April 2017

About Elizabeth Warren

(U.S. Senator who falsely claimed Native American ancestry)

Elizabeth Warren is not of Native American ancestry. She has admitted this. At one point in her life she started to claim such ancestry. She did not make the claim by accident--if she ticked off the wrong box accidentally, none of this would be an issue. She did not make the claim casually. Instead, she claimed such ancestry deliberately.
She made it at a time when university faculties were scrambling to become more diverse. Some suggest that such a claim was harmless. Given the time and place, I do not think the claim was either harmless or irrational.
It mattered to Allan Bakke. It mattered to university entrance committees, faculty hiring committees and job seekers. Certainly the Supreme Court thought that the issue of diversity was important enough to grant certiorari in the Bakke case.
Elizabeth Warren is an intelligent person. She acted in her own self-interest. My problem with Elizabeth Warren is based on this false claim of privilege. Eventually the people of the United States will get universal health care. Eventually, financial engineering will be seen as a curiosity akin to John Law's French state lottery. Eventually, duplicitous contracts of adhesion will be illegal and writs of redhibition generally available. And maybe someday Elizabeth Warren will apologize for claiming a status that was not rightly hers.

(This was written in response to someone who said, essentially, "so what if she did?")

2018 Update: Senator Warren has doubled down on her false claim of Native American ancestry; saying that "no one could take away her family history" while at the same time refusing to take a "23 & Me" DNA test. If she honestly believed in the truth of her ancestry, she would take the test. The only reason why she will not take the test is because she knows what the result would be. That is why her failure to apologize is pure hubris.

Winning High Profile Cases: Jacques Vergès, Roy Black, José Baez

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After winning an acquittal in a double murder trial, today former NFL star Aaron Hernandez hanged himself in his cell in Massachusetts while serving an unrelated life sentence for murder. Reports of that recent acquittal are still fresh but not all of them mentioned the name of his lawyer, José Baez.

José Baez? That José Baez? 

A little background is in order. 

I Cross Examination

In 2012, Bolivia moved from the civil law system of written trials directed by a judge to oral, contentious proceedings not unlike those conducted in those countries under the common law tradition. Rather than use juries, citizens are appointed "
juez ciudadanos" (citizen judges) to form panels which decide the fate of those accused of crime. Now the prosecutor will present witnesses before such panels and the defense has an opportunity to cross-examine these witnesses. The role of the lawyer at these trials is much more crucial than the role of the judge, who while doing more than merely keeping order and calling fouls, no longer is in control of the presentation, progression and reception of evidence. 
I was part of a group sent to Bolivia to train public defenders on the nuances of cross-examination. There exists little written material on how to conduct common law, adversarial trials in the Spanish language. While much has been written on the subject, up until recently there was no need. Even Puerto Rico, which proudly proclaims its separate legal and linguistic status, has a U.S. District Court with proceedings entirely in English. 

For the benefit of the Bolivian public defenders I put together a brief guide, translating and adapting materials found elsewhere. Roy Black, the celebrated South Florida defense lawyer and University of Miami law school professor, gave permission to use teaching materials posted on his website. These could not just be translated because most of the cultural references simply did not translate. 

The classic text on cross-examination, though, happens to come not from American or British practice but from Ancient Greek. Many find cross-examination difficult to teach because it is like playing the black pieces in chess. Until you know what opening is played with the white pieces, you are left with just a series of general rules. Open the ranks and files to develop your pieces. Don't move your Queen too early. Castle to protect your king as soon as you can. Put pressure on the center. 

These rules are similar to those taught in law school trial practice classes: don't ask a question you don't know the answer to. Don't ask one too many questions. Always lead the witness. Don't let the witness ramble on. Confine the witness to your question. Even, "stand behind the podium," an admonition that has to be followed in British courts because of their structure, but not the Bolivian. [Fn.1] These "rules" are hard to put into practice. 

Plato, at least, shows how it's done. In the dialogue called the Meno (in English at least, in Spanish it's Menón) Socrates and Alcibiades are arguing, as they are wont to do, over whether knowledge is inherent or not. Socrates asserts that an uneducated boy knows the Pythagorean theorem. Alcibiades scoffs. Socrates then asks the boy a series of questions; the answers to which are only 'yes' or 'no.' 

"Is this line the same length as that one?" Socrates asks. 
The boy, boy of course, has to answer yes. Question by question, Socrates walks the young man through Pythagoras' famous observation on a triangle. When he is finished, the boy has agreed with the proposition put forth to him by Socrates--how could he do otherwise?

The simple questions posed by Socrates have but one answer, and trying to evade them would make the boy look ridiculous. No one wants to look ridiculous, much less a testifying witness. 

Socrates gives the lawyer a way to handle the defense no matter what evidence is put on. Any evidence the prosecution might present is merely an opportunity to trace the defense case, slowly but surely, by cross-examination. To do this successfully you need a good deal of knowledge, you have to be in touch with people; their interests and desires, and indeed, their language. 

In a case tried years ago by Roy Black in the Southern District of Florida, a witness identified his client as part of a smuggling ring. The witness was self-assured, confident, and walked his way through his story, led by the prosecutor. Then it was Roy's turn:

You said in response to the prosector's question that you are a carpenter. Isn't that correct?
--But that's not your real occupation, is it?
--Yes, that's my real job. I don't know what you mean.
--Isn't your real job burning down people's homes for money?
--You burned down a home belonging to Joseph Taylor three years ago, didn't you?
--No, I didn't. 
--But you pled guilty to that crime.
--I have an explanation. 
--That wasn't the only house you pled guilty to burning down, was it?

And on and on it went. By the time defense counsel Roy Black had finished with the witness, there wasn't much left of him. 

II High Profile Trials

When I was compiling materials for the Bolivian public defenders, I first thought to include, then decided against, a chapter on high-publicity trials. There couldn't be that many high publicity trials in Bolivia, I thought. They won't need this material. 

I was wrong. 

At the time, there wasn't really anything in English about trying a high profile case. Richard "Racehorse" Haynes had written a short monograph for the American Bar Association, but that was about it. [Fn.2] There were many books about high profile trials, but almost nothing about how to defend them. The only guide I found was written by Jacques Vergès, who had defended Algerian nationalists in the 60's and later the PLO, only to mysteriously disappear for ten years only to return to represent SS-Standartenführer Klaus Barbie, the Butcher of Lyon who had been extradited from Bolivia and Carlos the Jackal. Vergès ended his career representing members of Cambodia's Khmer Rouge. [Fn.3]

His book has not been translated into English and so is not studied in ABA approved law schools in the United States. This is a pity, because Vergès is one of the few who understand the particular pressures put on an attorney in a high publicity case. But the Bolivians wouldn't need that, I thought. 

Again, I was wrong. 

My experience in Bolivia taught me that every trial lawyer, indeed, every lawyer, needs to have some familiarity with the defense of high profile trials. Every single one. You never know when such a case may come your way. In Bolivia, as it turns out, there had been several cases that had caught not only regional, but national and even world attention. [Fn.4]

Most lawyers may never see such a case. High publicity cases are different. But what happens in such cases follows a similar pattern. First, the arrest of the defendant follows a set narrative: heroic police work brought the criminal down. Even though it is unethical for attorneys to speak to the press about a case, the prosecutor's office will routinely issue a press release demonizing the defendant and highlighting his crimes. The defense is deprived of any such opportunity. In many cases, the defendant may not yet have a lawyer. 

By the time the defendant finally has a lawyer, the public's mind is already made up. After all, they have only heard one side of the story. Not being able to attack the defendant directly, the press, the police and often the prosecutors attack, or attempt to attack, the lawyer personally. Past peccadilloes are trotted out as Exhibits A-Z to show why the lawyer shouldn't be handling the case, and God forbid the lawyer should be doing anything but pleading the case out. 

In India, lawyers for the Mumbai bombers were physically attacked after the entire bar association denounced them for taking the case. The public doesn't necessarily want justice; the bar doesn't necessarily want justice. The public wants the spectacle of vengeance and the press is all too ready to give it to them. 

If you don't believe that defense lawyers are persecuted, ask F. Lee Bailey, disbarred in Florida because the only way his client could obtain a lower sentence was to testify against him. Bailey, a member of the O.J. Simpson "dream team" defense was subsequently denied readmission to practice in Maine on the grounds that he remains unrehabilitated.

The Maine Bar should be ashamed. If Bailey's distinguished career and defense of unpopular defendants is not itself proof of eligibility to practice law, then no one is eligible. But I digress. [Fn.5] 

Bailey's case is not an outlier. After the Jodi Arias trial, the prosecutor wrote a book about the case. So did Arias' defense counsel. The defense counsel was brought up on charges by the Arizona Bar and was forced to agree to a four year suspension for writing the book. No charges were brought against the prosecutor. See, "Lawyer agrees to suspension for writing book about Jodi Arias murder trial." .[Fn.6]

III Two Stunning Victories

The first job of the lawyer is to slow down the conviction express train. The public howls for blood, the "law and order" judge (who may even have to run for re-election) sternly chastises the attorney and denies his requests for time to catch up to show who is the boss of the courtroom and to remind the electorate. The police have amassed a mountain of evidence over months, perhaps even years; the poor defense lawyer has had but days to review.

The private defense lawyer has the additional burden of having to keep his business going. Unlike the police and prosecutors, no one comes by his office with a regular check for work done. If the defense attorney devotes all of his efforts to his client--which he must--his practice will suffer. If he handles other cases besides criminal cases the press will raise an eyebrow, noting that he is not a "full time" criminal lawyer, unlike the prosecutor. If he restricts his practice to criminal defense the press will raise the other eyebrow, claiming either that he's a mob lawyer, a "mouthpiece" or in league with his clients after all. 

Meanwhile, there is a defense to be prepared and a case to try. 
Casey Anthony was, at one time, the most hated woman in America. Accused of the murder of her one year old daughter, Anthony faced the death penalty, a punishment handed out and implemented gleefully in the State of Florida.

Her lawyer, José Baez, was attacked by the press relentlessly. But José played the black pieces and he played them well, not only saving Casey Anthony from the electric chair but winning an acquittal in a closely watched case. Because Anthony was anything but a sympathetic defendant made her reversal of fortune all that more stunning. 

Aaron Hernandez was an NFL football star for the New England Patriots who had starred in a Super Bowl. He signed a 40 million dollar contract and was indicted and convicted of murder. The prosecutors weren't done with him and they indicted him for another murder. This time he called José Baez. In an absolutely stunning upset, Baez won an acquittal, despite the fact that:
  • Hernandez was a high-profile defendant
  • Hernandez had already been convicted of another murder
  • there were two eyewitnesses. 
  • Hernandez could not testify {doing so would reveal the fact of his previous murder conviction to the twelve jurors who had been living under a rock and who told the judge they didn't know anything about the case}

Not only do few lawyers ever get a chance to defend a high profile case, fewer lawyers ever win acquittals in them. José Baez has done it twice. 

His is a career to watch. I don't know Mr. Baez, but it is clear to this attorney that he has talent and will continue what is already turning into a brilliant career. 

And if you're one of those lawyers who one day wakes up with a high-profile case, don't be afraid to reach out to someone like Mr. Baez. I'd keep him on speed dial. 

Fn.1: I'm guessing that at the Judicial College (bootcamp for all new federal judges) the judges are taught to tell attorneys to "stand behind the podium." However, since most of these judges were once lawyers themselves and once practiced in state court where roaming around is permitted, the podium rule is less than universal.

Fn.2 There's also: Murphy, Managing Notorious Trials (1998), Ferguson, The Trial in American Life (2008), Pasano, Winning the Acquittal (2012) and Brodsky, From the Trenches, Practicing Law Institute (2014).

Fn.3 Vergès, De la stratégie judiciaire, (1968) {"On Trial Strategy"}.

Fn.4 Among these: The Jacob Ostreicher case (whose cause was taken up by American actor Sean Penn); the 2010 attempted coup in Santa Cruz involving Eduardo Flores and Balkan mercenaries; the 2011 Amish "Ghost Rapes," see, https://www.vice.com/en_us/article/the-ghost-rapes-of-bolivia-000300-v20n8 and the 2013 Palmasola prison riots.

Fn.5 To be fair, the extended section on cross-examination is a digression.

Fn.6 Here is the link to the book.