26 February 2015

Will Shelly Silver owe me a fee?

Some years back, a lawyer who had successfully urged a novel legal theory upon a court, asserted a legal claim against another lawyer who had subsequently used that legal precedent to his client's advantage. The first guy sought recompense on the ground he had a proprietary interest in the rule of law he had helped to establish. Nonsense? Sure. But intriguing, non? After all, we honor creativity, that’s why we have copyright, patent, commercial secrecy statutes and doctrines. Why not protect unique legal maneuvers too? Ahh, you know the answer.

So my thoughts run to the NY Times article describing former NY State Assembly Leader Sheldon Silver’s effort to dismiss his federal corruption indictment on the ground the grand jury deliberations were tainted by the prosecutor’s publicity statements. Silver asserts the prosecutor not only made public statements but leaked incriminating information to the press prior to the grand jury’s determination.

Why does that ring a bell? I’m glad you asked.

Once upon a time, I represented a public official who was a heartbeat away from the Presidency. (Well, more like a stroke of the pen away, because President Nixon ultimately resigned and Spiro Agnew would have succeeded to the Oval Office if only ... .)

There are lots of good anecdotes arising out of that representation, and here’s the one relating to Mr. Silver’s motion to quash the grand jury indictment:

Shortly after re-election of the Nixon-Agnew ticket, press accounts exploded onto the scene reporting that confidential government sources had revealed the US Attorney in Maryland was running a federal grand jury investigation into possible “Pay to Play” illicit payments to Spiro Agnew while he had been Governor. Huge scandal. Huge. Front page stories every day. So big, that all the federal judges from the state of Maryland recused themselves, and the Chief Judge of the Fifth Circuit brought in Judge Walter E. Hoffman from Virginia to take control of the case.

It will not be a surprise to many to learn that the first duty of a criminal lawyer is not to win at trial--it is to avoid a trial, and the very best way to do that is to avoid an indictment. You use all legal means, starting with persuasion, and if that fails, you construct as many legal obstacles to indictment as you can. Because there is a severe lack of available building materials for that project, ingenuity is paramount.
All of which led us to a pre-indictment conference with the good Judge Hoffman, attended by defense lawyers and the prosecutors, at which we complained bitterly about government leaks. The prosecutors said, “It ain’t us.”  We said “Well, the press says it is,” and the sensible Judge Hoffman turned to us and said, “Look, fellas, these reporters are not always accurate truth tellers. This is a hot story. Why should I believe them that the government is leaking when the government tells me it is not?’’ A fair question, I admit, but we were ready for it. We said, “Ok, Judge, let’s put 'em under oath. Let’s take the deposition of these reporters and we will find out if their reports are true, and while we are at it, let’s also depose the prosecutors and see if, under oath, they deny the leaks.”

I thought the US Attorney from Maryland would escalate through the ceiling of the judge's chambers. He and his colleagues went berserk at such an outrageous proposal. That had NEVER been done before, there was no provision in any statute or rule that provided for that remedy, blah, blah, blah, etc, etc. I loved that scene. Still do.

Judge Hoffman was unmoved by the apoplectic nature of the government's response. He calmly told us,  “First , if you did that, it would need to be limited in scope. Can’t take too much time and delay the government's efforts. Second, I would have to consider the details of precisely what kind of order to enter, and that would take some time so I dunno.”  Bingo! A softball, right down the center of the plate: “No problem, Your Honor. In preparation for this meeting we drafted an order for your signature. We’ll depose a limited number of reporters first, and then six prosecutors, all to be promptly designated by us .” I reached into my briefcase, pulled out several copies of a draft order, distributed them to the Judge and the prosecutors, and while the latter sputtered, bellowed, stamped their feet, and got red in the face, Judge Hoffman serenely looked over the draft, nodded, took out his pen, signed the document,and gave it back to us for filing!

As you might expect, the prosecutors were not the only ones enraged by Judge Hoffman's order. We had stuck a pointed stick in the eye of the Fifth Estate, and the First Amendment Bar shifted into warp gear. Outrage! Beyond belief! Unprecedented! Trashing the Constitution! The end of the Republic! A bombardment of motions to quash the reporters' subpoenas rained in on us. This was a desecration of the Holy Temple: We were going to ask reporters if they told the truth in their published reports! Hard to get more outrageous than that, right? To hear them tell it, James Madison was spinning in his grave.

The reporters who received our subpoenas publicly vowed to go to jail before testifying, and they fashioned lapel buttons “Free the Agnew Ten.” Now here’s a delicious secret never before revealed: In the midst of all the chaos, a young reporter who is now a prominent journalist (whom I shall not identify) called me up and this conversation ensued:

He: Marty, you have got me in a lot of trouble with my boss. I am in deep shit here.

Me: Why?

He: You did not give me a subpoena and my boss wants to know why everybody else has government sources and I do not.

Me: Look, I apologize, but we sent subpoenas only to reporters who published articles saying they had received confidential information from government sources.

He: I did that! I did that!

Me: No problem. Send me a copy of your article and I promise to send you a subpoena.

He did, and I did, and so the “Agnew Ten” became the “Agnew Eleven.”

And while this circus was playing out in public, we were in backrooms negotiating a way out of this for our client and for the government. A deal was struck: the Vice-President would plead nolo to one tax count, no jail, a fine, and resign his office. The agreement was a tightly kept secret and the Judge publicly scheduled a court date for a few days hence, without specifying the purpose of the hearing. 

When we arrived in the courtroom that morning, we found the two large lawyers’ tables in the well were occupied with so-called "First Amendment Lawyers” whose combined blood pressure would probably have caused mercury to spill on the floors of the emergency rooms of the nearest two hospitals. The titans had come that day to argue their motions to quash the subpoenas and avoid the defilement of the Constitution.  But then the courtroom deputy came over and shooed them back behind the rail, into the already overflowing spectator section, and we were on the flash point of an insurrection. But the angry buzz was instantly stifled when they identified the new players arriving to occupy those tables: The Vice-President of the United States, Spiro Agnew, accompanied by his lawyers, and at the other table, Attorney General of the United States, Elliot Richardson, attended by his armada of prosecutors.

The scripted proceedings went as planned, and 40 minutes later we departed the building accompanying our client, the former Vice-President of the United States.

Shelly, I don't really wish you well, but if you get off, ya owe me.

A bientot!

06 February 2015

A St. Barths pastiche

​Is all of St. Barths talking about the latest "gate", i.e., "Conflationgate"? You know, Brian Williams, our favorite anchor, getting caught with his conflations down when he said that in 2003 he was in a helicoptor that got shot down in Iraq.  He and his network repeated the story again and again, and last week he did a big number on his news show about going to a Ranger game with a vet who protected Williams and his news crew after the shoot-down landing. That was the straw that broke the camel's back, and a flight engineer on the helicopter that did get shot down said, on Facebook, something like, "Dude, I was on the helicoptor that was shot down, you were not. You landed in the area an hour later, but your ship never took any fire.") Stars and Stripes picked it up and ran an article exposing the false claim, and Williams apologized on his show, blaming the fog of war for his "conflation". After all, all those helicoptors look alike, right?  Easy to conflate getting shot down with not getting shot down, right?  After all Hillary Clinton, (before her concussion) once conflated departing an aircraft in Bosnia under sniper fire, with departing an aircraft and shaking hands with local children and dignitaries on the tarmac. And "Rev" Al Sharpton once conflated Tawana Brawley being raped and put in a garbage bag with dog poop, with a young girl who made it up, looking for an excuse for not doing her homework.  Conflation, like measles, is catching.  Especially, it seems, for people who work at NBC and its affiliate MSNBC. Maybe they oughta spray the halls there? Truth serum come in aerosol cans?

Back to the first line. The answer: NO. All of St. Barths is not talking about conflation. But they are talking, and the following segment is one the topics of coversation.


It seems that the local gov, perhaps under instruction from the motherland, has passed a wheelchair-ramp ordinance. Sounds okay, right? Hah.  This island is basically a series of rock cones resulting from volcanic eruptions tens of thousands of years ago, (unless you are Huckabee followers, in which case it was just a couple of thousand years ago), and so, with few exceptions, all buildings are basically clinging via suction cups to the walls of steep hills. The roadways and driveways? Fuhgeddiboudit. Some of them cannot be surmounted by two-wheel drive cars when the road is wet. Being pushed up or down a St. Barths hill or driveway in a wheelchair would life threatening. Absurd.  However ... .

Now, let me confess something.  Many, many years ago, I saw a movie starring the actor Richard Widmark, in which he played the quintessential bad guy.The movie was "Kiss of Death", and Widmark's performance is historic. While the plot line has long since escaped me, and though I have trouble from time to time remembering the names of my grandchildren, there is one scene in that movie that is so chilling it is indelible. I will never forget it, and I insist on sharing it with you.

(tech note: at press time, I have not yet figured out how to get you back to the blog automatically. So after you watch the clip, close out Youtube and go back to the blog, where you pick up where you left off. Apologize for the clutziness. Bear with me, it's worth it, I promise!)

Here is the setting: Widmark is out to get the guy who squealed on him. He visits the rat's home, finds his mother alone there, and she unsuccessfully lies about her son's whereabouts. Watch what happens over the next 1 minute and forty-four seconds:

Now see the connection in my twisted brain to wheelchairs?

Back to the St. Barths wheelchair ordinance and its relationship to the Widmark clip: Flammands beach is a three minute ride from our house, and relatively uncrowded.  Access to the beach is via a short public walkway between two thirty million euro beachfront homes.  For many years, when one reached the beach-end to the walkway, there was a rickety set of super-steep wooden steps to the sand. Doable, but pathetic, given the hype about this super-glam playground for the super-rich. But ahh, this access-way was not for the super-rich, but for the hoi-polloi, the civilians, the locals, i.e., the Londons. 

Relief was to come: Along came the wheelchair ordinance and the government assigned a crack team of engineers and craftmen to design and build an improved staircase, and, more importantly, a wheelchair ramp to the sand.  (Who would want to put a wheelchair on the sand, you ask?  Don't ask.)

So here is what the new construction looks like from the top:

Beautiful, huh?  Though you can't see em, there are even lights embedded along the way. Take that richies. Score one for us little people.

And here is what the wheelchair ramp looks like from the bottom:

Ahh, the ramp is a Widmark design!  

A bientot.