Judge is seated behind desk in a crowd of lawyers. “Sweet Child of Mine” plays loudly from tinny computer speakers.
ENTER LAWYER 1 AND 2, front and center. They sit in the last two remaining unoccupied chairs.
[Loudly] Okay, everyone, quiet down. Who is ready for a conference?
Your Honor, Lawyer 2 and I are here on #49 on your list. This case was Judge Cartwright’s case, but it was just transferred to you. My client suffered severe injuries when a refrigerator fell on her. She’s currently in a wheelchair.
We have reached a tentative settlement, Your Honor; we are just waiting for approval from the insurer. As such, we are respectfully asking for a six-week continuance in order to get the money on the table.
Is that true, Lawyer 1?
Yes, I concur.
That’s fine, I will schedule the next hearing for six weeks from now.
Would you like to hear the details of our proposed settlement?
[Feigns self-pleasure with hand motion and facial expression]
Haha. Did you make it to the Steely Dan concert last night?
Yeah, they were incredible. I’d definitely see them again. Super hung over right now though.
[Steely Dan’s “Deacon Blues” begins to play through the computer speakers.]
Three years of law school, finally over. My 85 or so credits gave new meaning to that overused phrase about days being long and years being short. Now, all that stands between me and my juris doctor is seven more of those long days. Graduating has definitely gotten me thinking about the future, and so while I am in this rare enough moment of reflection, I am going to memorialize some of the things I want to keep in mind moving forward.
I made it. And not even barely; I am happy with my performance. I’ve got a whole summer to study for the bar exam, and since I’m using Themis as my bar review course, I can study at my convenience. I was able to use some of my loans to buy a car (of which I will probably be posting pictures, at some point) and a nice bass guitar and speaker cabinet (which I will definitely be posting pictures of). Many of my friends are buying houses and recording music. Most of the people I know are working and making money. I’m even somewhat employable I think, despite what the news has been saying over my law school tenure. Life is good, and it’s always time to celebrate the good things.
While it is an accomplishment to be proud of, I (and all of us new graduates) need to keep in mind that we are the bottom of the barrel right now. We are mostly useless to anyone who needs us to practice law at this point (although Drexel and its focus on co-ops and clinics make this slightly less true) and we would be pretty lucky if someone would pay us. It’s time to be humble, swallow our pride and dive into our respective job hunts with an open mind and an eagerness to make ourselves useful to an employer. And now, a case study of what not to do:
This young, generically-dressed-and-poorly-groomed gentleman is Joseph Rakofsky, Esq. The Philly Law Blog has a really thorough and engaging write-up about his case HERE, but the gist is this: Joe Rakofsky graduated from law school in 2009, passed the bar, and very quickly got hired to handle a murder case in Washington D.C. He flubbed it, was given the opportunity to withdraw as counsel (with only a few comments by the judge about his inexperience), and suffered the ire of the internet for some of the mistakes he made. He got mad at people talking about him on the internet, and sued something like 74 people and entities at last count (including the Washington Post, Thomson Reuters, the American Bar Association, at least one law school and a number of attorney bloggers) for defamation. And today, finally, his case is over for all intents and purposes. The Order from the Judge is up, and all of Rakofsky’s claims have been dismissed. Unless he appeals, which strikes me as stupid and pointless given the clarity of the Order, he has reached the end.
I see a few things that can be taken from this. First, knowing my limitations is crucial. I am not an experienced litigator. I am not qualified to answer the vast majority of legal questions that friends, family and acquaintances may have of me. Until I pass the bar, I’m not even qualified to give legal advice about things that I do know about. Rakofsky made a crucial error that was pointed out ceaselessly. He advertised himself as an experienced attorney who could handle complicated matters. He represented himself as a seasoned litigator who could represent his clients with all of the tenacity and knowledge that come from years of experience, when really he had none. It is an understandable road to go down on some level. Everyone wants to be the expert and give advice, and attorneys are a narcissistic lot to begin with, but that is no excuse for holding yourself out as someone you’re not.
Along with that, we must remember to have patience. We have a long way to go to get to expert status. The blog I pointed to earlier, the Philly Law Blog, is populated by two young Philadelphia attorneys trying earnestly and honestly to make their way in a solo practice. They really lay out how difficult and rewarding it is to start out, and it has been encouraging to see the kind of support that is out there for new attorneys, solo or not. I’m looking forward to carving out my own place as a Philadelphia attorney. But it never happens overnight.
The deprivation of an individual’s liberty should never turn upon the theatrical presentation of arguments or evidence, the volume and tone of an advocate’s voice, or due to physical acts of intimidation.
I love reading about prosecutorial misconduct, and court responses to it. Part of that is because I am undoubtedly defense-oriented, I’ll admit. Another part is because the conduct is usually so outrageous. When defense attorneys end up in appellate opinions it’s generally because they were ineffective, but when prosecutors do, it’s because they were too effective. But part of the appeal for me is because the lessons written into these opinions are generally more common-sense, applicable to all lawyers. A court explaining why an attorney crossed the line of decency isn’t dealing with an esoteric legal rule (Rule Against Perpetuities, I’m looking at you), it is guiding the profession directly. In this case, what I find fascinating is the connection between the prosecutor’s conduct and reasonable doubt.
All the way back in August, the Pennsylvania Superior Court sent down an opinion (which can be found here) affirming a trial court’s order for a new trial. The criminal court in Venango County (wherever that is) had ordered the new trial for the defendant, who was accused of beating up a 1-year-old, because the prosecutor had gone too far in his condemnation of the defendant.
But what is too far?
The role of a defense attorney, as I have seen it, is to convince the jury or judge that while your client is not a saint, he didn’t do this particular bad thing, or at least may not have. The burden of proof is on the State or Commonwealth, and that is a fact that makes it into every single closing argument. The defense attorney tells the jury to focus on the legal arguments. Failing that, there is a probability argument to be made. Finally, an acknowledgment of the defendant’s flaws is humanizing. All of these things theoretically make the defense attorney’s job easier (although in reality, criminal defendants do end up bearing a de facto burden. Where is your alibi? What were you doing at the scene of the crime, if not committing it? If not you, then who?)
Prosecutors, on the other hand, have it way harder. They have to prosecute most of the cases that come across their desk, taking the word of a witness or police officer as gospel truth. On the one hand, they have the benefit of police investigations, experts, and the credibility of police officers (usually) to help their case. But on the other hand, they have to convince the judge or jury that what the defendant is charged with absolutely happened, and happened how the witness says it happened. “Beyond a reasonable doubt” is a high burden, and any doubt on the part of the prosecutor can be fatal to a case. A jury can tell when the State’s attorney doesn’t believe his or her own witness, and they won’t believe the witness either. All of this gives rise to the need for the prosecution to look absolutely certain of the defendant’s guilt, even if they’re not.
Thus, situations like the case I started talking about happen:
First, “[d]espite instruction by the Court to cease doing so [during both opening and closing arguments], the [prosecutor] continued to physically intimidate the Defendant during his closing argument by invading the personal space of the Defendant and his attorney by pointing his finger in their faces.”
The prosecutor “menaced” the defendant and his attorney by going right up to the table where they were sitting, pointing and gesticulating at them. Drama and emotion play well to juries. That’s why court rules keep them to a minimum. Then it becomes personal:
the prosecutor told the jury that Culver was “the most unreliable historian we’re ever going to meet[,]” “probably the most unreliable, unbelievable person that you are ever going to come across[,]” and that Culver was “lying, lying, lying, lying, and lying.” Id. at 18 (citing N.T., 3/19/10, at 109, 140, 141). The prosecutor also told the jury during closing arguments that Culver was “somewhat the compulsive or pathological liar . . . .”
Not only did the prosecutor seek to prove that the defendant did the crime, but he also wanted to show that the defendant was a BAD GUY. If he’s a BAD GUY, then the jury will convict him, even if the actual evidence does not rise to the level. With the evidence that prosecutors are generally given, I believe that reasonable doubt, properly applied, would eliminate many cases from the docket. I couldn’t say how often any given prosecutor actually believes beyond a reasonable doubt that any particular defendant is guilty, but I think that it’s probably less than they say they are sure.
While going through my pictures, I happened upon a photo I snapped a few months ago, while taking a class in criminal procedure. It raises a number of questions for me.
This picture is of a police officer leaning on a railing, relaxing with drug dog in front of him. Because of where he is standing, in order to get on the RiverLine platform from the transportation center, you either have to walk over the tracks and climb up the two-foot platform (which some people do) or walk all the way around (which no one does).
Immediately upon seeing this situation, I became nervous to walk past the pair and get on the platform. Don’t get me wrong; I do not do any drugs or carry them around, and that day was no exception. I’m not worried in the least about the dog catching me with drugs. I have other problems with this picture:
2) If I were to avoid the officer, am I raising suspicion? Reasonable suspicion? It is common practice for police to station a “chase car” before DUI checkpoints to watch and follow people who attempt to avoid the upcoming stop. If I try to ride the train without subjecting myself to the dog’s nose, what then?
3) What about the Fourth Amendment? This is where the caselaw becomes slightly unsettling. In United States v. Place, the Supreme Court found that a dog sniff search at an airport was not a “search” for Fourth Amendment purposes. It held, rather bluntly, that “the particular course of investigation that the agents intended to pursue here — exposure of respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a “search” within the meaning of the Fourth Amendment.” And it has only gotten worse. Illinois v. Caballes sanctioned dog sniffs during routine traffic stops, as long as the process does not lengthen the traffic stop unreasonably. I have no doubt that what this officer did was legal under federal law. That makes it no less questionable.
4) As my professor said last semester, maybe some people just have a problem with dogs. I’m personally afraid of dogs, especially ones that are the size of the one in the picture. This does not appear to be a concern of the officer. And in seeking to avoid the dog, I’d somehow be creating reasonable suspicion that only a Terry frisk can alleviate, I’m sure.
What the officer is doing in the picture is probably effective, and definitely legal. I understand why he would do it. I just don’t like what it says about where we are as a country.
Everything looks better in black and white! (I'm in the middle)
Hello and welcome to little round mirrors.
My name is Matt, and I’m a law student and musician in the Philadelphia area. I have thoughts and observations about both of these things, and I want to create a repository for these musings. At first glance, there doesn’t seem to be much overlap between law and music (besides contracts, intellectual property and noise ordinances). But both exist in community form; both have their own languages, written and oral; both are based upon rules, and some of the best of both involves the creative bending of those rules. I hope to explore the interesting intersections and delve into the minutiae. The result will hopefully be at least a little thought-provoking. It will certainly be an interesting look at my development in both fields.
On the other hand, I will probably also write about both separately. They’ve generally remained separate in my life (except for those lyrics I just wrote for a song based on the Trial Advocacy case Dixon v. Providential Life Insurance Co…) so I imagine that they will remain separate in this blog often too. Well, too bad!
Thanks for coming, and I hope you subscribe and enjoy!