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.”
In Court to see one of the guys I follow on the Street. To me, he’s Skippy, a light hearted alcoholic who has a certain joie to vie, singing, laughing and carrying on. In Court, he’s He’s Phillip Searles, charged with an aggravated domestic assault. Held on no bail due to the nature of the act and maybe his record. The State alleges that he is a habitual offender, but they haven’t filed all the paper work. As for the charge, the complaining witness, his wife, died, but whether he did it probably cannot be proven. So, they charged him with the assault based on the fact that he made an admission, gave some contradictory answers to the investigating officer and some other evidence.
He’s asking for bail, not that he could make $25 were it to be set. He lives in the woods, when he’s free, a residence courts don’t usually recognize in determining whether he will return to face the charges. No bail package has been submitted as an alternative to jail. But the lawyer’s obligation is to assert his rights, here his right to bail. In addition to have probable cause for the charges, the State has to allege that he poses a threat to the community. The best they could allege, without statutory or case support, was that as a person charged with domestic abuse, he may well injure another woman were he to come into contact one upon his release.
In a hallway interview after the hearing concluded with the Judge taking the matter into chambers to decide, Bill Norful, his attorney, talked about how difficult it would be to investigate the case due to the lifestyle of his client. He suggested that others could have injured her. Could have been another person whom she was seeing.
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.”
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]
In my legal career, I represented a couple of Bank Robbers. One, my first Federal case, resulted in a dismissal. My investigator, Sharon Duckman, believe it or not, and I timed the trip from the bank to where the alleged thief, my knuckle headed client, was arrested, and, argued, along with some other evidence, that he could not have covered the distance at rush hour. In another case, one which I acted as standby counsel didn’t end up the same way. My client, a man with a prior for the same charge, received a pack that blew up, covering him with orange sludge. Captured on video, the FBI agent who had previously arrested him, recognized his face and proceeded directly to his home. My client let him in, made a full confession and then either allowed the agent to search his house or they got a search warrant, I cannot remember which, leading to the discovery of the clothes, bank bag and some other detritus connecting him to the crime. Oh, did I mention a handwriting expert tied him to the demand note? I did the opening and the closing statements and cross-examined the agent. He represented himself, doing the rest. A jury convicted him. Sentenced to 20 or 30 years, he brought an ineffective assistance of counsel motion against me, arguing I didn’t ask the agent the questions he wanted asked.
I spoke with a few other bank robbers and may have represented one or two. They struck me as being different. Bold. Defiant. Fearless. One told me the drug of choice for bank robbers was coke, because you needed courage, even if falsely provided by drugs, to walk into a bank and demand money. Armed or not armed, the robber has to have a plan. The guys with the loot stand behind counters. People with guns guard them. Cameras record everything. Silent alarms notify the cops. Slick, direct and quick. Come in unobtrusively, make a demand, take the money and run. The robber has to have an entrance plan and an exit plan.
Read today that Dave Parker robbed a bank. Don’t care if he did it or didn’t do it. No one hurt physically. Sure some traumatic effects on the bank people. People who rob banks don’t think about such things. I wonder what they do think about? Can’t be that they will enjoy the money and live happily ever after. Maybe they do, who knows?
I got one idea. Getting cold out there. When you don’t have a place to live and you have drug and alcohol problems, in addition to a TBI, going to jail rather than a more serious and tragic alternative, could be an easy way out. Who knows? He deserves a fair trial and a just sentence. But it’s a drastic solution to a solvable problem.
Told where to find him, I was either too early or too late. Found him at Breugers.
Where has he been? Not into the story. But he did read the Burlington Free Press article about medical marijuana. “I am not into filling out papers. I’d rather spend $40 a week on some sticky stuff.” He has glaucoma. When he smokes, he can see clearly. Sounds like a Cheech and Chong routine.
“Eric and I were smoking in Battery Park…. Cops came after me. I showed them the 4-6 grams….. Busted…. Smart represented me…. Donovan wanted to send me up the river…. Judge Levitt dismissed the charges…. Smart said, ‘just don’t share with anyone.’ ” They call it early intervention. Huh….
Larry sat nearby, cuddling a coffee, waiting for the weather to break so he could accomplish some unspecified mission. “I help Scotty as much as I can, but there is only so much a person can do.”
Elsewhere, on Church Street, people demonstrated, Vermont style, and the news reported, Vermont style.
Some just watched from the sidelines.
Not that he didn’t know. But taking up with the girl you met in rehab can only bring tsouris. Sure enough, he ended up at the 4C’s for the last three months. “Every cloud has a silver lining. I would have frozed to death or overdosed if I had been out.” “Jails should protect us from you, not you to yourself,” I said to a deaf ear.
Now he needs a job to pay for a program, a DV program, not the drug program he needs. No contact with a public defender for three months until she communicated a plea offer which he took, despite not being guilty, in order to get out of jail. SOS, suspended sentence, probation, costs, blah, blah, blah. Not sure I listen to these stories anymore. “If I were in IDAP, they would pay for it; DOC program.” “Don’t you need a felony to qualify for that?” I asked feigning a lack of knowledge. “Not sure,” he said.
Andrew will go back to jail and max out if he doesn’t get a job, stay out of trouble and attend programming for 26 weeks ($35 a wk). He cannot go to the Dept. of Labor, because he has child support payments which are in arrears. Who will hire him? At what wage? Let’s see. $10 an hour. 40 hours a week. $400. Taxes and social security. $270. $35 for programming. $225. Where does he live? $275 a week at a motel. You see what I mean. No way.
The woman has left town. Andrew will lie his way through the program, assuming he goes and is not kicked out. Anger will spew from his mouth against her, directly, and women indirectly.
In denial, another case awaits, a felony. Who will be next?
Can you believe the outright gall of that woman, Mrs. Justice Clarence Thomas? She must be on some kind of drugs, oxy would be my guess, or on a power trip of obscene proportions. Apologize. I’d prefer that Mr. Justice Thomas, he of the scowl and the silent treatment, resign and that Ms. Hill take his place. Good thing Ms. Hill called the FBI. Who knows what Ginny Thomas and her Liberty Central buds are capable of?