Tables Turned

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…

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Justice delayed is just as wrong for a defendant

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.

They want even more time?

I represent a defendant on appeal who entered open guilty pleas in a Philadelphia gun case (no shots fired, nobody hurt) back in March 2013.  My client remains incarcerated, with his state parole for a prior conviction now extended until late 2019.  Despite these circumstances, the Commonwealth appealed his sentence, because they want to “warehouse” him for 4-8 years in a state institution.  Your taxpayer dollars at work!

The first part of the argument section of my much longer opposition to the Commonwealth’s appeal is attached.  Hoping for the best.

A.             Two concurrent terms of time served to two years’ incarceration on the charges of violating Sections 6105 and 6106 of the UFA, subject to additional penalties for Whitfield’s violation of State Parole, was reasonable and consistent with the applicable provisions of the Sentencing Code.

The parties agreed on March 19, 2013 that the standard range for Whitfield’s UFA offenses was 48 to 60 months’ incarceration, plus or minus 12 months.  (R. 22b, NT 14/6-11).  The Trial Court’s sentence of time served to two years on the UFA charges was outside the guidelines, as a result of which this Court must decide if that sentence was “unreasonable.”  See 42 Pa. C.S. § 9781 (c)(3).  At the outset, Supreme Court authority instructs that an unreasonable sentence is one that is “irrational” or “not guided by sound judgment.”  Walls at 963.  These adjectives do not accurately describe Judge Schulman’s sentence in this case, most evidently because Whitfield remains incarcerated at SCI Somerset, pending a State Parole Hearing that will take place later this year.  Thus, while “time served” as of the Sentencing Hearing meant the 21 months that had passed between the June 19, 2011 offense date and the March 19, 2013 hearing date, “time served” now means the 31 months that have passed since June 19, 2011, and as Judge Schulman specifically recognized during sentencing, Whitfield faces the certainty “that the State Parole Board will be dealing with your parole case in the manner that will be appropriate.”  (R. 25b, NT 26/18-24).[1]  As a result, this case bears no resemblance to situations where this Court has vacated a sentence outside the guidelines as excessively lenient.  Compare Commonwealth v. Daniel, 30 A.3d 494, 497 (Pa. Super. 2011) (vacating 11 ½ to 23 month sentence where defendant had a lengthy criminal record, was on probation at the time of the incident, and “nearly killed an unarmed man by stabbing him in the stomach and he seriously injured another man.”).

In addition, the Trial Court’s sentence met all the criteria for review provided by the Sentencing Code.  The first requirement of Section 9781 (d) of the Code is that the Court “shall have regard for the nature and circumstances of the offense, and the history and characteristics of the defendant.”  42 Pa. C.S. § 9781 (d)(1).  Accordingly, Judge Schulman heard a detailed recitation of the facts from the Commonwealth – that when faced with an approaching caravan of police vehicles in the middle of the night on June 19, 2011, Whitfield removed a loaded Beretta semiautomatic pistol from his waistband, tossed it under a van near the corner of 22nd and Oxford Streets, and then attempted to sneak off into the night, only to be immediately arrested by Officer Hauser.  (R. 20b, NT /18-9/1).  On the consequences of having guns on the streets in general, the Trial Court heard four pages of testimony from Orla Treacy, a representative of Cease Fire Pennsylvania who covered the economic effects of gun violence (“they think, I’m not going to venture past Fairmount Avenue because it’s not safe”), and the danger of guns even when they don’t get fired (“in a lot of cases it’s just pure luck that there wasn’t a victim who was shot or killed”).  (R. 23b, NT 18/18-19/24).

The “history and characteristics of the defendant” were likewise thoroughly covered at the sentencing hearing.  Near the start of the hearing, defense counsel advised Judge Schulman, referring to Whitfield, that “he’s on parole.” (R. 20b, NT 6/3).  After the Court denied the Commonwealth’s request for a continuance, the first thing said by the ADA in the room was “Offense gravity score is 10; prior record is a 4; guidelines from an F-1 Robbery committed by this defendant sentenced in 2006.”  (R. 22b, 14/6-11).  After Ms. Treacy concluded her testimony on the community effects of gun violence, the Commonwealth characterized Whitfield, again referring to the 2006 conviction, as “somebody who cannot be near guns period.” (R. 24b, NT 21/4-5).  After each side had made its presentation, the Trial Court immediately noted that Whitfield “did state time at a young age” as a consequence of the 2006 robbery conviction.  (R. 25b, NT 26/1-7).  And finally, while imposing sentence, Judge Schulman made clear that “I was the Gun Court Judge for a year.  I fully understand what we are dealing with day in and day out, and I am not known as being a lenient sentencer.”  (R. 26b, NT 29/20-25).  There is no question that Whitfield’s criminal history was a primary fact of the Court’s consideration at sentencing, in compliance with Section 9781 (d)(1) of the Code.

The next criterion provided by Section 9781 (d) is “the opportunity of the sentencing court to observe the defendant, including any presentence investigation,” see 42 Pa. C.S. § 9781 (d)(2), and again there is no question that this element was met at the sentencing hearing.  After each side had covered its respective points, the Trial Court engaged in the following colloquy with Whitfield:

THE COURT: You are 28 years old now.  I look at you sitting here and you don’t look like the same guy who would commit a robbery and show up on parole with a loaded Glock and have the appalling attitude that comes out on this transcript.  You don’t look like that guy.  I would like to know, Mr. Whitfield, when you got out, did you get a job of any sort?

THE DEFENDANT: Yes.

THE COURT: Doing what?

THE DEFENDANT: Stage hands.  First I was working at Enterprise.  They fired me because of my criminal background, and I put on my application that I was a convicted felon, but they passed it.  So they fired me and wrote a letter of recommendation.  Then I started doing stage hands, and me and my wife opened our own business, and it’s still up and running, but it’s failing because of I’m in here.

THE COURT: Doing business as what?

THE DEFENDANT: Selling hair weave. 

(R. 25b, NT 26/25-28/1).  Evidently, Judge Schulman’s sentence was not the product of a perfunctory review of the facts, or a “cookie cutter” approach to either the defendant, or to gun-related crimes.  While the Trial Court denied as untimely the Commonwealth’s request for a continuance to obtain a PSI, the record demonstrates that Judge Schulman engaged in the individualized sentencing that is required by Section 9781 (d).

Finally, for purposes of this section of argument, the record likewise shows that Whitfield’s sentence satisifed the general standards of Section 9721 (b), which the record must show were expressly or implicitly considered by the sentencing court.  See Walls at 964, citing 42 Pa. C.S. § 9721 (b).  The first factor is “protection of the public,” and in furtherance of this, Whitfield remains in custody to date.  (R. 2b).  Further, Judge Schulman advised Whitfield: “You are never permitted to have a gun, Mr. Whitfield, ever.  Do you understand that?”  His answer was “Yes.” (R. 26b, NT 30/1-23).  While nobody was injured in either the July 19, 2011 incident or the 2004 robbery, Whitfield’s continuing supervision on State Parole after his release will further the protection of the public as required by Section 9721 (b)(1).[2] 

The second factor is “the gravity of the offense in relation to the impact on the victim and the community.”  42 Pa. C.S. § 9721 (b)(2).  While the June 19, 2011 incident fortunately did not involve a victim, the more general impacts of having loaded handguns on the streets of Philadelphia were covered in detail by the four pages of testimony given by Orla Treacy of Cease Fire Pennsylvania.  (R. 22b-23b, NT 16/22-20/17).  The third and final factor provided by Section 9721 (b) is “the rehabilitative needs of the defendant,” and again there is no doubt that Judge Schulman considered this at sentencing, where the Court asked Whitfield about his employment history, received ample facts about his wife’s successful hair weaving business, and then imposed anger management classes as a further component of the sentence.  (R. 26b, NT 30/24-31/1 – “Well, you clearly have an anger problem, so I will order anger management.”).

In summary, Judge Schulman’s sentence, imminently reasonable under the circumstances of Whitfield’s looming State Parole sanction, also met all criteria for review provided by Sections 9721 (b) and 9781 (d) of the Sentencing Code.[3]


[1] Whitfield’s 31 months in custody as a result of his arrest on June 19, 2011 is currently only five months short of a mitigated, guidelines sentence of 3 to 6 years.  By the time this case is argued, Whitfield’s time in custody will likely exceed what is necessary to achieve the functional equivalent of a Guidelines sentence, making this appeal moot.

[2] As a result of Whitfield’s convictions in this case, the Parole Board has so far taken away credit for Whitfield’s time at liberty from January 4, 2009 to June 19, 2011, and has extended his maximum date from October 23, 2016 to January 27, 2019 for the 2006 robbery conviction at CP-51-CR-507921-2004.

[3] While the Commonwealth chose to omit the transcript of the sentencing hearing from its Brief, the Commonwealth simultaneously goes outside the hearing record and into inadmissible hearsay to suggest that Whitfield’s use of the names Jalil and Devon somehow make him more deserving of a lengthy sentence.  See Commonwealth Brief at 5, n.1.  This Court should disregard the argument, as it is not based on materials that are part of the record on appeal.  Further, there has not been any confusion about Whitfield’s identity, and the suggestion that he might actually be a different prisoner by the same name, housed at SCI-Pittsburgh, is baseless.

“That’s not mine” – a primer on Constructive Possession in Pennsylvania

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. 

Prior Bad Acts

In a case that is scheduled to go to trial on May 13, 2014, the Commonwealth served notice that it intended to introduce three types of “prior bad acts” against my 77-year old client pursuant to Pa. R. Evid. 404 (b).  The three categories were: (A) sexual assaults of stepchildren that allegedly occurred between 35 and 40 years ago; (B) arguments between my client and his wife, which allegedly included the 33-year old wife getting slapped, hit with a chair, and locked outside the home; and (C) earlier assaults of the complaining witness that allegedly occured in Jamaica and Florida.  I am glad to report that after argument held on January 8, 2014, the Court precluded categories (A) and (B) from evidence, and will allow only category (C), the alleged assaults that occurred outside Pennsylvania.  While I am encouraged by the ruling, it will still make defending a difficult case even harder.  For those interested in more detail, portions of my Brief follow:

A.           The Court should preclude evidence of defendant’s alleged abuse of two step-daughters during the 1970s.

The Commonwealth seeks a result here that has never been duplicated in caselaw – the admission of alleged sexual assaults that supposedly occurred 35 to 40 years ago, in the mid to late 1970s.  According to the Commonwealth, A.K., now age 51, will testify that defendant molested her by digital penetration when she was between 12 and 14 years old, while her sister C.K. (age 43) will apparently testify that defendant “lifted up her shirt and sucked on her breasts” when she was 8 or 9 years old.  See Commonwealth Motion at 4.  Missing from the Commonwealth’s vague descriptions of these bad acts is any indication of where they happened, what were the surrounding circumstances, and if there were any other persons present.  It will be an exercise in futility for defendant to defend against these allegations aside from a blanket denial.  Due to defendant’s advanced age and the passage of more than three decades, he could not begin to reconstruct where he was, or what he was doing, at the time of each allegation.  Moreover, the allegations concerning what defendant allegedly did to AK (digital penetration) and CK (sucked breast) in the 1970s do not sufficiently resemble the allegations of this case (vaginal rape) to satisfy “the requirements of the common scheme, plan or design exception to the general rule that evidence of one crime is inadmissible against a defendant being tried for a different crime.”  Commonwealth v. O’Brien, 836 A.2d 966, 971 (Pa. Super. 2003).

The longest delay allowed by Pennsylvania caselaw between a prior bad act involving sexual abuse of a minor and the later assault of the complaining witness is the fourteen years found in Commonwealth v. Luktisch, 451 Pa. Super. 500, 680 A.2d 877 (1996).  More typical is Commonwealth v. Keaton, 556 Pa. 442, 729 A.2d 529 (1999), where the Supreme Court affirmed the admission of evidence from two of defendant’s prior victims, which occurred “over a period of less than six months” before the capital murder case against the defendant.  See id. at 537.  In Luktisch, the Trial Court allowed the defendant’s eldest daughter to testify at trial concerning sexual abuse that had occurred “fourteen years prior to those committed upon” the complaining witness.  Id., 680 A.2d at 878.  The Superior Court affirmed, in large part because only six years had passed between the end of sexual abuse involving defendant’s oldest daughter, and “the time he turned his depraved intentions upon” a later victim of similar misconduct.  Id.  Here, the passage of time between defendant’s alleged abuse of AK and CK and his alleged acts involving AM is between 35 and 40 years.  This period of time exemplifies the “excessive delay” which should preclude the admission of prior bad acts under Rule 404 (b).  See Smith, 635 A.2d at 1089.

B.        The Court should preclude defendant’s alleged abusive behavior towards his wife. 

The Commonwealth seeks to introduce evidence that defendant yelled at his wife, slapped her, locked her “out of the house in little clothing,” and also hit her with a chair.  The Commonwealth has not provided a date, time or place for any of these allegations.  See Commonwealth Motion at 3.  Nor has the Commonwealth provided factual averments that defendant’s alleged behaviors had any affect on the complaining witness’s state of mind, for example by inducing her to forego a prompt complaint of defendant’s alleged sexual abuse.  Instead, the Commonwealth asks the Court to infer that defendant’s acts directed to his spouse are a complete explanation for “why A.M. would not disclose the abuse to anyone over a three-year period.”  Id. at 20.

Caselaw makes clear that for evidence of a third person’s abuse to be admitted at the trial of a sexual assault case, that abuse must be severe, and also shown to have dissuaded the complainant from making a prompt complaint.  Commonwealth v. Dillon, 863 A.2d 597 (Pa. Super. 2004) proves the point.  In that case, the Commonwealth’s proffer concerning the defendant’s abuse of the complainant’s family members included the following:

  • “The victim personally witnessed her mother, and brother, Kenny, receive several violent beatings at the hands of [the defendant].”  Id. at 599.
  • “the victim was physically abused less, and isolated from the other family members.”  Id.
  • “by doing this, defendant was compelling the victim to comply with the sexual abuse by making her fearful of receiving beatings similar to that of her mother and brother.”  Id.
  • And finally, “in all that time, never once did the victim indicate to anyone the numerous incidents of sexual abuse until after the family finally moved away from [the defendant].  Id.

On this record, the Superior Court held that defendant’s abuse of the complainant’s mother and brother should not have been restricted to rebuttal evidence, but instead should have been allowed into the Commonwealth’s case in chief, because “the victim’s resulting fear of Dillon logically and persuasively explains her failure to report her abuse.”  Id. at 600.

The facts of this case differ from Dillon in several compelling ways.  Most noticeably, while Thomas Dillon was inflicting severe beatings to the point of breaking legs, the totality of the allegations against defendant is that he yelled at his wife, slapped her, locked her “out of the house in little clothing,” and also hit her with a chair.  See Commonwealth Motion at 3.  The inference that A.M. was terrified into silence by defendant’s alleged misconduct is not supported by any facts, and the speculation of the District Attorney are not a sufficient substitute.  While Mr. Dillon isolated his victim from the other family members and abused her less, the Commonwealth provides no indication that defendant behaved in a manner which indicated that abuse would be turned against A.M. or withheld, depending on her conduct.  In summary, the Commonwealth has failed to provide a factual connection between defendant’s allegedly poor behavior towards his wife, and A.M.’s failure to report defendant’s alleged sexual assaults while they were allegedly taking place.  Without this connection, evidence of defendant slapping his wife and engaging in other misconduct is nothing more than propensity evidence, inviting the jury to convict because defendant has behaved badly on other occasions.

C.        The Court should preclude evidence of defendant’s alleged abuse of A.M. in Florida and Jamaica.

Finally, the Commonwealth seeks to introduce evidence going back to 2008, that defendant allegedly sexually assaulted A.M., starting “when she was 9 years old in Jamaica,” and continuing to when the family moved to Florida.  See Commonwealth Motion at 3.  The request should be denied, because the cases upon which the Commonwealth primarily relies involved criminal convictions based on specific facts, not vague allegations.  In addition, allowing the Commonwealth to convict defendant based in part on actions he allegedly took in Jamaica and Florida would involve the improper, extraterritorial application of Pennsylvania law to acts allegedly done in jurisdictions that are able to apply their own criminal law to alleged offenders.

The importance of specific “prior bad acts” allegations is shown by Commonwealth v. O’Brien, 836 A.2d 966 (Pa. Super. 2003), where the defendant was arrested after befriending the ten year old son of a former lover, inviting him to defendant’s home for a visit, playing a pornographic film, and then attempting to rape the boy.  See id. at 968.  Prior to trial, the Commonwealth served notice of its intent to introduce the facts that supported O’Brien’s guilty pleas to molesting two young boys, age 11 and 8 respectively.  Id. at 967.  In the first case, involving the 11-year old complainant, the defendant admitted to meeting the child through his parents, inviting him over to his house, and then attempting to perform oral sex.  Id.  In the second case, the defendant similarly met the 8 year-old victim through his parents, arranged for the boy to visit alone, played a pornographic film, and then initiated oral sex.  Id.

The Trial Court precluded the facts of the two prior sexual assault cases to which defendant pleaded guilty, but the Superior Court reversed, finding that the specific facts of the two prior convictions satisfied “the requirements of the common scheme, plan or design exception to the general rule that evidence of one crime is inadmissible against a defendant being tried for a different crime.”  Id. at 971.  The Court reached a similar result in Commonwealth v. Ardinger, 839 A.2d 1143 (Pa. Super. 2003), where it readily reversed the Trial Court’s preclusion of the facts that supported defendant’s pending criminal case in Maryland, because those facts were a virtual duplicate of those which led to defendant’s prosecution in Pennsylvania.  See id. at 1143.  Specifically, in the Pennsylvania case, defendant befriended an 11 year-old boy after becoming close to his single mother, in time became a “substitute father figure,” and then attempted to fondle the boy’s penis after inviting him over to spend the night.  Id.  In the Maryland case, defendant befriended a 10 year-old boy after becoming close to his single father, engaged in sports activities with the boy as a “Big Brother,” and was eventually discovered while fondling the boy after inviting him over to spend the night.  See id. at 1144.

The facts of this case do not compare to the specific allegations of O’Brien and Ardinger.  In O’Brien, the defendant was charged with a crime that was a virtual duplicate of the two cases where he had pleaded guilty.  Ardinger likewise involved nearly identical criminal prosecutions, one pending trial in Pennsylvania, and the other pending in Maryland.  Here, the Commonwealth alleges a penetration of A.M. “when she was 9 years old in Jamaica,” and an attempted back massage in Florida.  See Commonwealth Motion at 3.  These vague allegations, compared to the offenses filed against defendant in this case, do not rise to the level of a common scheme, plan or design.

Finally, the prior bad acts admitted against the defendants in O’Brien and Ardinger were each the result of a prior judicial proceeding, where the acts had been found in violation of governing law, and resulted in criminal prosecution.  Here, in contrast, the acts which defendant allegedly committed in Jamaica and Florida apparently resulted in no official action in either location.  For this Court to now put defendant on trial in Pennsylvania for those same acts would effectively result in the extraterritorial application of Pennsylvania law.  See Kunzmann, 41 Pa. at 434, 1862 Pa. Lexis 40, ** 14 (observing that “the courts of Pennsylvania, therefore, have no jurisdiction over crimes committed within the territorial limits of another state,” and further noting that “crimes and misdemeanors committed within the limits of each of the United States are punishable only by the jurisdiction of that state where they arise.”).

Attending the 2013 National Trial Advocacy Session

It’s important for a trial lawyer to strive for constant improvement of communication skills. It’s also good to break out of the comfort zone, by hearing how judges and lawyers from outside Philadelphia approach trial work. I was fortunate this past August to spend ten intense days in Boulder, Colorado, as a scholarship participant in the 2013 NITA national session.  Under the watchful eyes (and merciless criticism) of seasoned faculty members, we took two complicated cases to trial, preparing opening statements, direct and cross-examinations of witnesses, and closing arguments. NITAs’ core philosophy is “learning by doing,” and it was invaluable to see myself on video, gaining skills with witness examination, judicial persuasion and handling exhibits which will help my clients succeed at trial.

Boulder is a beautiful city, surrounded by mountains and blessed with an ideal climate, but I did not get to see much of it beyond the bus route from my room on the other side of town. Class and workshop sessions started at 8 am, and lasted until 6:30 at night. After a short dinner break, preparing for the next day’s events often kept me busy until well past 10. The purpose-driven program was a welcome break from the routine pace of an office, where firing off another e-mail to a litigation opponent so often passes for productive work.

After the first set of trials ended on Saturday night, we were back in the classroom early the next morning, spending Sunday identifying the most promising themes for a new case study which we would take to a jury trial the following Thursday. As our workload increased, the days accelerated, and I was busy until minutes before trial, preparing a detailed direct examination of a corporate CEO, a cross-examination of the other side’s “star witness,” and my closing argument for the jury. In a case that had generally bad facts for the defendant, my trial partner and I were able to win over half of the jury, which would have meant a defense verdict in an actual courtroom. Before I knew it, the trial was over, and our jury members (drawn from the surrounding community) were providing their own, honest critiques of what they had heard and seen during the daylong presentations. The following morning, with only four hours for hiking, my wife and I clambered up one of the more challenging trails on the Flatirons (the mountains which form the western boundary of Boulder), and then hurriedly packed our bags for the return trip to Philadelphia.

The months that followed NITA showed the value of the National Session.  I won two jury defense verdicts this past Fall, in cases that my colleagues concluded were “unwinnable.”  While my writing often gets compliments from Judges, and sometimes even opponents, NITA also confirmed that I can help people the most by taking their case to trial.  My next jury trial starts on January 21, 2014.

View from my porch, July 2013

View from my porch, July 2013

A Lawyer’s Tour of Poland

Conference at Hotel Polski in Old City Krakow

Conference at Hotel Polski in Old City Krakow

In October of 2010, a Polish company hired me for litigation arising from the erratic operation of a costly machine that it had purchased from a Pennsylvania-based manufacturer. I went to Poland the following summer, attending days of videotaped inspections in Czestochowa that showed the machine doing things that brought production to a halt, while defying the best efforts of company employees to find a solution.  Between morning meetings, unexpected issues and constant communication in English and broken German, I developed a good relationship with company management, and we stayed in touch after the case settled favorably in November 2011.  We had dinner in London while I visited with my family in July 2012, and exchanged occasional emails afterwards.  Early this year, I learned that the firm’s in-house counsel had started his own small firm, and by May 2013, Michal and I formed a plan to give two presentations on US litigation, in Katowice and Kraków, to illustrate that yes, a Polish company can successfully file suit in the United States.

GETTING READY

My preparation had three main components.  First was to prepare a PowerPoint covering our main points in direct terms that could be readily understood by audience members who spoke English as a second language.  Second was to write a more detailed course outline for attendees who wanted to learn more about the details, such as federal diversity jurisdiction and emerging limitations on discovery.  Third was to gather examples from actual cases – of depositions, pleadings and motions –  to illustrate in concrete terms the concepts we would discuss.  When the first versions of materials were complete, Michal proposed new topics, and the reordering of others, to make the presentation more relevant for an audience of Polish lawyers.  It took about five weeks to prepare the course materials, and as my departure date came closer, I was glad to have started early.

LONG DAYS

I left Philadelphia after a Court case on June 24, taking AmTrak to Newark, where I caught a direct flight to Duesseldorf and an immediate connection to Kraków.  In transit, I was able to persuade the Lufthansa crew to allow my electric cello into the plane, and to have a good conversation with a representative of an HVAC company, each in passable German.  It was my plan, after the presentations were complete, to spend a few days practicing and then perform movements from several Bach suites in the Rynek, an expansive flagstone plaza in old city Kraków which is said to be the world’s largest.

Michael met me at Kraków airport and drove me to his home just outside of town, where after a traditional Polish breakfast, we continued to work on the presentation.  The apartment he shared with his fiancé was ultra modern, with stone surfaces everywhere and a green balcony garden.  Learning first-hand that jet lag is tougher in an easterly direction, I did not fall asleep until early the following morning, after staying awake for about 32 hours.  My room was in a beautifully restored building on ulica Biskupia (Bishop’s Street), and from the top floor window I could see an expanse of tile roofs, chimneys and steeple top crosses that looked unchanged from the 18th century.  The following morning, we had breakfast with a Polish lawyer who had taken the Widener University LLM course and passed the New York bar, and then hit the road for Katowice, to be preceded by a short visit to the city court of Bedzin.  The road was fast, with a new surface, no highway patrols and light traffic.  The contrast to covering the equivalent distance between Philadelphia and Reading on Route 422 was evident.

UPPER SILESIA

In a new country, everything can be a learning experience, and I probably tested Michal’s patience by asking about the pronunciation and meaning of many Polish words on passing trucks and highway signs as we drove northwest into Upper Silesia.  History is omnipresent in Poland, and I learned as we approached Bedzin that it was in the Russian-occupied portion of Poland during the 123 years (1795-1918) that the country vanished from the European map, while nearby Katowice was in the German part, and that Kraków was in the Austrian sector, its citizens largely content with that arrangement, and apparently devoted to the Austrian crown prince whose assassination sparked the First World War.  Most of Bedzin (like much of Poland) was under renovation, and the exterior of the courthouse had been recently restored.  Waiting for Michal to review a court file for clues to the ownership timeline of a nearby plot of land whose owners had long ago emigrated to Israel, I was struck by the basic similarities between this building and county courts throughout Pennsylvania: Court clerks emerged from offices with stacks of files on wheeled carts, schedules for the days’ proceedings in civil, criminal and family court cases were posted on each floor, parties to cases waited for their lawyers and asked for directions.  An appreciated difference was the lack of any metal detectors or noticeable security presence at the front entrance.

While waiting, I learned from Michal’s law partner that there is no public access to a Court file in Poland.  Instead, the client must provide counsel with a recent power of attorney each time the lawyer wants to review the file, and this PoA is closely reviewed by Court staff prior to releasing the file.  After obtaining the file and taking a few I-Phone photos of key documents, Michal concluded that the limitation period for ejectment had passed years ago, and that his client probably had no viable claim for return of the property from the present owner.  We walked back to Michal’s car (parked on the sidewalk, as usual in Poland) and pressed on to Katowice, center of the “conurbation” of Upper Silesia, a succession of industrial towns which over the years has blended together in a manner that reminded me of northern New Jersey.

A century ago, Katowice (then known in German as Kattowitz) was already a prosperous city, and clues to the source of that wealth can still be found on the city flag, which displays the profile of an industrial steam-powered hammer, of the sort used in a steel plant.  If Pittsburgh had adopted a trade-descriptive flag in the same era, it would have looked much the same.  That prosperity, combined with the scarcity of lawyers in Silesia, created circumstances that allowed the local Bar Association to purchase its own building, a spacious, five-story structure with an archway through the middle and a courtyard with parking in the back.  We were welcomed in, treated to coffee and cold drinks, and then visited by a succession of local lawyers, all of whom stayed for the presentation.  The letter of introduction provided by the Chancellor of the Philadelphia Bar Association was much appreciated by Adwokat Roman Kusz, the Dean of the Katowice Bar Association.

Although the clear majority of the audience understood me in English, the Bar Association had arranged for simultaneous translation, a difficult task at which our translator excelled.  Our audience was particularly interested in the wide scope of discovery in the US (in Poland, discovery can only be obtained in Court, where the Judge often asks the questions), and they were evidently shocked by the news that Pennsylvania judges are elected officials, who are politicians before they become jurists.  The Bar Association provided cake and pastries during intermission (served on real China plates), and when it was over, I received a bouquet of roses, a framed panorama of the Katowice skyline done in pencil, and a set of cufflinks with centerpieces made of two Silesian coal chunks.  Michal pointed out that my cufflinks, of material at least 30 million years old, were destined to be collectables.  It was late in the evening when we returned to Krakow, where I did some online reading on the industrial revolution in Katowice before ending a long day.

KRAKÓW

Our presentation site in Kraków was a restored, historic hotel on the edge of the Old City.  The conference room we rented for the occasion was state of the art, with remote controlled shades over the skylights, a pair of high-resolution projectors, and two certified translators doing real-time translation (as done at the United Nations) from English into Polish.  As lawyers continued to arrive, we slightly delayed the start time, and ended up giving the presentation for nearly 100 attendees.  Earlier in the day, I had reworked the PowerPoint to emphasize topics that had gathered the most attention in Katowice, and these final adjustments helped keep the interest of our crowd.  We were grateful for the attendance of some of the leading lawyers in Kraków, including Wojciech Bergier, local counsel for Microsoft, and Ms. Kinga Konopka.

As in Katowice, the audience was interested in discovery, and closely followed our re-enactment of an American-style deposition.  We also took many questions on the respective roles of the judge and jury, the differences between the federal and state systems, and methods to execute on a final judgment.  On this last issue, the audience particularly enjoyed my explanation of the role of the Sheriff (the all-purpose law enforcement guy) in Pennsylvania judicial proceedings.  After the presentation ended, I was glad to spend another 45 minutes or so answering individual questions and getting contact information from many participants.  That evening, we had late dinner at a wine bar down the street from the Church where Pope John Paul II served as a parish priest early in his career.  Once again, history in Poland was waiting around every corner.

ACTIVIST JURORS AND FINAL NOTES

After a weekend roadtrip to Berlin, I spent my remaining four days in Poland attending a divorce proceeding, finding notable bargains on Polish-made gifts at the Sukiennice (Cloth Hall) in the center of Old Town, jogging past historical landmarks, and also spending a few hours playing cello on the Rynek Square.  The divorce case (the short bit I was allowed to see) was fascinating.  The presiding judge wore a flowing black robe, together with a chain necklace from which hung a silver Polish eagle.  The overall impression was similar to the famous painting of Chancellor Thomas More from the mid-1500s.  On either side of the judge, in slightly lower chairs but wearing similar dark robes, sat a juror drawn from the community who intently listened to the testimony, but unlike the judge, did not ask any questions.  Michal explained afterwards that Polish jurors are free to dissent from the judge’s ruling, and that if one dissents, the judge must write a written explanation of his or her decision, and that if both jurors dissent, their decision overrules that of the judge.  This bit of direct democratic action was quite different from what I learned about civil law systems at Georgetown, but Michal further advised that activist jurors are not very common.

As for my classical busking in the Rynek, many stopped to listen, contributions were appreciated, and I was able to buy my colleagues several rounds of good Polish beer with the proceeds.  Driving back to the airport the following day was a time of mixed feelings.  It would be good to return to Philadelphia and my family, but the ten days in Poland had been a truly productive adventure.  We are already making plans for more presentations.

Juries Play Fair (when the world doesn’t)

In business, politics and our daily commute, we see rampant power rewarded.  The business that destroys its competition is praised for being innovative and nimble, exemplifying the entrepreneurial spirit.  The politician who speaks the loudest and most blunt message, who interrupts and then drowns out his quieter debate opponent even though the rules say not to, is praised for single-minded focus.  The fastest driver of the biggest SUV forces his way through the traffic signal at Broad and Vine, while those of us lower to the ground get out of the way and wait our turn, anonymously.  I’m glad to say that juries don’t respond well to the rude behavior that so often carries the day in business, politics and driving.

I was fortunate to have obtained a defense verdict last month in a case where my client was charged with distribution of more than five lbs. of marijuana.  The weight-based sentence would have been substantial had defendant been found guilty, and our trial judge would have repaid my client’s insistence on a jury with an enhanced term of incarceration had we been required to proceed to sentencing.  My goal in this trial, as in all, was to be the honest guide, to explain to the jury what really happened by having my client testify, and to then call the passenger in his pickup truck to explain that neither of them had put the box of marijuana in the truck during a move-out that had been interrupted by a domestic dispute, that instead it was probably the action of the passenger’s jilted girlfriend, who had been given a large amount of marijuana by a friend to temporarily hide.  I didn’t presume to prove these facts with certainty, but merely to get enough supporting evidence into the record to argue that they were at least as plausible as the Commonwealth’s view of the world.

I conveyed my message through the Scylla of an overexcited and dismissive ADA, the Charybdis of an evidently prosecution-oriented judge, and a Commonwealth expert who, as he took the stand, eyed me as the Ogre from Grimm’s Tales, who was about to grind my bones to make his bread.  The expert had evidently won over juries hundreds of times.  The ADA needed to ask only the most basic questions on direct, and the expert took it from there, explaining how marijuana is packaged, how drug dealers industriously hide and guard it, and how this particularly large freezer bag filled with marijuana would have had a street value in excess of $6,000.  The questions I asked on cross were merely annoying, like mosquitoes on the porch in August.  The expert didn’t answer my questions, instead using them as jumping off points to further embellish what he had said on direct, a diving board from which to launch a cannonball jump into my pathetic case of excuses.  When I politely asked the expert to answer my question, the Judge reprimanded me in front of the jury for not listening to the answer, or for opening the door to testimony that had nothing to do with the question I had asked.  As my cross-examination progressed, his comfort on the stand increased, inversely to the discomfort I tried to mask by smiling a bit, and holding my hands quietly in front me as he droned on.  The only time this expert helped me was when he thought he was doing real damage – he agreed that drug dealers guard their stock in trade, hide it as well as possible, and don’t let anyone near it who might be a stranger.

It so happened that my would-be drug dealer did absolutely nothing to conceal or guard the diaper box filled with marijuana that ended up in the back of his pick up truck with the detritus of a North Philly cleanout, drove it through town in a vintage, backfiring borrowed truck with an expired registration sticker, and made no attempt to escape from police as they began following him down 55th Street towards Arch.  The jury was struck by this disconnect between my client’s behavior and what Mr. Big Expert had told them a drug dealer does, and they definitely were not impressed by the ADA who described the suggestion that the passenger’s girlfriend had secreted the marijuana in the truck bed as “crap” and “garbage.”

I learned several other valuable lessons by speaking with the jury after the verdict.  They did not appreciate the expert interrupting me, and as the Judge was reprimanding me for asking for an answer instead of a speech, the jury agreed that the expert answered almost none of my questions.  Far from impressed by the shock and awe tactics of this expert, the jury described them as disrespectful, arrogant, as not playing by the rules.  While the jury agreed (with reference to the adage that hell hath no fury like a woman scorned) that the passenger’s girlfriend could well have placed the box of marijuana in the pickup truck just before it drove off, they were concerned about what had happened to this woman – had she been the victim of retaliation by the drug dealer who had entrusted her with six lbs. of marijuana, only to have it vanish into police custody?  My answer was that as far as I knew from the witness, the woman was doing ok.  I also reassured them that my client had never been in trouble with the law before, and that he really was a registered nurse who did cleanouts and other odd jobs on weekends.

What the jury appreciated most was being provided with facts.  They watched intently as a police officer drew a diagram of where he had recovered the box of marijuana from the pickup truck loading bed, and agreed with the main point of my cross-examination: That his depiction had moved the box several feet closer to the passenger compartment, compared to the description he had given under oath a few minutes earlier.  I realized while talking with the jury, that if they if they had been guided by the rules of the Business Journal, of party politics, or of the road, me and my client would have been written off, and possibly laughed at in the process.  But the jury took seriously a duty they had sworn to uphold just before trial began – to do justice.  Thanks to their collective decision to honor the oath, this unlikely trial lawyer received another defense verdict.  I will remember them – the stern Vietnam vet, the student at Peirce College, the stay at home mom, the skeptical city worker, for a long time to come.

Life Sentence

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

Lawyer-Cellist Back on Stage

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.


[1] J.R.R. Tolkien, The Twin Towers (Peter Jackson 2002).