BRADY’s LAWYER DEAD at 90

So, Brady’s lawyer died at 90, a good age, time to do enough and live. Didn’t you want to know what some of these lawyers and defendants looked like? How many times do you ask for Brady material? Did you ever read the original case and then look to see how it has been eviscerated?

Don’t forget Brady applies to stuff that inculates and exculpates, though prosecutors are loathe to say anything positive about those they think to indict and convict. One might ask the latest SCOTUS nominee what he thinks of it, too.

Sheriff Joe Must Lose, Too

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Imagine what Trumpsky would do to the Criminal Justice system with friends like Sheriff Joe and Rudy Kazooti.

Defeat Joe and judges could do justice again, not being afraid of how he would ruin their judicial careers. No more tent city prisons with unsafe and unhealthy sanitary conditions. No more racial profiling. People free to drive the streets and live in Nevada.

Sheriff Joe has been charged in a Federal complaint with contempt of court for profiling latinos. Trumpsky’s Justice Department would dismiss the complaint and probably increase Joe’s budget.

President Obama, Don’t Call Me

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Having been declared unfit for Judicial Office in July, 1998, because, according to the per curium opinion, I put my own interests above that of society, lacked judicial temperament and violated the law, I remove my name from consideration to replace Justice Antonin Scalia.

In addition to my having been declared legally incompetent, irrelevant and immaterial, along with allegations I was a domestic abuser, racist, sexist and insane, I would refuse to serve even if I were nominated and approved; the process would be too painful. I have been beaten and abused quite enough. Not tough or thick skinned, anymore. The establishment won. It destroyed my dreams, my legal and judicial career; took my Mother, home and place in the community; and ruined any chance I could do social justice, leaving the world better than I found it. Find someone else, Mr. President, I have been made quite miserable enough.

And, this time, during the interviews, when my removal came up, I would tell you honestly what I did and what I think of the Criminal Justice System, unrestrained by the hope I would have been reprimanded and put back on the bench when I kept my mouth shut and the hope I would get the exalted job on the Court.

Sadly, Judge Kaye just died and I never got to ask her if she read the record and really believed the finding that she based my removal on. Judge Lippman lives, as do Judge Ciparick and my erstwhile lawyer. One day, maybe I will find out what happened to me. 20 years, almost to the day, and, yes, I have not gotten over it and never will.

My qualifications, Mr. President, make me the ideal choice for the job. I would bring life experience to the interviews. When I raised the issue during my misconduct hearings, the Commissar ridiculed me for my “morning milk,” “legal realism” approach to the job. I was against mass incarceration, putting drug users in jail and exacting fines from those who had no money and no jobs. I refused to set silly bails asked by recently admitted with large law school debts ADAs reading off cue cards handed to them by Supervisors in lofty offices making more than I was, preferring to find alternatives based on community ties. But, alas, that caused me to be denominated as “anti-prosecutorial.” Now, who knows.

Twenty-five years ago, when I was still somebody, I met Justice Scalia at a Judge’s reception at New York County Lawyers. I was a NYC Criminal Court Judge, a Dinkin’s appointee, sitting in the Bronx, moving the calendar, deciding motions and conducting trials. I asked him, after introducing myself, if he thought that sitting in a trial court doing the work most judge do would have made him a better judge. The handlers gasped, as he sipped his wine and responded (don’t remember exactly due to my then anxiety and present aging brain, but close enough): “… don’t know how you do it. In a millisecond, you make a decision to admit or deny and then years later, I get a case which I discuss for 6 months with three of the smartest people to graduate from law school and decide whether you were right or wrong.”

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The image came from a website called, conveniently, JEZBEL. Cannot make this shit up.

A year in jail? He’s a kid. She’s a kid. What do either of them know? They both have a lot to learn. But jail? A year in jail?

The judge sentenced the kid to incarceration, avoiding being sentenced himself. Soft on crime. Insensitive to victims of domestic violence. Too cognizant of the power of the monied.

A sidetone: many years ago when I worked hard as a trial lawyer, I tried a sexual assault case in the Bronx. Lawyers had avoided these cases and the Administrative Judge, Billy Kappelman, literally roamed the halls, robed, with his Law Secretary, looking for lawyers to try these cases. The bureau chief of the newly created sex crimes bureau had a ton of cases, evidence laws had been skewed to protect the accuser (who was still called a victim) and lawyers felt queasy asking questions about what went on below the waste, especially if it wasn’t face to face. And, most of these guys were in jail, unable to make bail. Judges kept them in to avoid being chastised for being soft on the victimization of women, despite most of the crimes are “he said, she said”.

These were assigned cases and when you are building a practice, you need the experience trying cases, so you do it. Every witness who testifies that your client did it is a tough one to question and it doesn’t matter if it’s a murder or a rape or a urinating in public. You do it, because it’s the 6th Amendment and all accused are entitled to counsel and a trial. It’s also one of those reasons the system for appointing Public Defenders and Assigned Counsel is assailed: you don’t always get the most experienced attorneys. Sometimes, no, not so much anymore, you get indigent attorneys representing indigent defendants. It’s not that I was a babe-before-the -bench; I had 20 trials under my belt. But poor people cannot afford Ben Brafman and Ben Brafman cannot afford to represent people who don’t have money.

Well, the case went in poorly. All the complainants prior sexual experience discovered through diligent investigation had been excluded. She came in dressed and prepared. A social worker and cop watched from the front row, lending credibility to the process. If they, the system believed her, you, the jury should too.

Every question I asked on cross brought a grimace or an objection. She stopped to sob or cry, bringing the ADA to their feet with a hankie. After getting the best version of the events I could, I stopped. Then, my client took the stand, with my approval and to the consternation of the ADA. He told his story. And the ADA couldn’t budge him.

What really happened? Who knows? Truth? What is truth? It’s always distorted, even if under oath. The prosecutor argued that, “… of course he would say that. He’s on trial. He’s the one who could be convicted. He’s a rapist.” Yada, yada, yada. Did you hear the questions asked by his attorney, an argument that put me on trial, like I was somehow promoting sexual violence by defending him. Weren’t you listening. Did you see her pain. She will live with this forever. The violence. The shame.

In substance the ADA posited that why would a woman come here and testify if she weren’t telling the truth? CODE – she talked about having a penis in her vagina, a personal thing, a private, intimate event to a group of strangers. Truth! What the witness said was the truth and you must convict.

Me. I argued the law, the medical reports and the fact that everyone was equal here and there was no way to understand how the incident happened or how it ended with any degree of certainty. I humanized my client, not an easy task, suggesting that she picked him up, not the other way around. So, if you didn’t like him, too bad, she got him to take her home. He’s thinking sex. Who knows what she’s thinking? In the South Bronx, you didn’t go to talk about Homer or Voltaire in those days. And, if you want to know who showed courage here by testifying, it was him, not her. He’s the victim, not the other way around.

No vaginal tearing. No bruises. No scratches, except on him. And it took place in his apartment, a place she went voluntarily.

The jury acquitted in less than an hour. They hesitated after the Judge’s instructions to have lunch and schmooze. I never talked to jurors after a verdict. It never teaches you anything about juries or the system, except not to listen to them. One juror, a middle-aged, middle class woman, walked over to my client as she was leaving the courtroom, shook his hand and whispered in his ear, “Be more careful with the next woman.”

Doctors In VT Performing or Counselling Women About Abortions Can No Longer Be Criminally Prosecuted

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So, in 1970, a year before Roe v. Wade, Jack Beecham, a resident at UVM counseled a woman seeking advice concerning an unwanted pregnancy, but refused to perform an abortion on the grounds he could be prosecuted for a crime. Under Vermont’s Penal Law at the time. a physician who counseled women about or performed abortions was chargeable with a crime carrying with it mandatory jail time. The woman asked the Court to allow her to seek out a doctor for advice and have the abortion by declaring that the law was unenforceable. The then Attorney General and later U.S. Senator James Jeffords and then Chittenden States Attorney, now U.S. Senator, Patrick Leahy, opposed the application, despite the fact abortion was not illegal in VT. The Supreme Court of VT agreed, saying that a law could not deny a woman the right to consult a doctor or have a procedure the Legislature had not made illegal by prosecuting the doctor. The woman went out of State for her abortion, something she would no longer have to do today. Dr. Beecham stayed and enjoyed a long career in OB/Gyn treating women with cancer.

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Governor Shumlin signed a bill, yesterday at Planned Parenthood of Northern New England, repealing that law. In his remarks, he stressed that Vermont would always protect the rights of its citizens, especially its women. Not that anyone would be prosecuted under the law, according to the present Attorney General, William Sorrell, who was also in attendance. But by taking it off the books, it creates a clear line between the people in need of counsel and treatment and those willing to provide it. No place to hide.

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Meagan Gallagher, CEO of PPNNE, thanked the legislators in attendance who supported the bill, reminding everyone that the fight for women’s rights is far from over.

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Proud members of the Legislature who supported the bill stand Meagan Gallagher and Nick Carter of PPNNE. Nick helped push the bill through the legislature.

Molly Needs A Valentine

As Chet Baker sings, … everyday is Valentine’s Day.” Not for Molly. She’s still on the street. Hard enough not having a place to live.

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David’s back, too. He’s still lost and adrift. But, he thinks he’s cool.

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Bill Traveller doesn’t get any older; his lines grow deeper, hiding years of travail. Where has he been? Where have they all been? Places I’d never go.

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And, Katie looks like she’s Catherine the Great, just off a barge ride down the Volga.

Larkin Forney Lived a Life

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Ten years ago I worked as a Public Defender in Middlebury. People in custody were kept in a basement holding area that allowed for safe transfers from cars to the jail, but unhealthy and borderline unconstitutionally improper cells. There was plenty of room for counsel visits, with no privacy, no windows and claustrophobic pens. When a prisoner arrived financially unable to afford counsel, a lawyer would be assigned to the case. Almost no one, except for the DUI, out-of-towners, had retained lawyers, most of whom could plead out a drunk but not try a case. The Deputy Sheriff would find the on-duty PD or call out the name of the defendant. One day, I heard, “whose got Larkin Forney?” Frankly, I thought it was a sandwich or a condition. I said, “what’s a Larkin Forney?” “You’re client, you idiot. He’s downstairs, with a pile of papers and he wants to talk with you.”

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Larkin had papers, all right. He had motions he had written which he wanted to file and he had a full statement of facts, his version, and he had pages of a book he was writing. And he was pissed that I hadn’t familiarized myself with all the nuances of the case before we met. I had to excuse his vituperativeness, given the fact I would leave the cell and he would stay. He may not have known I only just got the papers and barely had looked at them as I walked down the stairs. And, poor communication between offices of the Public Defender and the general malaise of some of the attorneys prevented me from knowing he had fired his previous PD after writing a complaint to the disciplinary committee accusing the lawyer who is now a judge or magistrate or something or all sorts of unethical conduct, asserting that the representation was less than adequate and unconstitutionally defective.

[MORE To Come]

Kevin and Vermont Special Olympics

So, I go down to the beach or the waterfront or Church Street with my camera and a lighting kit. Need to keep up my skills, looking, seeing, shooting. Oh, how I cannot deal with people telling me they have cameras or relatives with cameras or cell phones. They don’t understand portraits, posing or the importance of having a photograph, taken in ernest.

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These two people walk by where I sit with my friend Jim and we start to talk. Kevin wants to take a walk. They will talk about whether to accept my offer to shoot his photo.

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Kevin returns. Agrees to the shoot. And we talk. Seems he is a world class Bocce player who will be competing in the Special Olympics in Vermont this weekend. So, I sign up, volunteering to photograph whatever they need shot, knowing they have lots of shooters ahead of me, including the press.

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Now, I have to sort through 1,500 images, shots one more beautiful than the next. What a wonderful experience Kevin shared with me and I don’t even know his last name, where he lives or much about him.

John Evers, Attorney at Law

Of Counsel to O’Neill, Kelner and Green in Burlington VT, Jon Evers thrives as a traditional barrister. He loves the drama of the old time courtroom and the challenge of using modern computer interfaces to make facts easier to present and arguments more persuasive. He has looks, smarts, and ingenuity. Were he a baseball player, you’d say he has all the tools.