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Posts Tagged ‘trial’

The snark! It burns!!!

Every so often a judge comes along with a razor wit that puts much of the confrontational silliness of our adversarial legal system into proper perspective. For a long time, Judge Sam Kent of Galveston, Texas filled that role: “With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor’s edge sense of exhilaration, the Court begins.”

Today, we have Judge Martin Sheehan of Kenton County, Kentucky, who expressed poetic elation at the settlement of what must have been a nasty lawsuit:

Kenton Circuit Judge Martin Sheehan said in an order issued last month that he was “happier than a tick on a fat dog” that a settlement had been reached in a lawsuit over a contract dispute, according to the Lexington Herald-Leader.

In the order canceling the trial, which had been set for July 13, Sheehan wrote the court is “busier than a one-legged cat in a sand box and, quite frankly, would rather have jumped naked off of a twelve foot step ladder into a five gallon bucket of porcupines than have presided over a two week trial of the herein dispute, a trial which, no doubt, would have made the jury more confused than a hungry baby in a topless bar and made the parties and their attorneys madder than mosquitoes in a mannequin factory.”

The newspaper said Sheehan and attorneys in the case either declined to comment about the order or did not return calls.

Clearly the judge made a mistake when he chose law school over that creative writing course.

(Full order available here.)

Photo by Ket Quang,

This is meant to represent frustration, or something.

Sometimes it is nice to have a judge call out a situation like he sees it. Mind you, I don’t know that background of this case, but I can imagine frustration with overwhelmingly vast disputes run amok through the courthouse. It’s heartening to see a judge with a sense of humor, but it’s also a bit sad to see how badly we seem to need humor coming out of our legal system, as Judge Sheehan himself notes:

Sheehan said he was taken aback by the volume of calls regarding Kissel v. Schwartz & Maines & Ruby Co et al. In the week since Sheehan distributed the ruling to the attorneys, his office had been contacted by news outlets in Los Angeles, Houston, Chicago and New York, he said.

“It’s a sad comment on the legal profession,” Sheehan said. “A judge puts a little humor in the judicial opinion, and it goes viral.”

For my part, I say keep the snark coming.


A little less extremism in pursuit of child safety, please

Photo by billsoPHOTO

Photo by billsoPHOTO

Stories about children in danger, especially abut the death of a child, create emotional responses that override the logical parts of our brains. Sometimes those illogical responses extend all the way through the legal system. Such is the case of Racquel Nelson, the Georgia mother whose child was struck and killed by an oncoming car while they were trying to cross a busy highway. She was charged and convicted of vehicular homicide, and possibly faced a longer jail sentence than the man driving the car, all because she joined a group of people crossing the street after disembarking from a bus nowhere near a crosswalk. Make no mistake that this is a tragedy, but the tragedy inspired Cobb County prosecutors to leave sensibility behind and prosecute a grieving mother. David Goldberg of Transportation for America hits on the real problem here (h/t Free Range Kids):

Because Nelson did not lug her exhausted little ones three-tenths of a mile from the bus stop to a traffic signal in order to cross five lanes of traffic, she is guilty of vehicular homicide. Because she did as her fellow bus riders, who crossed at the same time and place, and because she did what pedestrians will do every time – take the shortest reasonable path – she is guilty of vehicular homicide.

What about the highway designers, traffic engineers, transit planners and land use regulators who allowed a bus stop to be placed so far from a signal and made no other provision for a safe crossing; who allowed – even encouraged, with wide, straight lanes – prevailing speeds of 50-plus on a road flanked by houses and apartments; who carved a fifth lane out of a wider median that could have provided more of a safe refuge for pedestrians; who designed the entire landscape to be hostile to people trying to get to work and groceries despite having no access to a car?

They are as innocent as the day is long, according to the solicitor general’s office.

There is a little bit of a light at the end of the tunnel for this story. After much media attention and an internet petition campaign, the judge in the case decided not to sentence Ms. Nelson to jail time, instead giving her one year probation and 40 hours community service. Ms. Nelson’s lawyer has indicated that she will be opting for a new trial.

I don’t doubt that it is dangerous to try to cross a busy street with children in tow (see here for a picture of the scene), but imposing criminal liability for taking a shortcut is a dangerous precedent. This was no Interstate highway–the photo clearly shows sidewalks along the road. I often read Lenore Skenazy’s Free Range Kids–despite having no children myself, it is important to know how far society is going in the name of protecting children, and how far is too far. Expanding the scope of criminal prosecution beyond the point where people are aware they might be committing crimes benefits no one in a free society. It doesn’t help Ms. Nelson’s child, nor will it help any other child in the future.

Photo by revkev7

The last few posts have been pretty dour. Here's something cute. (Photo by revkev7)


Strauss-Kahn, Anthony, Jones: the system worked, whether we like the outcome or not

For those living under rocks or in soundproof chambers, here’s a review of a few legal events of the past few weeks (trigger warning for sexual assault issues):

Here we have three cases that strike incredibly sensitive nerves. One involves the murder of a child, and two involve rape. In all cases, the alleged aggressor seems to have prevailed. But the results of these legal proceedings do not mean that DSK’s accuser was not raped, that Casey Anthony is not a murderer, or that Jamie Leigh Jones was not raped and imprisoned in a shipping container. Prosecutors in New York may no longer feel that they could win a prosecution against DSK with the evidence they have, making it not worth the colossal expense of continuing the case. Florida prosecutors did not prove beyond a reasonable doubt that Casey Anthony murdered her daughter. A jury did not find a preponderance of evidence to support Jamie Leigh Jones’ case. In the last two cases, these were the conclusions of lawfully empaneled juries. We may not like the results. The results may make us sick to our stomachs. What is important, though, is that the system appears to have worked the way it is supposed to.

True, the victims did not get “justice” in these cases, but that is not the point of judicial proceedings. Alan Dershowitz wrote in response to the Anthony trial:

‘This case [is] about seeking justice for Caylee . . .” So argued the prosecutor in the Casey Anthony murder case. He was wrong, and the jury understood that.

A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. That’s because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial.

A criminal trial is neither a whodunit nor a multiple choice test. It is not even a criminal investigation to determine who among various possible suspects might be responsible for a terrible tragedy. In a murder trial, the state, with all of its power, accuses an individual of being the perpetrator of a dastardly act against a victim. The state must prove that accusation by admissible evidence and beyond a reasonable doubt.

Even if it is “likely” or “probable” that a defendant committed the murder, he must be acquitted, because neither likely nor probable satisfies the daunting standard of proof beyond a reasonable doubt. Accordingly, a legally proper result—acquittal in such a case—may not be the same as a morally just result. In such a case, justice has not been done to the victim, but the law has prevailed.

If we try to go outside of the system of trial by jury, we become no better than an angry mob. A proposal of sorts has already appeared based on frustration over the Anthony verdict:

[Senate Minority Leader Mitch] McConnell drew a lesson Sunday from that case in connection with the debate in Washington over whether to try suspected terrorists in federal courts.

“These are not American citizens. We just found with the Caylee Anthony case how difficult it is to get a conviction in a U.S. court,” McConnell told “Fox News Sunday.” “I don’t think a foreigner is entitled to all the protection in the Bill of Rights. They should not be in U.S. courts and before military commissions.”

McConnell is only correct if the whole purpose of a trial is to secure a conviction. I don’t particularly want to get into the issue of terrorism trials here, but the apoplectic reactions to the combined acquittal/conviction of Ahmed Ghailani for the 1998 U.S. embassy bombings certainly show that for many, there is no point to having a trial if a conviction is not guaranteed.

In a civil case like Jamie Leigh Jones’, “justice” is more of a clear goal. Rather than proof “beyond a reasonable doubt,” a civil claimant need only show a “preponderance of the evidence,” meaning a 51% or more likelihood that their claims are true. Again, failure to convince a jury does not automatically mean the claims are false. It means that the evidence is lacking to allow for a legal remedy or punishment.

It is the responsibility of the plaintiff and the plaintiff’s attorney in a civil matter, and of the prosecutor in a criminal matter, to meet these burdens of proof. It is the responsibility of the judge to make sure the jury only hears relevant, probative evidence that does not unfairly prejudice one party or the other. The system is not perfect, but again, it is preferable to an angry mob.

There is no requirement that we like the outcomes of these cases. There is also no guarantee of justice in this world. There is, however, a system that has been in place for centuries that is imperfect, often inefficient, frequently infuriating, and the best protection we all have against even greater injustices than the occasional acquittal or dismissal. That is our system of trial by jury. To quote Voltaire, “It is better to risk sparing a guilty person than to condemn an innocent one.”


Update on the cheerleader case

A few weeks ago I wrote about a case in Texas involving a cheerleader, a sexual assault case, and a First Amendment claim.  I have since come across the actual court opinion from the Fifth Circuit (PDF), and it is worth a read.  However horrifying the facts of the case may be, I have to agree that nothing constituted a First Amendment violation.  This story seems to have mostly passed out of public awareness, but it seemed worth a brief follow-up. Since I last wrote about it, the “loser pays” bill in Texas has been the talk of the town. I hope this girl can find some other path to justice.


Texas cheerleading and the lack of easy answers

Texas cheerleading is something of a religion unto itself. It also has a peculiar history of scandal and other legal oddities (I’m looking at you, Wanda Holloway).  The latest news, involving a cheerleader known only as H.S. (or M.S., depending on where you look), should not be lumped into the strange history of Texas cheerleading, though, as it involves some thorny questions that still have my head spinning.

In short, in 2008 a cheerleader was sexually assaulted by a basketball player, who plead guilty to misdemeanor assault but never went to jail.  A few months later, she refused to cheer for him during a free throw, and was expelled from the cheerleading squad.  Her family then sued the school, alleging violation of her First Amendment rights.  The courts disagreed, and the Supreme Court has declined to hear the appeal.  She is now stuck with a $45,000 tab for the school’s legal fees.

I can’t possibly go into an in-depth analysis of this with the little information that I have.  I was initially content to tweet a few links about it yesterday, but a response that I received to a tweet got me thinking about the situation:

Truth be told, at the time I wasn’t sure why I retweeted the story–it just seemed important. Upon reflection, I think it is all of the reasons stated in the reply.  It is (I certainly hope) impossible not to feel sympathy for H.S. in this case.  The sympathy is certainly pouring out all over the internet, as well as outrage.  Not knowing all of the facts makes it especially frustrating–how did it get to a point that she was apparently forced to decide at court side whether or not to cheer for this guy?  There appears to be no question that he is guilty.  On the one hand, why would she want to put herself in the position of having to maybe cheer for him, but on the other, much bigger hand, why would the burden be on her in the first place??? I don’t know why he isn’t in jail, and I won’t speculate.  I also don’t know why, a few months after pleading guilty to assault, he was still playing basketball.  That may be a discussion for another day.

Bottom line, it seems wrong that this situation even happened.  How did these two people end up back in these same roles after what happened between them?  It is very easy to feel the greatest sympathy for her, for making a seemingly simple and rational decision and being punished for it.

Then we come to the lawsuit itself, and my sympathy becomes, uh, conflicted.  I just don’t see any sort of First Amendment claim here.  The courts concluded, to put it briefly, that in her role as cheerleader she was a spokesperson for the school, and her job was to perform or say what the school wanted.  That makes sense (in the absence of the emotion of this particular case).  At least in theory she had other options besides a federal constitutional lawsuit.

That brings us to the outcome–the case was dismissed, and she must pay attorney’s fees as a result of filing a frivolous claim.  I cannot honestly say that the claim was not frivolous, but I cannot say that the court’s order is just.  This illustrates a point that is often lost on many people, lawyers included: just because an action is legal (or not illegal) does not mean it is proper, and just because a form of relief is available, does not mean it is just.

Perhaps the cheerleader was wrong, in the context of her job as cheerleader, to refuse to cheer.  Perhaps the school was justified, in the context of a cheerleader who refused to follow procedures, to kick her off the team.  It seems so tidy on paper, but what on earth were they thinking?

The lawsuit, from a legal perspective, was also wrong (in that it made a claim not supported by the law).  A common remedy for someone subjected to a frivolous claim is to have their opponent pick up the legal bill.  But again, is that really justice in this case?  I can’t say the court was wrong–they applied the law, as far as I can tell.  I also can’t say the court was right.  Everyone was right, and everyone was wrong in this case.  And I couldn’t say that in 140 characters.



It’s not easy being a new lawyer, but it’s important

I may a little late to the party commenting on Joseph Rakofsky, since it’s been two weeks since the story first broke in legal circles.  The story is worth noting, though, since I suspect it is something many lawyers who started out solo can understand–even if personal experience has not been as bitter.  To bring you up to speed, Mr. Rakofsky is a New Jersey attorney who had a murder trial in D.C. result in a mistrial for some unconventional reasons:

A Washington, D.C., judge declared a mistrial in a murder case Friday, saying he was “astonished” at the performance of the defense lawyer who confessed to jurors he’d never tried a case before.

Judge William Jackson said lawyer Joseph Rakofsky did not have a good grasp of legal procedures, citing as an example the attorney’s rambling opening statement in which he told of his inexperience, the Washington Post reports. Rakofsky graduated from Touro law school in 2009 and obtained a law license in New Jersey less than a year ago, the story says.

Rakofsky had repeated disagreements with his local D.C. counsel, causing his client, Dontrell Deaner, to become “visibly frustrated,” the Post says. On Friday, Deaner told the judge he wanted a new lawyer.

The judge declared a mistrial after reviewing a court filing in which an investigator had claimed Rakofsky fired him for refusing to carry out the lawyer’s emailed suggestion to “trick” a witness, the story says. Rakofsky’s suggestion allegedly read: “Thank you for your help. Please trick the old lady to say that she did not see the shooting or provide information to the lawyers about the shooting.”

Based on the news coverage, it does not sound like there is very much this lawyer did right:

News of the mistrial spread throughout the courthouse as observers raced into Jackson’s third-floor courtroom Friday to watch the proceedings. The judge, now obviously angry and frustrated, told Rakofsky that his performance in the trial was “below what any reasonable person would expect in a murder trial.”

“There was not a good grasp of legal procedures of what was, and was not, allowed to be admitted in trial, to the detriment of Mr. Deaner,” Jackson told Rakofsky.

Jackson said the most evident sign of Rakofsky’s inexperience came during his rambling opening statements before the jury Wednesday, which lasted more than an hour, more than 30 minutes longer than most attorneys’ openings. During his opening statements, Rakofsky repeatedly made reference to children playing “in the projects of Southeast D.C., where there was always gambling, guns and drugs.”

“There are drugs in the projects of Southeast D.C. There are guns all the time and drugs,” Rakofsky told the jury.

The prosecutor repeatedly objected over the relevance of Rakofsky’s statements. Rakofsky said the “children” were a symbol of what his client had endured growing up in that neighborhood. Jackson told Rakofsky to focus on the case, especially because none of the “children” he referred to was scheduled to testify.

Later during his statement, Rakofsky informed the jury that the case was his first trial. The revelation shocked Jackson, the judge revealed at Friday’s hearing. “I was astonished someone would represent someone in a murder case who has never tried a case before,” the judge said.

Rakofsky did not speak during Friday’s hearing.

There are quite a few issues to unpack there. First off all, it is never okay for a lawyer to try to trick someone into making an untrue statement. It’s just a bad idea.

It also doesn’t help that, after a ruling that’s sure to be a PR disaster, the lawyer went online and bragged about it.  Probably not the best idea.  It’s also possible that he was his own sockpuppet on articles and blog posts talking about his case.

Others have already chronicled and cataloged many, many examples of this guy’s unusual public persona.  Military Underdog offers a good overview.

As more details about the story came out, it became clear that this was not just a story of a young lawyer who got in over his head.  This is also a story of a lawyer who blatantly broke ethical rules and promised more than he could deliver:

Henrietta Watson stood inside the downtown Manhattan courthouse waiting for one of her grandsons to be released from jail. A young lawyer approached and asked if he could help.

Watson and her husband declined. But the couple told the lawyer about another grandson in Washington, who was charged in the fatal shooting of a Virginia man. That case interested the lawyer, who gave Watson his card and introduced himself as Joseph Rakofsky, Watson said.

Watson, 71, said she told Rakofsky that she wasn’t interested in hiring him even for the murder case because the family couldn’t afford the $25,000 to $30,000 normally charged in such cases.

But Rakofsky, 33, called her, Watson said. And again. She said he told her that he had worked on criminal cases before. And he told her that he would charge $10,000. Watson decided to “give him a chance,” she said, impressed with his tenacity and his willingness to work on her grandson’s case, especially for such a low fee. The Watsons took out a loan, paid him $7,700 and agreed to pay the rest when the trial was over.

So here we have Joseph Rakofsky, the 33 year-old lawyer with barely two years experience from a not-terribly-highly-ranked law school, making a promise that was too good to be true to someone in a vulnerable position, getting himself into deep legal waters, winding up an industry punchline, and bragging about it all.  To which I say: it could have been any one of us (lawyers, I mean).

This is my blog.  I don’t really want to talk about Joseph Rakofsky; I want to talk about me.  Mr. Rakofsky’s case got me thinking about how I got started in law.  I started out part of a three-man shop, mostly practicing criminal defense, and I can definitely say that there are some very fine ethical lines out there.  I don’t defend any of the actions described in the coverage of Mr. Rakofsky, but I can’t quite bring myself to completely condemn the guy, maybe just because I’ve seen some similar stuff.

This case brings to mind several issues that troubled me in the early days of lawyering:

  1. Practicing outside of your primary geographic area;
  2. Handling a case that requires a large amount of time and attention; and
  3. Your very first big trial.

Hopefully I’ll make this into a series: Thoughts on Solo Lawyering.