Thursday, March 24, 2022

Sour 🍇

There’s a definition of crime that I call the “Perry Mason” level. I like "Perry Mason".  I watch the re-runs almost every morning. Yesterday Hamilton Burger stood up in court for the preliminary hearing Perry always wins, and said:”As to motive, your Honor…” That’s a Perry Mason moment. Aficionados of murder mysteries obsess over the motive. Most murder mysteries are built around it. But at law? The law doesn’t give a wet snap for motive.

Which is my way of saying “crime” in the popular parlance (or the court of public opinion) is not the same thing in legal parlance (or the real court, of law).

I’ve known prosecutors. They tend to be very convinced of the righteousness of their prosecutions and the wrongness of the defendants. You may think that is a strength, but I saw it/see it as a weakness.

When I worked for a law firm (I practiced law as a lawyer three years later, for about the same amount of time I worked for the law firm before law school), I quickly learned that while we had to mount a vigorous defense for our clients, we also had to be objective and honest about the facts, as well as the law.  The law as applied in courts is grounded on the facts.  Just as a doctor needs to make the correct diagnosis (consider all the facts) to prescribe the right treatment, a lawyer needs to consider all the facts to provide a proper defense; or to bring a civil action for the plaintiff.  Either way, you may need to convince the court your client is wronged/guiltless, but you never swallow the kool-aid (as the kids say) and convince yourself your client is beyond reproach and would never tell a lie.

Clients lie.  It's a truism of legal practice.  I don't mean they intend to lie.  I mean they just leave certain uncomfortable facts out.  Perry Mason encounters this constantly.  In Act 3, when things look darkest for Perry's client, they reveal some fact that's just come out in court nad weepingly apologize for not being "completely honest."  Perry always expects his clients to be completely honest.  A real trial lawyer knows better.  You never take your client's claims at face value,  You always expect some fact will appear that you were unaware of.  You do your best (discovery in civil cases; Perry relies on Paul Drake) to uncover all the facts you can.  You also know you haven't.  The best civil defense lawyers I knew defended the case against their clients.  They never defended their clients.  It's a fine, but necessary, distinction.  Prosecuting attorneys I knew always prosecuted the suspect.  They didn't just prosecute their case.

Which is not to say I knew all prosecuting attorneys.  But I was stunned how prone the ones I met were to believing with the fervor of a religious convert that they were on the side of God and righteousness, and anyone who came within their ambit was guilty and deserved all the punishment the law allowed, without quarter or qualm.  I worked for lawyers who tried civil cases on the basis that damages were clearly allowed, the only question was:  how much?  Criminal prosecutors seemed to work on the principle that the suspect was guilty, the only question was:  how soon would justice be levied upon them?

The one criminal case I tried was a case where the suspect truly had no defense to the crime.  He was a convicted felon, he'd been stopped for a traffic violation with a shotgun (IIRC) in the package tray (this was in the days before SUV's were ubiquitous).  He was the sole occupant of the car.  That situtation constituted "possession" under the law, even though he swore the gun was not his.  It wasn't, but it didn't matter.  The AUSA trying the case was professional; the other lawyer (who soon became my employer) and I were assigned because we had licenses in Federal District Court.  We were not criminal lawyers, by any stretch.  The AUSA almost gleefully, I thought, presented the evidence to the judge, in a way gauranteed to present our client as a vile transgressor of the law protecting decent citizens from people like him.  It was a bit over the top, in other words.  He knew we had no defense, and we did, too.  But he enjoyed his five minutes of total domination in the courtroom.  He was right, our client was guilty of the crime.  I've known other prosecuting attorneys who couldn't see how the people they charged were not guilty, wouldn't admit for a nanosecond that some other explanation could be given, some defense soundly raised.   You may think that was sheer professionalism, but I knew a lot of civil lawyers who readily admitted their case/defense was imperfect, but still felt it was worth presenting in court because judges and juries and who knows, right?  Those people I was comfortable with.  Criminal prosecutors were always too zealous by half.

Pomerantz, whose legal career ping-ponged between prosecution and defense, mostly for organized crime and “white collar” defense, and who was law partners with Ron Fischetti, another major player in that sphere, who now represents the target of Pomerantz’s certainty, calls the failure to indict Trump a “failure of justice.” And so many want so much to believe he’s right.

Mr. Pomerantz’s Feb. 23 letter, obtained by The New York Times, offers a personal account of his decision to resign and for the first time states explicitly his belief that the office could have convicted the former president. Mr. Bragg’s decision was “contrary to the public interest,” he wrote.

Newly-elected New York County District Attorney Alvin Bragg is certainly no friend of Trumps, but he’s also no friend of being the first and only district attorney to prosecute a former president, particularly one as nefariously venal as Trump, and he doesn’t want to lose. Something about “killing the king,” perhaps, but more likely about the efficacy of his office and legacy. Being the prosecutor who took down Trump would be one thing. Being the prosecutor who lost to Trump would be another. Either way, you make the history books.

“The team that has been investigating Mr. Trump harbors no doubt about whether he committed crimes — he did,” Mr. Pomerantz wrote.

This is a cheap thing to say. Who cares that the team harbors no doubt? They aren’t the jury. They can believe with all their heart and all their soul and all their might, but that doesn’t mean the jury will do the same, particularly since their beliefs are grounded in their view of the evidence before Ron Fischetti shreds their witnesses on cross.

And then there’s the problem of the team having lost its non-believers. It’s akin to people who say “everybody I know agrees with me,” which reflects more about who they know than about what they believe.

As of late December, the team investigating Mr. Trump was mostly united around Mr. Vance’s decision to pursue charges — but that had not always been the case, The Times reported this month. Last year, three career prosecutors in the district attorney’s office opted to leave the team, uncomfortable with the speed at which it was proceeding and with what they believed were gaps in the evidence.
There are two ways to make the prosecutorial team unified in their position on the evidence. Get good evidence or get rid of prosecutors who question whether the evidence is sufficient. Here, the disbelievers bailed. So while Pomerantz may well be right that the current team is all on board, it’s not because the team didn’t once include doubters, but because the doubters have since left the team.

For many, the notion that Trump is dirty is beyond question, and he may well be. It would surprise no one familiar with Trump and his business shenanigans from before his pulling off the wildest election stunt imaginable to learn that the shameless miscreant was also a criminal. But that requires evidence that proves each element of a crime beyond a reasonable doubt. Did the district attorney’s team have the goods? Pomerantz says so. So what?

The court of public opinion will say what it wants to say, and will whine again that "justice" is not being done because....well, because "LOCK HIM UP!"  Remember when that was an appalling thing to say?  Now former Harvard Law professors are saying it and we're supposed to say "THAT'S RIGHT!" Well, no, it's not right, and you don't have to be Alan Dershowitz-sympathetic to say so.  Actually, to me all of this comes down to a disgruntled employee making a lot of noise on his way out the door.  As Greenfield says in response to a comment on his blog, Pomerantz wrote this letter for publication (and probably made sure it reached NYT and other news outlets).  Frankly, that borders on unethical, to me.  No really a violation of legal ethics, but pretty sleazy practice to claim you coulda won the case if your hands hadn't been tied.  Sour grapes, if you ask me.

We don't need any more of that injected into the public discussion.  Becoming ever more like Trump is not the way to repudiate Trump. I mean, Trump himself could have written this caption, just by changing the reference to "Crooked Hillary":

And claiming "Democracy is under threat" doesn't sanctify it, or even sanitize it.  We can do better than this.
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1 comment:

  1. The Thought Criminal3:23 PM

    I'd say democracy is under threat until the Voting Rights Act is restored, Trump was only a symptom of the underlying threat.

    ReplyDelete