Acceptance of Responsibility

Every day, in federal district courts around the country, criminal defendants are encouraged to accept responsibility for their acts. If they do so, the presiding judge invariably gives a lighter sentence, and in the process commends the defendant for taking ownership of what they did, while accepting the consequences. The extensive investigatory resources of the federal government are one of the forces behind the prevalence of guilty pleas, another is the typically lengthy sentence that awaits a federal criminal defendant if he takes a case to trial and loses. After a three-month trial, one of my clients received a 25-year sentence, even though he was acquitted of 14 counts of the Indictment, and had no prior criminal record. Federal prosecutors and defense counsel such as myself agree – if federal criminal defendants stopped pleading guilty, the federal judicial system, nationwide, would grind to a halt.

If Brett Kavanaugh is named to the Supreme Court, the majority of cases he helps decide will be criminal appeals, arising from a system which could not function without something that the Nominee is unable to do: Accept responsibility for acts that evidently happened. If the Nominee had simply done what every federal defendant is at some point urged to do, his testimony of September 27, 2018 could have lasted a few minutes, and the nomination would already be secured, without protests, unending expenditures, and another F.B.I. investigation. It could have gone something like this:

“I was a smart, overachieving, but at times thoughtless teenage boy. I attended parties, where like many of my friends, I drank excessively. In that state, I did things that I am ashamed to admit and now, 30 years on, can barely remember. But based on the testimony from Dr. Ford, they evidently happened. I can only be grateful that the outcome was not even worse. I apologize to Professor Ford, and hope she can someday forgive me. Even more, I hope and pray that my own daughters never have to endure what I apparently did to Dr. Ford that day so many years ago.”

That would have been it. A shocked and grateful nation would likely have commended the Nominee for taking it on the chin, accepting responsibility, and for being a Man in the best sense of the word. The debate would be over, the press moving on. Whether we call it irony, hypocrisy, or something worse, Brett Kavanaugh will ultimately decide the fate of defendants who lacked his advantages, but were able to do something that is apparently beyond his capacities: Accept responsibility.

Winners write the law – but that’s finally changing.

September 27, 2018

The testimony of Supreme Court Nominee Brett Kavanaugh and his first accuser, Christine Blasey Ford, started a few minutes ago and office email traffic has slowed to the vanishing point. With a few hours on my hands, I will write about another aspect of the controversy.  It’s not just memory and the different perspectives of a man and woman, but about how privilege remakes history.  The Nominee and I graduated from high school in the same year, 1982, and are both white males. We also both went to law school and passed the bar exam (I passed three in one week, but had a lot to prove). Nothing else seems similar.  He has thick, chestnut hair with just a touch of gray.  The little I have left is prematurely white, the legacy of changing professions, from classical musician to lawyer, and coming up the hard way through two Philadelphia law firms — White & Williams and Pepper Hamilton — that frequently ate their young.

Apparently the testimony will touch on Beach Week, a beer-soaked and time-honored tradition among graduates of elite private high schools in the Northeast.  It may be that pinning a young woman to a bed with the help of a friend after turning up the stereo loud enough to mask her screams was part of the light-hearted frivolity of Beach Week that we should come to accept and understand.  Or maybe not.  What I have heard so far about the Nominee suggests that he is a life-time member of the ruling class, those who move from success to domination, with no need to apologize for anything done along the way to those who no longer attract their attentions.  With accusations multiplying and surely millions of dollars spent defending the nomination to date, a person with a sense of proportionality and privacy would have retreated at this point, if nothing else for the sake of his young children who will hear all of it. But the ruling class are winners, and they don’t back down.

Returning to the opposites, I graduated from a public high school in the Southwest, Ponca City, Oklahoma to be exact, to which we had moved two years earlier, after my father lost his job at Allied Chemical in Morristown, New Jersey. In Ponca City, the closest thing to a beach was the swimming area of Kaw Lake, an enormous power-generating reservoir about 10 miles east of the city.  I had never seen a hydroelectric dam before, and the roar of water gushing down what must have been the equivalent height of a 30-story office tower made it impossible to audibly comment on the spectacle. The Kaw people, original inhabitants of the area, were also known as the Kansa (“People of the South Wind”) from which Kansas, 15 miles north, derives its name.  Spending a week after graduation on the barren shores of Kaw Lake (they weren’t kidding about the wind) did not occur to anyone, as there were no accommodations, and I recall only a single restroom building at the edge of the gravel parking lot, surrounded by tall grass.  But there was something that could have been called a beach night, after the Prom came to an end, when tradition called for Po-Hi seniors to spend the rest of the night and into the morning drinking the weak beer (3.2 percent alcohol) that Oklahoma allowed to those 18 and over.  It came in two varieties, Bud and Coors. I preferred the latter, as it was unavailable in New Jersey and therefore novel.

I did not attend post-Prom festivities (or the Prom itself) because despite receiving invitations from friends, I regarded Prom as an outdated and embarrassing display, something on the edge of extinction as the Cold War and much else about the world had become more serious since the decade turned and Ronald Reagan was elected President. Instead, I provided limited rescue services for Senior Nights 1981 and 1982, by driving out to Kaw Lake, locating some drunk fellow members of the high school Orchestra, and driving them safely home.  I must have responded to a call from a payphone out at the lake (back then one was duty bound to answer a ringing touchtone phone, despite no warning of who was trying to reach you), or perhaps I got a personal report from someone driving back to Ponca, since our rented house was at the very edge of Route 60 westbound, the only road back to town from the lake.  I do recall helping the fellow string player whose invitation I dodged into our powder blue Plymouth Fury (it had a textured white vinyl roof) and then driving close to the speed limit, to avoid the attentions of the dreaded “Hi-Po,” the Oklahoma Highway Patrol.  It did not occur to me to take a detour down one of the many dark dirt roads that crossed the prairie, to trouble a drunken female friend in the backseat.  My parents drank a lot, fought constantly and our family finances were perpetually shaken and stirred. But apparently they provided enough guidance that a plan like this never crossed my mind. The Nominee must have a different background.

The nature of our education and the manner in which success was rewarded mark other differences. I graduated third in the enormous Po-Hi class of 1982 (at the height of the oil boom, the town was flush with money and new arrivals), with a cumulative GPA of 3.97.  My mother, convinced I should have been first, attributed my ranking to a mistake in translating the straight-A grades from my Catholic high school in North Jersey.  At that point, however, I had spent time with graduates 1 and 2 in advanced classes, and knew they were smart and studious, born and raised in Ponca, deserving the honors.  I was grateful that the administration allowed a recent arrival to join the top three, plus slightly missing the 4.0 distinguished me from my civic minded peers, as it resulted from catching a B+ in Government, the one class I truly hated.  The idea of a representative democracy, where officials were elected on merit, pondered important issues and then acted for the common good, struck me as naïve legend. In classical music (I was already spending too much time pursuing it) there was no law — only practice, performance and recognition — which I knew even then was random and often fleeting.  It didn’t help that the American History II teacher at Po-Hi, Mr. Delbert Fair, was relentlessly critical of politicians, all of whom, he claimed, were prone to be “caught with their pants down.”  It was an embarrassing announcement in class, but based on what I understood about the 1979 demise of Nelson Rockefeller (former Vice President and four-term New York Governor, found dead [in bed] with his 27-year old assistant) the generalization rang true.

That summer did not include any further graduation celebrations, on what passed for a beach or otherwise.  Instead, I went off to music camp in Colorado, where I practiced constantly, and in return for playing cello on demand at the homes of local patrons of the arts, I received free room and board from mid-June until a week or so before college (it was actually music school) began.  I spent the next seven summers in this fashion, until I graduated from Juilliard in 1989 with a “master’s degree” in cello performance.  I was shocked even then that this blend of vocation, religion and obsessive compulsion could receive an academic designation.  The ranking of my summer quarters had increased, from Rocky Ridge Music Center, to three summers at the Aspen Festival (where I won the cello competition in 1986) to the Schleswig-Holstein Festival in 1988, where Leonard Bernstein conducted the orchestra during our tour of Soviet Russia.  But throughout, there were few grounds for optimism, and no sense that the future held a lot of promise.  Even then, it was no secret that our audience was shrinking, our relevance fading, and that there would be no way that I, unlike my last teacher at Juilliard, could move out to Los Angeles, rent a Hollywood bungalow, and make a good living in a recording studio before auditioning into the L.A. Philharmonic.  Much more was needed – money, connections, and increasingly the unspoken advantage – sex with someone in a position to advance your career.  I lacked the first two, and the third never happened.  Whether from principle or obliviousness, I don’t know. There was no graduation party after Juilliard either. The world around me, without a practice room in which to prepare for a career that would never happen, became an even more difficult place.

I don’t know if it was the sense of impending doom that was looming after conservatory graduation, the legacy of a basically moral upbringing, or the dormant memory of religion class, but I did not get involved in escapades of the sort that have been alleged against the Nominee.  As a reasonably attractive straight young man in the field that was filled with young women and many gay men, opportunities were ample.  But between serious girlfriends and short relationships, I can say with confidence that I never plied a woman with drink, held her down on a bed, muffled any cries, hit anyone, or invited a friend or two to participate in similar activity.  I had heard of this sort of thing happening at fraternities, and during the single year I spent on scholarship at the University of Southern California, I marveled at how good looking, tan, often blond and confident these young men were.  Based on my upbringing, I had assumed that the time of boundless opportunities in traditional occupations like doctor, lawyer and business entrepreneur were over.  These young men knew otherwise, and they were right.

At the time, I would not have thought for a moment to join them.  But through a combination of relentless circumstances (including early marriage to a Juilliard veteran who saw the handwriting on the wall, and a successful audition into an orchestra that promptly failed) I found myself a bewildered first year law student at Georgetown University in 1990, surrounded by well-spoken students whose overflowing confidence was disproportional to the fact that none of us knew anything practical about this field called Law.  I made myself raise my hand to answer questions in the large lectures, but could not match the polish of these students, who evidently loved Government class back in the day, and now could not stop talking about separation of powers.  My conservatory background (and habit of bringing my cello to class, since I had a surprising number of evening gigs in D.C.) was not well-received.  The consensus was that I must have been a loser in music school to switch careers in such a drastic fashion.  When I tried to explain to a skeptical Copyright professor that classical music was losing its relevance while becoming the preserve of the well-funded (able to afford practice teachers and old Italian instruments), he dismissed me as “cynical,” and gave me a B in a class where I had never worked harder, or with more enthusiasm because the subject matter (artistic works) was something I knew about.

A similar pattern played out in job interviews after my second and third year. I had many interviews and a good number of callbacks, but invariably, there was a partner who was skeptical or threatened.  On the one hand, I could not possibly be a hard worker since the belief was that musicians are talented flower children without discipline. On the other, I was an elitist who didn’t have the sense to stop practicing, who didn’t know what to say when the hiring partner proudly recalled seeing Led Zeppelin at Shea Stadium in 1975.  Strangely, my background as a classical musician who was not ready to renounce what he did but saw the problems with it led to a form of discrimination that I could not explain or complain about.  On the surface, based on gender and skin color, I appeared to be another recipient of white privilege.  But it wasn’t happening.

Meanwhile, the well-spoken students who could hold forth on the abstention doctrine and delivered what the professors wanted to hear got jobs, and with the jobs came new cars and suits, a better apartment, a pay scale as a first year associate that I never known any orchestral musician, no matter how long they had been in the musician’s union, to attain.  There is no doubt that the Nominee was among these winners, and the outcomes made sense for all participants.  There would be no reason for a law firm to hire the unknown quantity of a still-serious musician, when they could bring on someone without those complications, who came from a shared background, and could be depended on to do and say things that were “appropriate,” consistent with firm expectations.  Diversity based on appearances was emerging, but diversity based on a different mindset, gained in a vastly different professional setting, was still far in the future, if it has even yet arrived to law schools and the law firms that hire from them.

I eventually found my footing in law, but at a tremendous price: Year upon year of billable hour targets that could not be honestly reached, ruined family holidays, inability to sleep while pondering what it was that made this or that partner so dedicated to my destruction.  It is likely that I have conducted more depositions, held my own in more legal arguments, and probably defended more jury trials than the Nominee.  The stacks of motions, briefs and correspondence I typed at each law firm long ago passed the 10,000 mark, that magic number where one becomes adept at a chosen skill under almost any circumstances.  I have learned an entirely new craft over the past 25 years, but political progress in the law firms where I spent most of that time was elusive at best, a humiliating failure at worst.  In this area of the law, the Nominee is far my superior, in part because his pattern of winning, set at a young age, was never unraveled.

From what I have seen, a person who is the regular recipient of societal reinforcement and reward, from high school into college, and then from law school into a law firm, will tend to conform past acts into a seamless narrative of triumphant success.  The United States did this on a grand scale after it achieved the status of global decision maker after the First World War.  From that perspective, history was adjusted, with all events (from colonization, to the War of Independence, the Civil War, widespread child labor and “Indian Removal”) made part of a winner’s narrative, resulting in a place that could only be called (as I heard this past weekend from a get out the vote activist) “the best country in the world.”  Losers have regrets, but the Best Country in the World (with The Best Legal System in the World) would have no need to consider the past and wonder if it could have been done differently.  Perhaps this is what drives the stark disconnect between the testimony provided today by the first accuser, and the Nominee’s staunch and sincere-sounding insistence that none of it ever happened.  Rape, attempted or actual (one of the original Common Law felonies) would be such a departure from the Nominee’s success narrative that it could not have happened, and therefore has all but disappeared from memory.  The lure of the High Court, for a lifetime winner, finished the job of rewriting history.

Richard Maurer

Admitted to practice law in Pennsylvania, New York and New Jersey

Defense Verdict

I obtained late in the day on April 20, 2017 a defense verdict in a Philadelphia jury trial. During two decades of trying cases, I have had several trials scheduled to start on Easter Monday, but none actually went forward. This time things were different. My client faced three charges based on illegal possession of a handgun, and a mandatory minimum of 10 years incarceration had he been convicted. At trial, we had to deal not only with the loaded 9 mm Taurus that police claimed to have recovered from a residential walkway near where my client was arrested, but with the equally fearsome weapon obtained from a fellow member of my client’s motorcycle club, who was arrested at the same time.

The factual setting of the case was a motorcycle club party gone bad, with two fatalities that the District Attorney mentioned at every opportunity. However, in the absence of evidence that my client used, held or even touched the weapon in question, the Commonwealth relied on a theory of constructive possession, that my client must have possessed the gun since police recovered it from a darkened walkway, about 6 inches behind my client, after police directed him to sit down and await backup.

The Commonwealth’s brash confidence began to waiver after my client testified. He did very well, explaining what he did that night and that he never possessed a handgun, while avoiding the traps that generally snare most defendants who testify on their behalf. He did not argue with the prosecutor and did not insist on a version of events that portrayed him in the best possible light. Sure, it was dark that evening, but he didn’t deny that streetlights were in the area, and he didn’t deny dropping his leather club vest when the police first arrived on the scene. Far from an attempt to “hide the evidence,” my client explained that he had no choice to drop it, when the officer asked him to show his hands.

The jury agreed that given the hundreds of people who walked near the area to exit the party gone bad, the gun could have come from anywhere, and that the generally dark conditions of the area after midnight (despite a few streetlights in the area) could have hidden the weapon from the officer’s sight at the point he told my client to sit down on the walkway. During deliberations, the jury asked if the Commonwealth had traced the weapon or conducted gunshot residue (GSR) testing to support the argument that my client had not only possessed, but actually used the gun minutes before he was arrested.

In the absence of any testing, our judge instructed the jury that they would need to rely on their collective recall of the evidence. Understanding that this actually meant that no such tests existed, the jury returned a defense verdict on all charges about 30 minutes later. Speaking with a juror post-verdict confirmed my initial assessment of the case – that there were too many gaps in the proof to connect the gun to my client. It also confirmed that the jury had a deep collective knowledge of what issues matter in a gun case. Not only were they surprised by the lack of GSR testing, they wanted to know why the Commonwealth had not traced the gun to identify the legitimate owner, and could not rule out that my client’s co-defendant, who sat next to him on the steps, had not been the one who placed the gun on the walkway behind my client.

After collecting my file and reorganizing it, I slung a heavy trial bag over my shoulder and walked north to where I was parked. It was a chilly spring evening, green leaves emerging under a threatening dark sky. My client returned to his job as a chef for a prestigious Center City caterer, and I returned to the paperwork and unread emails waiting in the office. I have heard that despite the difficulty of their work, emergency first responders learn to love it, due to the freedom from routine and unread text messages. Trial work is similar, and after 17 jury trials, I can truly say that I look forward to the next one.

Bad Company – a Primer on Severance under the Federal Rules of Criminal Procedure

People define themselves by the company they keep. Early on, lawyers formed bar associations, doctors formed hospitals, and the skilled trades of Europe formed guilds, for everything from working leather to brewing beer. When people of different professions mingle, it has long been in the context of a social organization (Mozart and George Washington were each enthusiastic Masons in the 1780s), a religious denomination, or a representative body, from school boards to Congress. With the rise of social media, we now have the power to create vast online collections of friends, followers and connections that tend to place us with people of similar background and perspective. Technology builds group identities, virtual and also very real, even as it breaks down communication barriers.

For the criminal defense lawyer, it is far easier to defend an individual than explain away the actions of the larger criminal enterprise he allegedly belonged to. This is why the federal government’s preference is to cast the net widely, indicting as many participants as possible in a single Indictment, and then proceeding to a joint trial against those defendants willing to hazard the uncertainties of a federal trial. In a complex case that covers months or even years of alleged criminal activity, this practice, called joinder of offenses and defendants, tends to convey that all defendants are members of an ongoing criminal enterprise, even where a specific defendant’s involvement with the other players was limited, sporadic, or otherwise short of complete participation. The outcome is often guilt by association (good for the prosecutor, bad for the defense), and this is why the federal government routinely opposes a defendant’s request that he go to trial for the specific acts that he allegedly did, and not in the bad company of co-defendants who committed acts that were distinct in time, place and manner.

A neutral observer, new to federal criminal procedure, might assume that such a request (called a motion to sever) would be routinely granted, because we associate guilt by association with unfairness, whether reflected by an entire elementary class being denied recess because of the unruliness of a few, or by the hard labor and leg irons imposed on the physician who set the broken leg of John Wilkes Booth after President Lincoln’s assassin showed up at his door in the middle of the night.[1] However, federal courts uniformly hold that the danger of guilt by association, without much more, is not enough to support the severance of defendants or charges. See United States v. Phillips, No. 09-cr-202-03, 2009 WL 3150434, at *2 (E.D. Pa. Sept. 24, 2009) (“Absent extraordinary circumstances not present in this case, the possibility of guilt by association does not provide grounds for severance.”).

Instead, a federal District Court starts with the presumption that the jury will be able to sift through the charges and related evidence and connect them to the appropriate players, even in the context of a ten-defendant trial that covers years of alleged criminal activity. This article surveys the applicable rules of Federal Criminal Procedure, cases within the Third Circuit that interpret those rules, and approaches that may convince a judge to grant severance.

  • Misjoinder – when charges and defendants should not have been combined to begin with.

Federal Rule of Criminal Procedure 8 (b) (Joinder of Defendants) states in relevant part that “the indictment or information may charge two or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.” Fed. R. Crim. P. 8 (b). The Third Circuit Court of Appeals has instructed that under Rule 8(b), “[i]t is not enough that defendants are involved in offenses of the same or similar character; there must exist a transactional nexus in that the defendants must have participated in ‘the same act or transaction, or in the same series of acts or transactions,’ before joinder of defendants in a multiple-defendant trial is proper.” United States v. Walker, 657 F.3d 160, 169 (3d Cir. 2011), quoting United States v. Jimenez, 513 F.3d 62, 82-83 (3d Cir. 2008). Where charges leveled against only a single defendant “arose directly” from his or her participation in a common illicit enterprise which led to charges against that defendant and co-defendants, the Third Circuit has held that all of the charges may be considered part of the same series of acts, rendering joinder proper under Rule 8(b). See United States v. Riley, 621 F.3d 312, 334 (3d Cir. 2010). Predictably, the federal District Court in Philadelphia has held that “an allegation of conspiracy is sufficient to show there is a nexus between underlying substantive counts.” United States v. Moore, 14-cr-209-1&2, 2016 U.S. Dist. LEXIS 149199, * 35 (E.D. Pa., Oct. 27, 2016), citing United States v. Eufrasio, 935 F.2d 553, 567 (3d Cir. 1991); United States v. Somers, 496 F.2d 723, 729-30 (3d Cir. 1974).

The joinder of defendants and crimes in Walker (the Third Circuit’s latest published analysis of joinder issues) made sense. The co-defendants in that case, two brothers, were initially charged in a four-count Indictment alleging possession of cocaine base, drug trafficking, and possession of a prohibited firearm in connection in furtherance of drug trafficking. See id., 657 F.3d at 165. All of the criminal acts alleged against the Walkers in the initial Indictment preceded May 31, 2007. See id. The Government later added two additional counts (Counts V and VI) against both brothers arising from their attempted robbery of a crack cocaine dealer in the streets of Harrisburg on May 31, 2007. See id. These additional counts, for attempted robbery and using a handgun in connection with that robbery, were filed against the Walkers in a superseding Indictment. See id.

Defendant Barry Walker was ordered detained by a Magistrate Judge as a result of the new robbery and gun charges, but on July 10, 2017, he managed to escape from local custody in Harrisburg. See id. When re-arrested two days later on July 12, Barry was discovered with crack cocaine on his person, in a motor vehicle that he had entered for the purpose of selling crack to the another occupant. See id. As a result, the Government eventually charged Barry with two additional counts (Counts VII and VIII), for escape and distribution of crack cocaine, in which his brother, Barron Walker, was concededly not involved.

The Walker brothers went to a four-day jury trial, at the conclusion of which the jury found Barron and Barry Walker each guilty of Counts I through VI of the Superseding Indictment, and also found Barry Walker guilty of the escape and possession of crack cocaine charges at Counts VII and VIII of the same pleading. See id. at 166-167. On appeal, Barron Walker claimed that Counts VII and VIII filed against Barry Walker were misjoined to Barron’s charges under Federal Rule of Criminal Procedure 8 (b), because he was not personally involved in the escape and possession charges at issue in those counts. See id. at 169.

The Third Circuit disagreed, reasoning that if not for the underlying six charges filed against both brothers, Barry Walker would not have escaped, and then been caught in the act of selling crack cocaine in a vehicle at the time of his re-arrest. See id. at 170. The Third Circuit also noted “that the short span of time between the initial offenses and the two charges against Barry Walker – a period of a little over a month – further suggests that the various charges were part of the same series of transactions.” Id. at 170.

Walker is useful to defense counsel seeking severance, because in that case, each defendant (Barron and Barry Walker) participated jointly in an unbroken chain of offenses that culminated in the attempted robbery of the drug dealer on May 31, 2007. Id. The additional two charges at issue in Barron Walker’s challenge to joinder, for escape and possession of crack cocaine against Barry Walker only, arose after his escape from custody on the charges that had been filed against him and his brother, Barron. Id. Thus, there was every reason for the District Court to conclude that the jury was capable of separately considering the escape and drug possession evidence against Barry Walker only, because of the contrasting nature of the elements of those offenses and the supporting facts, each distinct from the charges filed against Barron Walker. Id.

In contrast to Walker, the author is currently defending a case where our client has been joined to an Indictment alleging 13 months of ongoing criminal conduct by six other defendants, based on the defendant’s commission of exactly three criminal acts on two dates, after which the sprawling, 75-page Indictment makes no further mention of our client for the remaining 7 months of the alleged conspiracy. Our client is simply not mentioned in 16 of the 20 counts of the Indictment, but the crimes alleged against all seven defendants, in all 20 counts of the Indictment, are the same. We are hopeful that these circumstances will persuade our judge to grant severance on grounds of misjoinder under Rule 8 (b). If not, the misjoinder in the case will provide a substantial ground for appeal if necessary.

  • Relief from prejudicial joinder – a higher hurdle

Federal Rule of Criminal Procedure 14 acts as a safety valve in situations where a joinder that is technically proper under Rule 8 (b) would nonetheless unfairly prejudice the defendant at trial: “If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.” Fed. R. Crim. P. 14 (a). A District Court should grant severance under Rule 14 (a) where a defendant identifies a “serious risk that a joint trial would: (1) compromise a specific trial right of the defendant; or (2) prevent the jury from making a reliable judgment regarding guilt or innocence.” See United States v. Heilman, 377 Fed. Appx. 157, 199 (3d Cir., April 21, 2010), citing Zafiro v. United States, 506 U.S. 534, 538-39 (1993).

“The ‘critical issue’ in evaluating prejudice is whether the jury can compartmentalize the evidence, considering it only for the counts it pertains to.” Moore at **36-37, quoting United States v. John-Baptiste, 747 F.3d 186, 197-198, 60 V.I. 904 (3d Cir. 2014). “The jury’s ability to compartmentalize the evidence is affected by the complexity of the case, in terms of the number of charges and defendants, as well as the presence of technical or scientific issues.” Moore at * 37, citing United States v. Davis, 397 F.3d 173, 182 (3d Cir. 2005); United States v. Weber, 437 F.2d 327, 332 (3d Cir. 1970).

A defendant unable to prevail with a misjoinder argument under Rule 8 (b) may still argue that he has a “specific trial right” to preclude the jury from considering evidence in his case that is irrelevant to the charges against him. See Fed. R. Evid. 402; Fed. R. Evid. 403 (authorizing the preclusion of concededly relevant evidence on grounds of undue delay, jury confusion, and unfair prejudice). In addition, if a District Court denies severance under Rule 8 (b), counsel may still be able to raise judicial concerns that the jury will be unable to “compartmentalize” the evidence as to each defendant, particularly where the defendants (as is common even with legitimate associations) share the same age group, gender, and racial background. Counsel may also base an unfair prejudice argument on the likelihood that his client will spend far more time at trial distancing himself from the more extensive conduct of his co-defendants than defending the substantive claims against him.

  • Conclusion

The reluctance of federal District Courts to grant severance is likely related to the high frequency of guilty pleas in that venue. It is understandable that a judge would not want to turn one case into four if all eight defendants eventually plead guilty. For those defendants going to trial, however, severance where granted can terminate guilt by association, and provide benefits comparable to the suppression of evidence. Despite the challenges, defense counsel with a client determined to go to trial in a multi-defendant case should seek severance from the bad company of defendants likely to be more culpable or less sympathetic to the jury.

Richard H. Maurer

FLAMM WALTON HEIMBACH & LAMM, PC

794 Penllyn Pike, Suite 100

Blue Bell, PA 19422

215-419-1575

215-419-1560 fax

 

[1] The doctor in question, Samuel A. Mudd, M.D., was pardoned and released from custody in 1869 after four years in a military prison. Unable to prevail over widely-held suspicions that he had conspired with Booth, Dr. Mudd inspired the old saying for those experiencing insurmountable disgrace: “His name is Mudd.”

What I did last fall

The attached transcript is a snapshot of the federal trial I defended last fall in Philadelphia, from the start of jury selection on September 7, through the return of verdict on December 8, 2016. The complete transcript, including the testimony of more than 50 witnesses, covers thousands of pages. By the time I brief the appeal, I will likely have read all of it. Complex litigation tends to take over your life for years at a time. My involvement in this case began on February 5, 2015, and will likely last for two more years minimum. My current record is a class action I defended for a large insurance company, which began in April of 2008 (I had just become a partner at White and Williams) and did not end until November of 2014. During those six years, my daughters went from elementary school students to upperclassmen in high school, and I suspect they will long remember “the PMA case” as the litigation I defended for so long.

In the federal trial that ended last December 8, I presented two extremely well-credentialed, articulate, and personable experts who explained to the jury the solid medical reasons why they disagreed that the drug-related death in the case could be classified as an opioid-related death. The interactions between the five controlled substances found in the decedent’s system post-mortem are unpredictable, and one of them, cocaine, can be lethal even in relatively small doses. Given the decedent’s use of crack on the afternoon he passed, and his prior development of serious heart problems caused by years of cocaine abuse, our experts agreed that if one had to assign blame to a single drug for causing this death, cocaine was the leading candidate.

Despite all this, the jury convicted my client of a drug delivery resulting in death, while acquitting my client of a myriad of less serious charges spread throughout the indictment. When I spoke with ten of the 12 jurors after the verdict, they congratulated me on a job well done, but remained mainly silent on their reasons for convicting on the “death count.” Was it a reaction to pervasive media coverage of the “opioid epidemic” throughout the trial, or was it possibly a sympathetic response to the decedent’s spouse, who came before the jury as a person devastated by her own addictions? We will never know, and this is one of the risks and mysteries of trying cases. Juries can be motivated, despite numerous instructions to the contrary, by things that never come into evidence.

US v Bado November 28 16

 

 

What Storm?

For the second time this winter, and the fifth time in recent memory, the Philadelphia media greatly overstated the impact of a low-key East Coast snowstorm, with the result that all local government (and most local business) closed for the day. This was the same day when I left home on empty roads at 9 am, the snow had stopped by 11, and the accumulation I left work to shovel had largely disappeared by the time I arrived back home at 3:30. Everyone loves a snow day, and it may be nowhere more deserved than in the Northeast United States, where Americans on average take the least amount of vacation, and there is no shortage of younger, more technologically savvy applicants to take the place of complacent and less competent administrative staff. However, our community willingness to allow a television weather personality to tell us when it is safe to go outside or go to work raises questions about autonomy, self-determination, and the current willingness to deal with the minor inconveniences that have always been part of winter.

People in northern climates have never been able to write-off one-quarter of the year on grounds that the roads may be icy and it might even snow. Hannibal crossed the Alps in winter, and Friedrich Barbarossa chose the same season to camp out on the front door of the Pope’s winter castle for a few weeks, to beg forgiveness for a minor misunderstanding of Christian doctrine. The late middle ages have in retrospect been dubbed a “little ice age,” although the burghers shown skating down canals in the works of Netherlands masters from the same era seem to be enjoying it.

Slightly more recently, in the winter of 1979, my older brother and I thought nothing of driving off in heavy snow, in a vehicle “equipped” with rear wheel drive and balding bias ply tires, to spend the afternoon skiing in the Poconos, and then digging the car out in the darkness and driving home, all the time without cellphones. Sliding off the road surface in darkness with no certainty of rescue was a possibility, but personal responsibility took care of that, and it added up to a risk we were willing to take for the sake of a cheap lift ticket on the best conditions of the year.

Today’s conditions, where schools, churches and local government all canceled operations, were a good deal more benign. But an expectation of the “snowicaine” had been paved by computer-generated models that snowed worst-case scenarios with two feet of snow covering Independence Hall, and best case outcomes still including 12 inches precluding anything but PennDOT snowplows from venturing into Center City. I have no idea how the data could be followed, but it’s not a stretch to believe that more people are watching TV, and responding to commercials by buying things, when the ominous approach of a dangerous winter storm is the lead story of the evening news.

Three things should have told us that media warnings of this storm, and the accompanying exhortations to stay home and “be safe” at all costs, were greatly overblown. The first is today’s date, March 14, 2017, with exactly seven days of winter remaining. When has anyone been stuck in the snow shortly before St. Paddy’s Day, and how often has a major storm struck after Daylight Savings Time (this year on March 12) took effect? Even when the skies cloud up, the sun is high in the sky until 6 pm these days, and that does not bode well for advanced snow accumulation. No doubt the weather-caster whose previous job could have been on the cover of Cosmopolitan had an explanation, but did it outweigh our collective experience with something called spring? I doubt it.

The second reason for doubt was the nature of winter this year. President’s Day weekend on February 18–20 was the warmest on record, to the extent I rode my motorcycle to central Pennsylvania with my wife in passenger position, and it was positively hot by the time we arrived in Annville in Lebanon County, making us shed two layers of bike clothing before having lunch and a (light) beer before riding back to Philadelphia. Weeks of abnormally warm winter weather had warmed the ground to the extent that a long-term freeze was impossible. This fact was also lost on the safety authorities.

The third reason for informed doubt that was the media’s track record in forecasting winter storms this year. When I came home late on the evening of February 8 after an orchestra rehearsal in Manayunk, the streets were deserted, window wipers were up on all the cars, and the state store was full of revelers counting on the next morning off. They were not disappointed, even though not a flake of snow was falling by daybreak, the roads were empty, and I had no difficulty finding parking directly across from federal court in Philadelphia, because the media, similar to the Pope’s visit, had scared everyone off from Center City. Even the court appearance I had driven into town for was canceled. Despite the prime location of the US Attorney’s Office (one block south of the courthouse), no representative of that office could be found to attend my client’s arraignment. They were all at home in the suburbs, despite the SUV in the garage. As for my client, she had no difficulty coming into town, despite recent brain surgery that has affected her sense of balance.

Why do people accept warnings of an impending snow-related disaster when their own experience and recent events all point in the other direction? I suspect that the answer is the power of consensus in the age of Social Media. If everyone takes the storm report seriously, and acts accordingly, then nobody needs to go to work, and nobody needs to feel uncomfortable about staying home, as the media has approved this course of action as decent — consistent with caring about the safety of family and loved ones.

But groupthink has its costs, among them the ability to venture out without certainty we will get to our destination, but with the knowledge we probably will if we look well ahead down the road and don’t panic. This lesson applies to many aspects of life and work, but nobody who stayed at home today learned it. Dealing with risk was always part of winter, and the relief of getting home safely, despite the odds, created a certain confidence in our ability to deal with adversity in general, whatever the season. When the slightest amount of trouble closes schools, when there’s never a slushy walk to the bus stop because someone might fall and get hurt, we lose something greater than winter. We lose the ability to deal with the unexpected, which remains inevitable in this life.

Motorcycle Survival and the Art of Trial Work

People in the office eventually realize that I ride to work. There’s no other explanation for the Hi-Viz jacket with body armor, the black buckled boots that could have been lifted from an infantry museum, the message from my mechanic that the new chain and rear sprocket went on just fine. The jacket yields to a suit, and the boots to more reasonable shoes, but the mind set of motorcycle survival remains with me throughout the working day. For two-wheeled survivors, riding isn’t an escape from speed limits and other restrictions of responsible society. It has nothing in common with the masked man who pops a wheelie the entire length of the Girard Street Bridge in Philadelphia. Instead, it’s total focus: predicting which cars will abruptly turn in front of me, scanning the road constantly for debris and obstacles, and always checking mirrors before I stop, for the texting driver too close who doesn’t notice the red light or me. Three rules of cycle survival have also served me well in the courtroom: (1) look well ahead; (2) look where you want to go (not where you don’t); and (3) develop total situational awareness. Aside from the rules, there is also the realization that something unexpected happens on every ride, from the left lane vanishing without warning in a construction zone, to the cloudburst on the Pennsylvania Turnpike, in the mountains near Pittsburgh, surrounded by semi-trailers. Aside from preparation, the ability to improvise under deteriorating conditions is another necessary aspect of trial work.

  1. Look Well Ahead

Since we are not encased in metal and lack seat belts with airbags, it’s essential for the rider to see problems far down the road, before the drivers do. It’s too late to notice a broken muffler in the roadway when you are about to ride over it, too late to realize you are in a blind spot when the car in the neighboring lane drifts towards you like a browsing whale, too late when the deer is literally in your headlights. The same holds true for trial work. For instance, it’s generally too late to compose your closing argument the night before the jury will hear it. I start working on it days before, during the lawyer down-time that accompanies the Court’s opening instructions to the jury. I write down what was so important that everyone heard it at the beginning, even those not finally selected as jurors. There’s the definition of reasonable doubt – a standard that is exceedingly high by design because a false positive (the innocent convicted) is the ultimate system breakdown in criminal justice. It’s not a stretch to tell the jury that beyond a reasonable doubt is the key to justice, the word that’s carved above the southern pedestrian exit from City Hall, looking down the Avenue of the Arts.

There’s also the lack of any obligation on the part of the defendant to testify, although in an age of instant social media commentary about anything, it’s a rare case in 2016 where my client does not tell his side of the story, as messy as the telling may eventually become. When that happens, the instruction that defendant had every right to remain silent earns him a gold star: He took the stand despite no obligation to do so (and it’s no surprise that an A.D.A. with college and law degrees was able to occasionally outsmart him in the process). Finally, there’s the instruction that the comparative number of witnesses called by one side or the other does not matter. Fortunately, the criminal justice system does not teach jurors the approach that General Nathan B. Forrest followed during the Civil War, of “getting there firstest with the mostest.” At trial, the first to go with the most witnesses is inevitably the Commonwealth. At my most recent jury trial this past June, the Commonwealth called the alleged victim, followed by a responding officer, the detective who took my client’s statement in broken English, and the sergeant who retrieved the surveillance video that ultimately acquitted my client of Aggravated Assault. When it was our turn, the sole witness was the defendant, because his English-fluent daughter could not take time from her job as a medical assistant on the Main Line, and his former spouse had left him over the financial pressures that followed criminal charges and temporary incarceration. The Court’s opening instructions to potential jurors provide a good framework for closing argument, and the length of these instructions generally gives defense counsel a good hour or so to work on the closing before testimony even begins.

The importance of looking well ahead surfaces during many other aspects of trial. It’s too late to fret over a bad answer when you still have good issues to cover with the same witness. Getting the negatives out of the way on direct, before the Commonwealth takes them out on cross-examination, is another way of looking well ahead. By the time the Commonwealth asks your client about his theft conviction from five years ago, they will already have heard it from the defendant, with an explanation that when he was guilty he entered a plea, but not in this case. Overall, it’s too late for regrets when there’s still time to salvage the situation down the road. So look well ahead.

  1. Look where you want to go (not where you don’t)

A strange but absolute rule of cycling is that the bike will go where you look, at any speed and under any conditions. It’s a mysterious bond between man and machine, but I am told that horses do the same thing. If I look at the slippery rail tracks that occupy the middle of 12th Street southbound towards Center City on a rainy evening leaving the office, I will inevitably ride on them, with potentially disastrous (or at least embarrassing) consequences. If I had looked this morning at the metal plate that the Streets Department had loosely nailed down to cover an expanding sinkhole under Kelly Drive inbound, there’s an excellent chance I would have hit one of the fastening spikes head on. This tendency is known as object fixation, and the cure is to look well ahead. If you look well ahead to the exit of a curve, moderate your speed going in and gently accelerate coming out, you will arrive safely at that exit point. But if you look at the guardrail at the edge of the same road, there’s an equally strong chance you will run into it and miss dinner with family.

If we look where we want to go during cross-examination, we will focus on the three issues that matter, and end on a high note. If we look where we don’t want to go, we will ask one question too many, argue with the witness in a futile attempt to undue the damage, and then give up on the lowest note of all – an objection sustained on cross. My discipline for cross-examination preparation is to first identify the handful of issues that will actually matter with a given witness, and then write each question out, limited to a single line of word-processed text. This forces me to be brief, and to truly ask one question instead of the compound, endless type that elicits uncomprehending silence from the witness, and confusion from the jury. I began this discipline as an associate at White and Williams, as a way to prepare for depositions of plaintiffs and their experts, people who would readily steamroll an inexperienced and nervous young lawyer. The partners I worked for derided the practice, since they did not see it as billable activity. I cut my own hours doing it, but persisted. What I should have explained to the partners was that I never actually read the questions I write out in advance. Instead, this level of preparation frees me to listen more intently to the witness, follow their lead down unexpected areas of inquiry, and finish one topic area before moving on to the next. This type of preparation also frees me from the need to take detailed notes, which I have frankly never understood in trials or depositions. It’s impossible to think of the next question while writing down the answer to the question that preceded it, and since nobody has a written record of what the witness just said, attempting to generate a verbatim transcription is a waste of time, an activity that would require the jurors to accept your recollection as true, as evidence, when they have just been told that nothing the lawyers say is evidence. Looking well ahead shows in preparation, and in the crispness of the questions we ask. In court as on the road, look where you want to go, and you will tend to end up there.

  1. Develop total situational awareness

Total situational awareness (TSA) is the result of good riding habits, practiced for years, that keep me out of trouble before it happens. Looking back to a different context, TSA also let me realize (as a music student at Juilliard in the late 1980s) when the audience was losing interest, and to accordingly bring the Bach suite I was performing to a more rapid conclusion than usual. TSA supports the now involuntary reflex of checking my mirrors while coming to a stop, for when the car in back of me is not stopping and I need to accelerate from danger. TSA also encourages me to move away from the pit bull straining at the leash, to notice a wooden produce crate about to detach from the truck in front of me, to anticipate the myriad brewing hazards that a car driver has no reason to be concerned about. There is undeniably a sixth sense of trial, where TSA guides you in a course of action that is not taught anywhere but in the school of life. In the aggravated assault case I mentioned previously, I began my closing argument with two words: “I’m disappointed.” Having caught the jury’s attention by starting not with a call to arms, not with the injustice of it all, but with an apology, I explained that I was disappointed with the complaining witness, for dismissing my client’s concerns about the property damage he had caused as “bullshit,” disappointed with my client’s son (for being the one who actually punched the complainant in retaliation) and most of all disappointed with my client, for not simply walking away – going back inside the apartment building where he worked as a superintendent and allowing the complainant to continue his rant over the perceived deficiencies of the building. I then reminded the jury that this trial was not about manners or morality, but instead about deciding if the evidence supported, beyond a reasonable doubt, all elements of the First Degree Felony Known as Aggravated Assault. Ultimately, the jury agreed that it did not.

The theme of disappointment was not something I had worked into my advance outline prior to closing argument. Similar to my preparation for cross-examination, I identify at most five areas for discussion with the jury (mainly because I cannot remember more than that without notes), and then write a series of single sentence observations under each topic. I never use the outline before the jury, but find that I can reliably visualize it, especially if I succeeded in making it sufficiently compact to fit on one sheet of legal-sized paper going sideways in landscape mode. In preparing the outline for this closing, the opener eluded me until minutes before I stood up, and the only way I can explain it now is as an instance of TSA. The jury needed to hear that what they had just seen on video represented failures by all concerned. They needed confirmation that my client should not have deployed a box cutter after enduring five minutes of insults and obscene gestures from the complaining witness, but that still did not result in Aggravated Assault, where as my client explained on the stand, no contact was either intended or accomplished.

The more cases you try, the more that TSA reminds you to apologize and rephrase for the witness who actually did understand your question but pretends not to, and to look interested and perhaps even take notes as the judge gives a closing charge to the jury that you have heard many times before. TSA ensures that you do not bore the jury, infuriate the judge, or alienate your adversary to the extent they will do anything to see you fall.

  1. Closing thoughts – sometimes you must improvise

Rules help, but it is also important to function when the foundation on which the rules operate has been pulled out from under you. On a recent Friday in August without a hint of rain, I could not resist riding from Philadelphia to Newark, NJ for a Rule 16 scheduling conference. The practical benefits included parking for free, sufficiently distant from the Courthouse so I could stow my riding gear and assume a lawyerly appearance in private, although a man watching from a Brazilian café across the street compared my quick-change act favorably to Clark Kent’s. The conference went well, with the reasonably prompt deadlines we want in a plaintiff’s case, but by the time I emerged from the Courthouse around Noon, it was easily 95 degrees. I went through the familiar drill of unlocking the bike, pulling on armored over-pants, jacket, then full-face helmet followed by gloves, get on, power on, pull in the clutch and press the start button, only to get nothing. Not even a click. I could have despaired, panicked and made an embarrassing call home. Instead, I realized that the contact points of the starter motor might be wearing out, and (with a short prayer) rolled the bike forward a few feet. This time I got a small spark, and after a few more feet of rolling, success. I was soon taking the long way home, riding west across New Jersey on Route 78 to Easton, so I could visit a colleague in Allentown before taking the Turnpike extension south, back home to East Falls (where of course, the bike started without incident the following morning).

I experienced the courtroom equivalent of sudden starter failure in an armed robbery trial last Fall, when the co-defendant who had previously been on board to exonerate my client as a friend who just stood there — while co-D did the brandishing, the threatening and the robbing — went suddenly and spectacularly south. He initially refused to testify at all, saying there was no need for it, since the Affidavit he had previously supplied me said it all. The presiding judge leaned towards me upon hearing this, apparently concerned that I had held something back from reciprocal discovery. I had not, and our judge assumed a more relaxed posture as the A.D.A. handing the case held up her copy of the Affidavit. Seeing that I had played fair, our judge reciprocated by dismissing the jury and then admonishing the witness that he had no Fifth Amendment right to refuse to testify since he had pleaded guilty and been sentenced for the same conduct at issue, and that he would be held in contempt and sentenced to five months and 29 days of additional consecutive custody for each question he refused to answer. This solved the reluctance to testify problem, but then the substance went south as well. The co-defendant who previously admitted to having the silver revolver now denied having any gun at all, invoking a silver-colored cell phone, and being pressured to plead guilty by a mean lawyer to something he did not do. Fortunately he was willing to authenticate the transcripts of prison phone calls where he repeatedly stated that my client had done nothing wrong, and this was enough for the jury to acquit my client of 2 of 3 charges, and for him to avoid a mandatory minimum for firearms used in connection with a crime of violence.

Looking back, the rules would not have prevented this temporary blow-up, but they did provide some guidance on how to get out of it. Looking well ahead did not reveal the impending witness meltdown, but looking where I wanted to go reminded me to use the telephone transcripts to bring this recalcitrant witness back to reality. Thanks to playing fair in discovery, the judge stepped in, and despite the witness going south on substance, he admitted to making the prior statements that removed my client from being an accessory to armed robbery. Like riding across town or cross-country, a distinguishing characteristic of trial work is unpredictability. Rules help, but sometimes, through no fault of our own, it comes down to improvising. If we didn’t like the risk, we wouldn’t be doing this.

Richard H. Maurer

JD: Georgetown 1993

Ride: Suzuki V-Strom 650

August 26, 2016

Justice Scalia on Post-Alleyne Sentencing

On October 14, 2014, Justice Scalia dissented with Justices Thomas and Ginsburg from the denial of certiorari in Jones v. United States, No. 13-10026, where the defendants were convicted of individual crack sales, acquitted of conspiracy PWID, but then sentenced to very long terms of incarceration after “the sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them.”

After surveying Alleyne and Apprendi, Justice Scalia says: “It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable — thereby exposing the defendant to the longer sentence — is an element that must be either admitted by the defendant or found by the jury.”  The only exception that Justice Scalia would apparently recognize is the fact of a prior conviction.

It’s a strange statement, but seems to break new ground.  In more basic terms, I am guardedly optimistic that, in Scalia’s view: “A sentence that is lengthened by judicial factfinding (other than the fact of a prior conviction) is substantively unreasonable unless the facts were found by a jury.”

If this view becomes the law, then it’s a significant change, and many lengthy federal sentences would become ripe for review, at least where the defendant raised substantive unreasonableness on direct appeal.  Perhaps my friend won’t be serving 105 years after all.

Life Sentence (my friend got 105 years)

With one hour left to Richmond, there are still no leaves on the trees but it’s looking more southern out the window of the cafe car. People come here to eat, not talk, which makes a better place to write than the seat I left two cars back. The train passed a farm with a couple of heavily rusted metal house trailers in the yard and an array of junk, mostly tires and other automotive debris, leaning against a barbwire fence which extended off from the train tracks into high dead grass. The thin asphalt roads stretching through passing shallow valleys have no sidewalks and are lined with sand. Glimpses of water occasionally show to the left of the train, although I don’t know if this is a wider part of the Potomac River, or part of Chesapeake Bay.

I assume trains ran on this track during the Civil War, since the description of Northeast Corridor renovations back at 30th Street Station in Philadelphia stated that most of the corridor track had been initially laid in the 1830s. If trains did run on this path, they must have carried a lot of dead and dying soldiers back to Washington, because the Army of the Potomac body count for the Wilderness, Peninsular and other Virginia campaigns was appalling, even by tolerance levels shaped by 20th century warfare. My understanding is that none of the northern generals were very competent, but that Grant made the fewest mistakes. I wonder if they talked their way through each battle, far from danger in the rear, like incompetents charged with responsibilities beyond their capacity today.

I am southbound to participate in another federal action, a criminal case against one of my few friends from high school in New Jersey which is scheduled for sentencing tomorrow morning. The stakes are high — Rory’s lawyer advised me that the Judge shows every sign of imposing a life sentence for a plan by which Rory charged the government top dollar for a large quantity of items passed off as ultralight and superstrong fasteners for aerospace applications, but in reality, they were no different from the nuts and bolts available from a neighborhood TrueValue hardware store. I am told that the federal government cannot tie any equipment failures to Rory’s fasteners, which under different circumstances could be welcome publicity for America’s Favorite Hardware Store (“we keep ‘em flying!”). It seems that any federal oversight involved in these purchases was either too well-entertained or inattentive to notice that the same fasteners could have been obtained over the counter for a few cents each, but I don’t expect to hear any of that perspective at sentencing. The problem for Rory is that he implemented this plan twice, once in the mid-1990s after which he was convicted and received several years in federal custody, and again around 2004, after which he got even more creative. According the archives of “America’s Most Wanted,” Rory converted his Phase II proceeds into gold which he was able to get across the Mexican border through the services of unsuspecting drug mules, and then got himself across the border, after which he faked his own death in the breakers off Cancun, arranged heavy publicity for that event to lull the FBI into complacence, and then went into comfortable hiding for about four years until someone blew his cover. Based on my memory of Rory’s dark hair, rugged features and large blue eyes, his arrest may have resulted from a relationship gone vengefully wrong.

Rory called me unexpectedly in my office about three years ago, at which point he was in a Mexican jail awaiting extradition to the Eastern District of Virginia. Scared of a federally-recorded phone call and not wanting to skew my chances for partner in the upcoming firm election, I merely advised Rory that the federal government normally obtains extradition, particularly of a US Citizen held by Mexico, and that the best use of his money was to retain a highly competent, high stakes criminal defense lawyer after his return to the US. I could not be that person because I am not admitted to practice law in Virginia, but have regretted not giving more help to Rory when he needed it. Many years ago, from 1977-80, Rory had been a good friend, especially in high school when differences in class and affluence were becoming noticable. Unlike some, Rory never hesitated to include me at a lunch room table or invite me to a party because I did not live in Lake Mohawk or come from an affluent family. Rory was also guilty on both counts. He lived north of Sparta on a twisty rural road, and when asked what his Dad did for a living, he would answer “industrial fasteners,” a term which led a good number of students and not a few teachers to chuckle or request clarification. What Rory meant was “screws,” but that term would have resulted in even more laughter. Thirty years later, that’s what Rory is alleged to have done to the federal government.

It’s almost dark now and we have reached the outskirts of Richmond. The train passes groups of well-kept clapboard houses in colonial colors of blue and yellow, with lots of Christmas lights, separated by patches of forest. Then we pull into Staples Mill station, which appears to be in the middle of nowhere. According to my Richmond mass transit schedule, the last bus to Center City left at 5 pm, and it is now ten after. The parking lot is empty in the growing darkness, the woman who sat next to me in the train pretends not to see me as she climbs into a waiting vehicle, but suddenly a cab pulls up. Not wanting to pay but realizing there are no other options, I hail the cab, which pops the trunk, closes the door, and then speeds off.
I note the lack of mass transit to City Center, and my driver agrees, “There ain’t none.” According to his card, my driver is Bubba, and within minutes we are engaged in a detailed discussion of Civil War history. I ask if Richmond burned to the ground like Atlanta while assuming it was, since this was the capital of the Confederacy. Bubba clears his throat and answers in a cigarette baritone that no, in fact a volunteer regiment of free blacks who served the Confederacy started a fire by setting off the remains of an ammunition dump, which led Sherman approaching from the west to believe that Grant had taken the city, and led Grant approaching from the south to believe that Sherman had taken the city, with the conclusion that each hostile force deferred to the other and advanced in a different direction. By the resulting miracle, Richmond was spared destruction, and the City is filled with antebellum red brick structures, many more than would have withstood a large hostile force. This summer I visited Czestochowa, home of the shrine of the Black Madonna who had repeatedly saved Poland from complete foreign devastation and was the only explanation for how a small Polish force was able to rout Stalin’s Red Army at the gates of Warsaw in 1920. She is a celebrity and I wonder if that status grew up around the Black Guard who apparently saved Richmond. I will look for a statue on the way to federal court.

Tarrant’s was recommended by the front desk for dinner. I walked a different route then the recommended path to get there, and on the way passed a small backalley establishment with a sign saying “Tarrant’s Take Out.” I went around the corner, to the entrance of the main restaurant, but the prices sent me back to Take Out, where on the table in front of me soon appeared an economical spread, with unlimited space to write in an empty large-sized booth, and no customers to turn on the TV. There’s no need for ceremony when eating alone, and the bright light by the takeout counter made it easier to type. The absence of company made dinner go fast and I was back at the hotel in less than one hour, talking with Rory’s counsel while pacing the hotel courtyard about what I planned to say. We agreed that recollections about school and Rory being a good friend would be helpful. A new point I formed in the train — that the emphasis in the time we entered the work force (late 80s/early 90s) — was money, and that Rory actually responded to these pressures effectively (his conduct briefly made him a millionnaire), is discarded as too nuanced for judicial consumption. After a third glass of Chardonnay I fall soundly asleep, and unusually for me, don’t wake until the alarm rings at 7.

Richmond again made a good impression as I walked to Court, along a shopping street going east-west like Chestnut in Philadelphia. The street was clean, sunlit, lined with historic redbrick buildings but unfortunately empty, and not just because it was 8:30 in the morning. The delicate storefronts seemed to date from the 1920s, with glassbox windows to display wares, decorative floor tiles at the entryways, imaginative floral details in the brick exterior walls. All still waiting for customers. Fashion clothing, art supplies, jewelry, toys, “Richmond’s Television Store,” each had a rent sign plastered where at this time of year, Christmas sale announcements should be. Most stores looked forlorn, as if they have not seen a customer for a very long time. Do they wait out the years conscious of time, or go to sleep until the people come back? The street was likely a victim of white flight to the suburbs followed by twenty years of big-box retail. Big box, which convinced a population that it should purchase large numbers of synthetic items from China and then put them in landfills when they broke, has not been brought to justice.

I got to Court early and was reviewing my notes when Rory suddenly emerged from a door in the wall and was brought to counsel table by two US Marshals. He was handcuffed and manacled in a blue prison suit, with pants leading down to a pair of shockingly red athletic shoes which I suppose he purchased in Mexico. I wave, he waves back and the Marshals allow me to shake his hand. A keen mind and prodigious memory is immediately apparent. Rory asks me about a girl I liked in 9th grade, who I have not thought of in years, then if I kept playing bass guitar. His questions are as if handed out of a time capsule. There was no serious thought of playing bass after I moved to Oklahoma, because cello made me well known, and the better I got the more popular I became. After a few minutes, Rory’s lawyer comes out the same door as Rory, and I turn over the conversation to him. Next to emerge is the Judge, and soon the proceedings are underway.

It becomes rapidly clear that the federal deck is towering over the defense side of this Courtroom, and that I am the only card Rory has. The Judge gives Rory one break, a two-point downward departure because his modus really did not expose anyone to death or serious bodily injury, but gives the government everything else it asks for, stacking up enhancements based on terms including “sophisticated operation” and “criminal mastermind” until the guideline sentence range, if the punishments are all made consecutive, is 105 years in federal prison, until the year 2116. Despite the overwhelming odds of obtaining a life sentence, the government presents the testimony of a sex offender awaiting conviction for failure to register, concerning comments which Rory supposedly made in jail about how to organize a breakout, including a hint that it would be helpful to blow up a police vehicle in the process. This talk between two bored inmates reminds me of two boys comparing notes on an issue of Soldier of Fortune magazine when they should be paying attention in Theology class, a discussion that Rory and I could have easily had in Tenth Grade without intending real consequences. Despite the unlikely scenario described by the witness (which involved him and Rory conversing freely through ventilation ducts under the watchful eye of corrections personnel), and his unsavory past (Roger’s lawyer does a good job getting admissions that the witness is a professional snitch), the Judge accepts that Rory actively planned an escape from federal custody, and adds a further two-point enhancement to the mix.

That left me as the second witness of the morning. After acknowledging that my last contact with Rory was in 1980, I added that in my opinion, the fundamentals of personality are formed by age 16, and that is how old Rory was when we last had contact, in correspondence exchanged shortly after I moved to Oklahoma in April of that year because my Dad found a job there. I remembered Rory for being inclusive, explaining that there was always a place at the lunch table or study hall when he was around. Bringing the testimony to the present, I mentioned how the few minutes of catching up that morning reminded me why Rory had been a friend to begin with — sharp intellect, optimism, and somehow still a sense of humor. To close, I invoked the Quaker teaching that every human being contains some of the light of God, and that while the wattage may vary, this is a difference of degree, not presence. I then asked the Judge to impose a sentence which would not extinguish that light for Rory, a sentence which would allow some hope of eventual release from incarceration. To my surprise, this introduced a theme to which the government and the Judge each responded. The government argued in rebuttal that the reason Rory’s accomplices got involved and were eventually convicted was the same inclusiveness I talked about. The Judge, while stating that he believed people did have an inviolable light of God and that Rory should use his abilities to help others in prison, followed the government’s argument and imposed a sentence of 105 years.

Because my train was scheduled to leave in 35 minutes and I had not yet checked out of the hotel, I was only able to meet Rory in cellblock for about 5 minutes. He said it was actually a relief to get sentencing over with, to now move on to the appeal. I expressed interest in getting involved, wished him well and then got out of the Courthouse as fast as possible. Stuck at a red light while running back to the hotel, I remembered that Bubba had given me his card, and he was at the hotel within ten minutes. The sky above Richmond was deep blue as my Taxi left the curb and I wondered if Rory could see it.

Trial Season

With few exceptions, the major trials in my career have happened between Labor Day and Christmas. Working backwards through the last three, there was the six lbs of marijuana in the back of a pickup truck case (defense verdict, December 2013), the class action merits trial (we eventually won, November 2013), and the “unwinnable” case of uncle molesting niece by marriage at a wedding shower (defense verdict, October 2013). In previous years, the timing was similar – US v. Roger Day argument in the Fourth Circuit (October 2012), going all the way back to 2000 (Fulmer v. Swidler, two-week internet defamation trial, November 2000).

This seasonal timing is good, because it coincides with the discipline of back to school, and cool mornings that make it easier to haul boxes and easels to Court.  This year started early, with a defense verdict in a robbery case on September 10, and a trial that almost went on September 16, until it became clear that the Commonwealth’s witnesses were not going to make the nearly six-hour drive from Coudersport to Philadelphia.

My next jury trial is set for September 29, a serious case involving a massive drug debt, illegal handguns and an allegedly terroristic threat. It will be an uphill battle, but something always happens at trial that helps in an unexpected way. Writing up my opening argument and witness examinations, I try to remember that the future is unwritten.