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.

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.

I spent too long, from April 1996 until June 2011, working in two large Philadelphia defense firms defending all manner of civil actions. An important part of this work was processing plaintiff’s discovery requests. I began with the proposition that discovery should be answered promptly, in a reasonably complete manner, with responsive materials either produced immediately, or soon afterwards, subject to the terms of a protective order. I soon learned that this was not the approved way to go, both in terms of billable hours (my way was too quick, too efficient, too inexpensive for the client), and in what the partners perceived as good litigation practice.

Instead, the approved drill was to wait until about three days before the deadline, then request at least another 30 day extension, and then crank out boilerplate responses that consisted of 7/8 objections, with the remainder comprising information that the plaintiff probably already had about the incident. I like to think that my approach to discovery while at Big Law was more accommodating than this, but without the actual responses in front of me, maybe not.  Perhaps because of the pressure on defense firms to maintain billable hours during the ongoing legal recession, it seems that discovery response tactics have grown more blatant.

So it is with some irony that I find myself representing two deserving plaintiffs in a civil rights action, where defense counsel did the following: (1) insist on a confidentiality agreement governing Internal Affairs records for the police officer defendants, before discovery began; (2) demand a six week extension to serve responses to my requests for production of documents; (3) admit, in the belated responses, that two of the officers in question had IA records for excessive use of force; and then (4) refuse to produce those records, on grounds that ANOTHER confidentiality agreement was required before those materials would see the light of day.

A U.S. Magistrate rejected position (4) last week, asking defense counsel, “How could you think that?” but this did not stop the nonsense. Counsel then took the position that she could not produce the IA documents in question because she had not seen them yet.  Today, eight days after the Magistrate’s warning, I was advised that the IA documents have still not been located, but that if they contain information that defense counsel finds to be irrelevant or incorrect, they will still be withheld.

I gave counsel two days to produce the materials, after which I will file a Motion to Compel. It would probably make the most sense to start drafting that document now…

More than two years ago, the Philadelphia Court of Common Pleas appointed me to represent a 76-year old man that had been accused of molesting the 12-year old daughter (by a prior relationship) of his 32-year old wife.  The allegations were made suddenly, in June of 2012, with no prior mention of misconduct.  My client, William M., then spent 8 months in the substandard conditions of Philadelphia Prisons, until I obtained his release on House Arrest in March 2013.  House arrest confined my client to a tiny rented bedroom in the rough, Strawberry Mansion part of Philly, without the ability to shop, exercise, or look for the occasional odd job (my client is a skilled cabinet maker by trade, but would pick trash for money).  All requests to relax the boundaries of house arrest were denied, as if I was asking for a Caribbean vacation at state expense. I would occasionally visit him on my way home, he never fails to greet me with a cheerful, “Hello, Mr. Richard.”

Over the months that followed, I learned that William had been diagnosed with prostate cancer in 2009, and with Pyronie’s Disease (you don’t want to know what this does to the privates) in 2010.  In 2011, Willam had received high-dose radiation therapy that rendered him impotent, and otherwise unable to engage in the lurid sexual episodes that the minor witness had described to investigating police.

Trial had been scheduled to start this past Monday, September 15, and with expert testimony from William’s treating physician at the University of Pennsylvania that he could not have engaged in the acts alleged, we were reasonably confident of success.  I prepared for trial throughout the weekend of September 13-14.  What happened next was a prolonged waste of time.

Day 1: After waiting more than two hours, I argued in opposition to the Commonwealth’s request to call a physician to state that the complainant’s lack of physical injury upon examination was still consistent with the alleged assaults.  Aside from the low value of this expert opinion, I advised the Judge that my argument was not, “See, the complainant exam was inconclusive,” but rather “this old man’s illness made spontaneous sexual activity as described by complainant virtually impossible.”  The Court granted the Commonwealth’s motion, giving them a medical expert to even the score with mine, and told us to come back the next day.

Day 2: After waiting more than three hours, we were told that the presiding Judge could not hear our case, since the case before ours would be going to jury trial, and that of the nearly 100 judges of the Philadelphia Court of Common Pleas, none could be found to hear our case with a jury.  My expert, who had cleared his schedule for months in order to testify on September 17, was frustrated by the inability to conclude this.  My client, deprived of the chance to clear his name and get out from under the weight of serious felony charges, was also disappointed.  For my part, going from preparing opening statements to being on indefinite hold was the opposite of what trial lawyers are supposed to do.

At the end, with neither the complaining witness nor her mother ever sighted, the Court at last granted my motion to terminate house arrest, as a result of which my client is finally a free man pending the new trial date.  We have no idea if the complainant and her mother, who now live about 5 1/2 hours from Philadelphia, will ever appear for trial.

So, in the end, what happened? An elderly man with no prior record was deprived of his liberty, first in jail and then on house arrest, from June 12, 2012 until September 16, 2014. A lawyer (that’s me) has devoted a huge amount of time to trial preparation, only to be told to come back in six months. And finally, the judicial system sends a message: It will not reward preparation, timeliness, zeal, or any other traits of a good defense lawyer.  The Judges are too busy with other cases.  What they are, or where they are being tried remains to be seen.  The Criminal Justice Center was virtually empty when William and I left there yesterday afternoon.

Many criminal cases rest on a prosecution claim that because one passenger of a vehicle, or occupant of a room, possessed something that was illegal, then other people in the immediate area are also to blame for possessing the item.  This legal fiction, called “Constructive Possession,” is subject to rigorous proof requirements in Pennsylvania.  In practice, however, Judges tend to overlook the required elements of Constructive Possession in favor of something that could be called Guilt by Association.  

In a recent trial, I overcame this judicial bias by having each defendant (the driver who actually possessed the gun and his front seat passenger who didn’t) testify.  The driver said he didn’t show or tell his passenger about the gun, and the passenger testified that if he knew a gun was present, he would have exited the vehicle immediately.  Without this testimony, it is likely that my client would have been convicted of possessing a handgun, despite the absence of any direct testimony that he knew of its presence.  A piece I recently wrote on the required elements of Constructive Possession follows:

I.          INTRODUCTION 

We put ourselves at serious risk of criminal prosecution when we ride in a car, visit a home, or even walk with a group of friends, if one person among several is carrying drugs, a gun, or something else illegal.  To prove the point, Pennsylvania law provides a five-year mandatory minimum sentence for all “accomplices” (basically, anyone in the immediate area) if a police find a gun in or near an alleged crime scene.  We are not our brother’s keeper, but what our brother is carrying can land us in serious trouble.  Therefore, we provide this guide to the doctrine of constructive possession. 

II.        ELEMENTS OF CONSTRUCTIVE POSSESSION

The Pennsylvania Superior Court says that “constructive possession is the ability to exercise conscious control or dominion over the illegal substance and the intent to exercise that control.”  Commonwealth v. Kirkland, 831 A.2d 607, 610 (Pa. Super. 2003), see also Commonwealth v. Hamm, 301 Pa. Super. 266, 447 A.2d 960, 962 (1982) (“To prove constructive possession of an item, the Commonwealth must show that the defendant had both the intent and the ability to control the item.”).  “At the very least, the evidence must show that the defendant knew of the existence of the item.”  Id. (string citation omitted).  Importantly, a Court “may not infer that [defendant] knew of the weapon’s existence simply from the fact that it was hidden in an automobile.”  Id.  In Hamm, police officers driving “about half a car length” behind the vehicle operated by defendant James Hamm observed a back seat passenger pass an unknown object to the front seat passenger, who was then seen to “bend down in a forward motion as though placing something on the floor in front of him.”  Id. at 961-62.  Hamm pulled over voluntarily (because he recognized the passengers in the unmarked car behind him as local police officers), and as the passengers exited the vehicle, the officers saw a .22 caliber revolver resting on the front floorboard, passenger side.  See id. at 962.

Mr. Hamm was found guilty by a jury of possession of the revolver and of conspiracy to possess the same weapon, but the Superior Court reversed each conviction.  On constructive possession, the Court reasoned that, even if Mr. Hamm had seen the revolver as it was handed to his front seat passenger, “there was no evidence to suggest that [Hamm] knew of the weapon’s existence before it was produced by [the rear seat passenger].”  Id.

            The Superior Court reached a similar conclusion in Commonwealth v. Boatwright, 308 Pa. Super. 41, 453 A.2d 1058 (1982), where it vacated defendant’s conviction for Carrying a Firearm Without a License.  See id., 453 A.2d at 1059.  In Boatwright, City of Pittsburgh police officers responded to a radio call for three “suspicious” men seated in a vehicle parked in front of a residence.  Id. at 1058.  Upon arrival, officers observed Albert Boatwright seated in the front passenger seat of the vehicle, and then watched him “moving towards the left rear” of the vehicle.  Id.  After police ordered all occupants out of the vehicle, they observed a handgun on the floor of the left rear passenger compartment of the vehicle, the same area to which Boatwright had been seen “moving towards.”  Id.  Reviewing the elements of constructive possession, the Court observed that: (1) “the Commonwealth must present evidence to show that [defendant] had both the power to control the firearm and the intent to exercise that control;” and that (2) “mere presence at the scene where the gun was found is not sufficient.”  Id. at 1059.  The Court concluded its analysis by vacating Boatwright’s conviction, because “the only evidence other than mere presence was [the officer’s] testimony that appellant made a movement towards the left rear of the vehicle.”  Id. 

            More recently, and in the context of Possession of a Controlled Substance, the Pennsylvania Supreme Court observed that “the existence of constructive possession of a controlled substance is demonstrated by the ability to exercise a conscious dominion over the illegal substance; the power to control the illegal substance; and the intent to exercise that control.”  Commonwealth v. Johnson, 611 Pa. 381, 26 A.2d 1078, 1093 (2011).   The Johnson Court went on to hold that the lower courts had erroneously concluded that the defendant, Omar Johnson, could be held in constructive possession of a large quantity of drugs found in a co-defendant’s vehicle, which Johnson did not own, control, or enter.  See id. at 1095.

III.       CONCLUSION

The cases discussed above show that defendant can win in a constructive possession case, but the key to success is defense counsel who understands how to battle the Commonwealth on each element of constructive possession. 

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 northern army 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 with 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.

Postscript: The Petition for Certiorari that I filed for my friend in the US Supreme Court in March 2013 follows below.

Day v. United States cert petition final

Standing on the platform waiting for the 1:05 to Trenton, I had with me two black containers.  One was a battered rolling briefcase, the bulging legal kind, which carried the tools of my trade – a motion to which I would be filing a response, caselaw to give my argument added traction, the netbook to write it down, a side-pocket assortment of highlighters, post-its and binder clips.  The other container was a cello case, and inside was an instrument I purchased in July of 1987, two months before I started a master’s degree at Juilliard, and two years before I improbably began studying for the LSAT to get into law school.

I needed a better instrument then, but my parents did not have $37,000 to purchase the outrageously fine Italian cello, a Rocca, on which I won the Aspen Cello Competition in 1986.  A teacher lent me the modern Italian instrument on which I played my Juilliard audition, but it was due back by the end of the school year.  I needed to find something quickly, before school started up in the fall, and on a small budget besides.

After playing a three week music festival in the Texas Hill Country that June (young musicians play “festivals” for a roof over their head and three hot meals per day in the summer), I got a ride to Los Angeles, which I heard had more reasonable prices than New York.  It was there, in Hollywood of all places, that I found the cello I still have.  It’s almost Italian – made in Rio de Janeiro by Vicente Lo Turco, who had emigrated there from Naples to make violins, cellos and inevitably, a lot of guitars.  My instrument has the red varnish and big singing sound of an Italian cello.  The art deco label which says “Rio – 1925” ensures that it will never have the trade-in value of a Cremonese cousin, but if this cello could talk, it would tell of green room jitters before going on stage, innumerable auditions, wedding gigs, church music, and the innumerable hours of practice which made it all happen.

Aside from the content, a good thing about a cello case is that you can lean on it.  The top of the case (underneath is the scroll and tuning pegs) fits perfectly under my right arm, and the support makes me bold and relaxed at the same time, an effect which I am told also comes with cigarettes.  Throughout my legal career, and particularly in the early days looking for a first job, I fought the impression that as a classical musician, I would be an undisciplined free spirit, a flower child with a folding music stand.  In reality, we are closer to Marines or gymnasts.  For the performance major, music school is endless training, much of it focused on strength, where striving for 115% ensures that even an off day meets standards.  This musical foundation supports a litigation practice which emphasizes proportionality, accountability, and tenacity rooted in the knowledge that “the show must go on.”

Throughout my big-firm years, I saw well-assembled and persuasive efforts, from briefs to oral argument, lose their spark when someone’s new issue needed to be prominently included, often at the last minute and regardless of the consequences to the whole.  From performance, I know that a simple piece well-played, even a three-minute Gavotte from one of the Bach solo cello suites, will outshine a hastily assembled symphony.  While proportionality in civil discovery is a relatively new addition to the Federal Rules, it has been a guiding principle of concert music for centuries.

To me, accountability means that nobody should be expected to attain an outcome which the boss himself is not ready to achieve.  This is a given on stage, where performance cannot be delegated.  In a law firm, sharing work by dividing responsibilities is essential, but that does not mean the associate becomes an excuse for the partner to lose focus.  Ideally, delegation should be like chamber music, where some parts are more complicated than others, but each is essential to the whole.  My goal is to strengthen the associate’s command over the part they will play, while never forgetting that mine likewise needs to be practiced and ready (without last minute, support staff “fire drills”) before argument.

Last, knowing that “the show must go on” equips me to deal with the unexpected, from the tripod refusing to unfold for the blow-ups I need to show the jury, to the boxes which are still on their way over to City Hall, to the jury pool for my very first trial, who all stood up when I asked them “does anyone think DUI is immoral?”  In Pablo Casals’ memoirs, he told of being so nervous for his first concert in London that his bow shot out of his hand, only to be quietly passed back towards the stage, from one audience member to the next, until the show could go on.  The tough, unexpected moments effectively reveal character and the extent of preparation.

Far from Royal Albert Hall, I waited at 30th Street Station for a train to Newark, for a rehearsal at the New Jersey Performing Arts Center.  The occasion was a benefit performance of Something Funny Happened on the Way to the Forum, a 1963 Stephen Sondheim musical featuring togas and tunics, courtesans and eunuchs, multiple mistaken identities, and a challenging cello part which I was invited to play as largely as possible, since I was the only cellist in the ensemble.  The realized vision of New Jersey Law Journal publisher Robert Steinbaum, this “Celebration of Lawyers in the Arts V” was to benefit the NJ Volunteer Lawyers for the Arts, through ticket sales and a gala reception before the show.

I was glad for the invitation to play.  After working up two movements from the Bach d minor cello suite for some church performances in June, I had hardly touched the instrument, the consequence of spending ten days in Poland on legal business, and then catching up with work and client invoices after returning in late July.  Fortunately, shows are ideal for recovering instrumental strength.  When played with alternative fingerings, a repetitive, “nothing” bass part becomes a useful intonation study.  After two, 3-hour rehearsals, I felt my strength returning, and thought of Théodin, King of Rohan, who wakes from an enchanted sleep to be urged by Aragorn that his fingers would remember their old strength better if they but held their sword.[1]  My fingers continued to remember their old places on the fingerboard, my bow pulled straighter, and after two roundtrips to Newark (typing briefs most of the way), the performance on September 14 went well.  It was good to be on stage again, where something always happens differently than planned.

The cast of singing actors, particularly Pseudolus (the slave who earns his freedom by uniting his bashful master with a courtesan pledged to a general) and Senex (the harried husband who briefly rivals his son for the courtesan’s attentions) far surpassed their efforts in rehearsal.  Backstage with the string players, plans were forming for a Metropolitan area lawyer’s orchestra.  A recurring theme in post-performance e-mails was how pleasant everyone was, how we worked for the most part seamlessly towards the common goal, how different this was from the ruder expectations of lawyer work.  In some of these messages I could hear a muted regret for the path not taken.  Yes, it was good to have a larger and more steady income as a lawyer, but high level performance made us younger, like Benjamin Button going backwards through time on a motorcycle.

I did not stay for the cast party, but it was still well past midnight when I returned to Philadelphia after “Forum” came to a successful close.  With a difficult client, answers to written discovery due, an emergency motion and then a motion response, ten days without practicing passed in a blur.  Inevitably, I started up again, this time working on the remaining movements of the Bach d minor suite, which I learned at age 17, and somehow remains intact in my memory.

My participation in “Forum” did not make economic sense, with train tickets and an endless drive to Upper Saddle River for the penultimate rehearsal.  It did not make time-management sense, shutting down my office computer at the last possible moment while conducting a mental inventory of what briefs needed to come with me but still forgetting my music stand.  But as a way to experience energy, purpose, and in the end accomplishment, my participation made all the sense it needed.

© 2011 Richard Hans Maurer

Richard Hans Maurer is a Philadelphia-based trial lawyer, with trial experience in a wide variety of cases, from products liability to 1st Amendment.  After three years as a Partner at White and Williams, Richard formed his own firm, Maurer/Song PC, in June 2011.  Richard can be reached at richardhansmaurer@gmail.com, or at 267-297-5470.

July 16, 2011

As the train moved west towards Berlin, the land became drier and more vast.  The bogs visible yesterday from the train between Czestochowa and Warsaw were replaced by open fields bordered by pines.  From this faster train, I saw less birch, more oaks and maples, surroundings familiar from central Pennsylvania.  The Oder River between Poland and Germany was no wider than the Schuylkill, and it was strange to think that this river served as a major boundary between two nations for such a long time.  Impossible to think of two mutually hostile peoples facing each other down across a distance no greater than the span of the Falls Bridge in East Falls.

But I think this is part of a misleading historical generalization, fine for propagating stereotypes or selling movies, but a poor substitute for reality.  Today, the maps of eastern Germany and western Poland give each town and city two names, one in each language.  There is Wroclaw/Breslau, Szczecin/Stettin, and more.  And this is how it was for centuries.  Nikolaus Kopernik (Copernicus) spoke German at home, but could get by in Polish, and accepted the local Polish ruler as the sovereign authority.  My grandmother, Margarete Stresemann, spoke German and identified with that culture, but a quick glance at any photo will confirm that she looked far more Polish, or Russian, or something other than what I associate with ethnic German.  My guess is that she understood more than a little Polish to get by in Stettin/Szczecin.  I am sure that a porous frontier is more fun, more vibrant and more filled with ideas than one which is closed off by a wall.  Between Poland and Germany, where citizens of each country do not need a passport or even photo id to cross, the present is returning to the past with excellent results.

Suddenly, a few minutes after the Oder crossing, the signs are in German and I can read them.  The train is now moving much faster, maybe the tracks are in better shape.  I see a highway overpass which looks like any at home, and a small German flag waving amid the cucumbers in a garden fast by the railroad tracks.  After passing a small town with more signs which make sense to me, I see a half-circle of more than a dozen huge power windmills, with massive fan blades turning in the breeze.  We don’t have these in Pennsylvania.