what was or was not said, by golly. Every word they ever utter in their role as jurist is on tape or packed away in some computer terminal. Slave to their records, these judges are not to be trusted. Sterile, they bob, weave and then preen in the presence of the ever-present tapping fingers of their only friend, the civil servant whose job it is to hang on their every word.

No, Reardon had decided he would never live like that. He would not live inside the sterile confines of such a bubble.

His vision of a the perfect judge was that of a problem solver. And lawyers bring nothing but problems to a court of law. The law’s great stories are not told on the record. Indeed, the law’s great stories are often never told at all.

A lawyer meeting in the dead of night with a client to prepare for trial learns sobering truths. These truths reflect less about the facts that will be marshaled before judge or jury. No, the deeper truths are truths that cannot be told. How fear can warp a man and transform him into an angry exclamation point, blind to everything but the imperative to strike before he is hurt again. How time passes some poor souls by, leaving them smaller and smaller in their mind’s eye until, suddenly, they will be heard, and the molehills over which they have tumbled become Alpine reaches they will now force others to scale. Freud, a student of the deeper reaches? Please. He controlled his record; his clinical notes and pithy essays a testament to his creativity. Dostoevsky? His underground man wrote and rewrote the record he used to portray himself.

Few know the subterranean turf of human desire so well as a trial lawyer. Why? Because he must keep his client’s secrets. He must tell the client’s story. He must build a home with the sticks and twigs at hand. That means that a lawyer, a trial lawyer, a lawyer whose task it is to make another’s record, must seem a fool. Common speech and the banal gestures of the courtroom are his tools. Somehow, he must use these tools to reflect the world his client inhabits. See now the hubble of stick and twig; but who, tell me, save the lawyer and perhaps his client can hear the wolf howling at the door?

The perfect judge knows when to let the record be silent. A simple side bar. A quiet word to put the blind fury into context. The perfect judge knows a lawyer’s fear. The rage of a client willing to sue is easily turned against a lawyer who cannot succeed in making real for others a solitary and lonely terror. Reardon had vowed to be a perfect judge. His record would not become a cage; nor would it be a wall to separate him from the lawyers appearing before him. That was a commitment he made when he took the bench. He vowed to be rooted in something other than fear, or vanity. It was a vow he hoped would withstand the tempests to come.

"Judge Reardon, counsel in the Antoine case are here and would like to see you." His clerk stood in the door of his chambers.

"Who is out there?" Reardon asked.

"Sterling, Shamir and Shank," the clerk said.

"Shank?"

"Yes, sir." The clerk’s eyes danced, two nymphs at play.

"Well, in that case, call Glenda. I am not going to meet the lawyers in this case without a record," Reardon said.

He would settle for something less than perfection in this case.

Warning: The following is fiction intended for mature audiences.

Temperature Rising

"Millie, we need to talk," Reardon said.

Millie looked up. His tone was not desperate. The announcement was simple, and did not seem to bear the seeds of some deep-rooted discontent. She put her coffee mug down.

"Is everything all right?"

"I’m not sure," Reardon said. "I think we might be in some kind of trouble."

Well, at least the pronoun was right. Or was it? If he were ill, diagnosed now with some life-ending disease, that would be their problem. So, too, would be the consequences of an audit by the tax man. Her head started to spin through possibilities. He often formed his thoughts slowly, and the gaps between sentences, sometimes between words, opened vast worlds of possibilities in her mind.

"It’s about the Antoine case."

"What about it, JJ?"

"Well, it’s sort of complicated, but the bottom line is that I think I may have a conflict. I don’t think I should be presiding over the trial."

Her hand reached for his across the smooth oaken surface of their breakfast table. She was both alarmed, and flattered in a funny sort of way. While Reardon was practicing law, they had rarely talked about his cases. He preferred it that way. He tried to leave the chaos at the office. Would a doctor bring a festering tumor home, place it on the dining room table, and then offer to discuss his day?

Perhaps Reardon would include her more, now that he was a judge.

"What sort of conflict?"

"I am not really sure. Frankly, I don’t know what to make of it at all."

Reardon was debating whether to tell her about the delivery of what he assumed to be a sliver of Shank’s tongue to their doorstep. That was too frightening.

He told her the story about his meeting with Merlin Shank years ago. About the envelope with the key to solving the murder of Lester Fuchs. How Shank’s wife had called to report that the mutilation of her husband was nothing at all. His decision not to disclose any potential conflict when first asked by Nash to scan the list of active criminal cases in the Belle Grande court. And he talked about meeting with the lawyers, Clarence Sterling and Mark Shamir, neither knowing that he possessed a potentially decisive secret. He ended by saying that he expected to see Shank in court that very day, and he wondered aloud how to manage all of the vectors pointing in his direction.

Reardon talked and talked and talked. Millie’s eyes grew wide, and she stifled the urge to ask questions. And then he stopped talking, and sat staring into his coffee cup, now, like him, empty.

"So there you have it, Moops," he looked sad. "And I am due in court in an hour to start jury selection. "

"JJ, I, well, really, this is extraordinary." Millie now adjusting to the heft and weight of this uninvited burden.

"I think you should go to the police, JJ. Don’t you?"

Reardon suddenly missed Marcy, his former paralegal. A vision of her laying dead on Vine Street flashed through his mind. Then he recalled the easy intimacy of her eyes. Somehow, she would have known what to do, how best to deal with this thing he called a conflict. She knew him and his work, or so he thought. Maybe that wasn’t it at all. The intimacy he shared with Marcy was an easy illusion. She was not a peer; not a mate along life’s way. She always had the right answer to his questions because she listened well. Her gift, if it can be called a gift, was the ability to discern what he wanted, and to return it with a smile. The warmth she generated was not real intimacy. It was not a communion of souls. It was a mirror with lipstick; a scented pond into which he could gaze to see his own reflection. At some level he knew that, but he missed her still.

"I am not sure what the police could do, Moops." He was trying hard to listen, to be open to what insight she could muster.

"Well, it is not your job to investigate, Jon." She tried to remain calm, but uneasiness blossomed in her chest. Tiny tendrils of fear were reaching into her bowels. If they were watered so, she could panic. She did not know why.

"I don’t think the police can help, Millie. Besides, I don’t even know what is in the envelope. And Shank gave it to me in confidence; I have received instructions from him about how to treat what he gave me." Reardon sounded defensive.

"Well, you can’t be both a lawyer and a judge, can you?"

She was right, of course. When he left the practice of law to become a judge, he should have called Shank in for a chat, and told him he would need new counsel. Why hadn’t he?

It was not a matter of oversight. Reardon cherished his role as Shank’s lawyer. It had a certain sashay. Lawyer to the stars. Even if no one else knew, Reardon knew that he was the man relied upon by the state’s best known criminal defense lawyer. A subtle rebound sort of fame. Reardon had not relinquished his role as Shank’s lawyer because he did not want to cut that bond to his past. And besides, there was rarely anything to do. He did not meet with Shank. He had long since stopped being paid by Shank. He was a mere custodian of an envelope. What was the harm in staying attached to the past?

"I’m not sure what I’m going to do," Reardon said.

"Well, I’m sure you’ll do the right thing; you always do."

Every marriage has such moments of despair, and all come down to the realization that the other, that mysterious presence who is by degree your completion, this other can also break your heart with kindness. There was nothing vindictive about Millie’s response. She believed in Jon. She trusted him to do the right thing. He was the most honorable man she knew. She was sure of him, and she had spoken the truth. Her response to him was kind and open, even if impotent. Reardon, on the other hand, heard the response as the creaking sound of a bridge being drawn over a moat. No way home now, he was alone with night sounds and fiendish things. He wanted help slaying a monster. What he got was a glowing affirmation of his role as beast-slayer. He felt betrayed.

"I’m sure your right, Millie." And beneath the surface, so subtle Millie could not discern it and Jon need not acknowledge it, the sound of him shoving off, cursing the womb that would not nurture him. As he rose to leave and kissed his wife’s cheek, he smelled Marcy’s cologne. He missed her. She would have understood.

The grip of this illusion comforted him as he drove away from the house. He did not stop to consider that were Marcy ever to have lived with him, were she to have removed him from the pedestal of distant desire, she’d have seen that he did not speed along on the wings of angel. No, Reardon was like most men, indeed, he was no different than any. No matter what the size, shape or intellect, the hunger for redemption must be fed, sacrifices must be offered up. And we are quickest to slay those we love.

---

The film crews were gathered at the front entrance of the courthouse, flies dancing on waste. Reardon passed them, and then entered the parking garage at the rear of the court.

"Good morning, Your Honor," the marshal said, waving him through.

"Morning, marshal." Reardon stopped calling the man by his name some time ago. The burden of intimacy was a load he didn’t need. There were few cars in the garage. The spaces reserved for other judges were all vacant. He wanted time to review briefs and some case law before the lawyers arrived.

A flashing light on his telephone caught his eye as he opened the door. Usually the secretaries took messages. He was far too impatient to listen all the way to the end of voice mail messages. In his mind, answering machines were a tool of some passive-aggressive terrorist. Yammer, yack, chatter and moan. Leave a long message. Make the listener go through the whole litany of your narcissism, and only then leave your number. Reardon preferred written messages. He could get right to the number that way and dispense with the sing-song whining of those forever and always in need.

A slangy voice, reedy sounding. It was the bottom of a gin bottle calling in for a refill.

"G’mornin’, judge," almost a contemptuous drawl. "Enjoy the tongue meat?" A chuckle and the sound of something clicking. "I hear that today you’re going so see the tongue’s owner." The chuckle again. "Give him my love."

Reardon went cold and his hands began to shake. He reached for a dictaphone. He wanted this message recorded. His hands shook and his heart was banging, asking to be let out, to flee and escape. As Reardon reached to replay the message, his hand hit the delete code, and not the rewind button. He sat stunned for a moment; stunned my his own stupidity. Or was it stupidity at all? Somehow he felt relieved. This was a secret he did not need now need to keep.

J. Tony Serra, a legal hero, was sentenced to 10-months in federal prison for not being able to afford to pay his income taxes.  I'll have a lot to say about his sentence.  In the meantime, don't miss this post from one of his lifelong friends.  Here's an excerpt:

Tony is a legendary defense lawyer, defender of civil rights, who often takes on impossible cases, often pro bono, and has had an extraordinary career in the San Francisco area and the rest of the nation. He lives a spartan life, drives junker cars. He is colorful, with a long grey pony tail, and wears suits he gets at the Salvation Army. About 10 years ago, 60 Minutes did a piece on him. The movie True Believer was about one of his cases, with James Wood playing Tony. A Google search turns up about 7000 references to him, and he's described as "radical," "flamboyant," and "renowned."

Read the whole thing.

(Hat tip: Skelly)

The tort system provides three valuable services to this country.  The first valuable service is a means by which victims of someone else's wrongdoing may seek a remedy.  The second valuable service is related to the first:  if the victim is able to recover a fund representing her past and future losses caused by another, it is less likely that she will need public assistance to pay for those costs.  The third valuable service is deterrence:  history has shown that certain corporations and governmental entities will not do the right thing by taking exploding Pintos off the road, or removing predator cops from their payrolls, simply because it is the right thing to do.  The threat of liability steps into the void where a conscience otherwise would be.

These valuable services are subject to the limitations of sovereign immunity, where the wrongdoer (evildoer?) is a governmental entity.  Because the king can do no wrong, even a catastrophically-injured victim of governmental wrongdoing may sue the government only under causes of action that the government will allow.  Those causes of action are defined by elimination:  the Federal Tort Claims Act, and state and political subdivisions tort claims acts modeled after the FTCA, list causes of action that are immune from liability.  Even causes of action that are not immune are often subject to damages caps - - despite that policies of insurance cover liability claims against governmental entities.

About a month ago, the United States Supreme Court issued Castle Rock v. Gonzales, a civil rights action implicating the failure of a police department to respond to repeated pleas for help from a woman whose husband had kidnapped their children.  The husband murdered the children while the police dismissed the woman's calls.  The Court noted that although it was eviscerating the hope for a remedy for such a plaintiff under the civil rights statutes, the plaintiff could still seek a remedy in tort law:  "Although the framers of the Fourteenth Amendment and the Civil Rights Act of 1871, 17 Stat. 13 (the original source of §1983), did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system under state law."

So, are the Supremes correct, in musing that a plaintiff still has a remedy in the state courts? 

Yesterday, the Nebraska Supreme Court issued its decision in Johnson v. State, a tort claim arising out of the rape of a female prison inmate by a correctional officer.  The state tort claims act, like the FTCA, bars claims for assault:  thanks to that legislation, there is no liability for the fact of the rape itself.  But Johnson's cause of action was based on allegations of negligent failure of the prison to supervise its correctional officers according to DOC policy and procedure, and the prison's decision to retain the officer on its payroll despite its knowledge that the officer had a history of assaults. 

The Johnson court held that claims for negligent supervision and negligent retention are, in fact, the same thing as a claim for the assault itself.  In so doing, the court immunized the State from another cause of action that the legislature had not exempted from immunity.  It shut off any hope for any remedy for the plaintiff (who, by the way, had also seen her 1983 case dismissed by a federal judge); and it eliminated an important incentive for prisons and law enforcement agencies to remove predatory officers from their payrolls.  Certainly the Johnson decision contravenes the suggestion in Castle Rock that a remedy should be available, even if the Supremes prefer it to not come from federal law.

It could be said that this is a way for the Court to hint to legislatures that they should revise state and political subdivisions tort claims acts, to provide a remedy for victims of state misconduct and negligence, and to provide a common-sense measure of accountability to deter government from keeping batterers and rapists on the payroll.  But the legislatures just aren't likely to do that - - particularly in the climate that, this week, spawned House passage of federally-mandated medical malpractice caps and immunity for firearms manufacturers. 

So in the face of Castle Rock and state court decisions like Johnson, the tort system fails.  Victims of governmental misconduct have no remedy.  The state may well pick up the cost of the victim's past and future medical and counseling assistance, where a governmental liability insurance policy might otherwise have covered those costs. 

And, there is one fewer incentive for government to cull its rolls of predators.  Apparently the threat of liability wasn't enough of a reason for the Nebraska Department of Correctional Services to properly supervise its officers and enforce its own policies.  Now that threat is gone.  Someone, please remind me how governmental immunity from liability makes things better for citizens.

Odds are Sushil Gupta will not spend a day in prison. The crimes of which the doctor was convicted are, after all, misdemeanors. But a jury has spoken: A physician kissing and fondling his female patients' breasts is asking for trouble.

The Connecticut physician was convicted of two counts of sexual assualt in the fourth degree in New Haven on Friday. His lawyer called the verdict a "wake up call to the medical community," and suggested that a doctor who conducts an unchaperoned examination of a patient is just asking for trouble. This same lawyer earlier called for the unionization of Catholic priests to help fight against allegations of sexual abuse. Go figure.

Just maybe the doctor is a scumbag. This case should have been resolved short of trial. This case was no wake up call to doctors any more than a conviction for abuse of a child by a parent or step-parent is a wake up call to families.

Odds are the doctor wouldn't, or couldn't, accept a plea. He went to trial. Three women testified that he took liberties with their breasts. A wake up call to the medical community? Yeah, right. Here's the message: Replace those copies of Playboy with the Journal of the American Medical Association and things will be fine. Sinus on the Nipple?

Professor Douglas Kmiec has an interesting column at OpinionJournal asking: "Does Catholic belief interfere with judicial reasoning? What kind of question is that?"  It's a great read; check it out.

This law.com article discusses plans to convert Justice Breyer's home into something more economically useful - you know, to put it to a public use.  Some are against the idea.  I hope the idea, and the bulldozer, gets traction.

Supreme Court Justices are insulated from their opinions.  They can talk tough in crim pro and other individual rights cases because the police will never kick down their doors, kill their dogs, or arrest them for not wearing a seat belt.  They are, in a word, the ruling class.  They are above the law. 

Those who remain above the law forget what it's like for those of us living under it.  How else could Kelo's lawlessness be explained?  Condemning Justice Breyer's home would remind him what it feels like to have the town evict you for political reasons.  It will remind him that no one can forever remain above the law, and thus, he should enforce the law - "for [his] own safety's sake."