Black Cards

I had not planned on talking more about this issue but after being asked some really interesting questions I couldn’t stop thinking about it. It gets so complicated. The best question was whether it is EVER possible to “play the race card”? Of course it is. The problem is that for every time someone “plays the race card” you have twenty people accusing them of playing the race card without justification. Which is the entire problem. Quite frankly, I personally believe that most people who accuse someone of playing the race card are probably racist at some level, if not overtly, then subconsciously. At the very least, they do not have a very nuanced worldview.

However, since playing the race card has come to mean falsely accusing someone of being a racist, then saying someone is “playing the race card” when they are calling an actual racist a racist is to falsely accuse someone of falsely accusing someone of being racist. Everything turns into this crazy fuzzy pretzel logic where you have people falsely accusing people of falsely accusing people of things, which ties in nicely with my experience practicing criminal law, since that is the world I live in every day. False accusations. Or not, as the case may be.

Playing the race card did not always mean simply falsely accusing someone of being a racist. This goes to another question that was asked, about the use of the word “thug” when describing Richard Sherman, and the origins of that word, which is where this whole race card issue suddenly appeared on this blog. Although thug may have originally meant “white gangster” when it was used back in the 1940’s, words and phrases evolve and change meaning over time. Otherwise we would all be running around grunting like cave men (not just the trolls.) More on that in a bit.

As for “race card”, I remember exactly when I first heard someone use the term, who said it, and why. It was Robert Shapiro, one of O.J. Simpson’s so called criminal defense attorneys. “So called” because anyone who talks out of school about his representation like that should be disbarred in my opinion. Confidentiality anyone? It was just plain wrong for him to go public with his opinions about the defense work he was personally involved in, regardless of his reasons, so long as no one was violating ethical rules or committing a crime like perjury or fraud, in which case he would have been ethically obligated to talk. But here he was just calling out strategies. Wrong.

Shapiro took issue with the way Johnnie Cochran was using race to try to win the case. (Full disclosure: Shortly after the trial, Cochran’s law firm contracted with me to be their “Dream Team” representative in the State of Washington. Although I no longer work with them, I still carry around my business card with my name under his firm logo. It makes an interesting conversation piece.)


Funny thing though. Shapiro was partially saying it was wrong to call out Detective Mark Fuhrman, a lead investigator on the case for the LAPD, for using the N word in conversation. I guess Shapiro was cool with the main dude who was trying to kill his client lying under oath at trial when he testified that he never used that word.

But what Shapiro was really calling them out for was using race at all to their advantage. Like Cochran’s famous purple suit, or appealing directly to black jurors or having venue changed to downtown LA to avoid an all white jury (with which the DA agreed, by the way). I disagree. I think they were doing something I like to call “Good Work Representing their Client Zealously”, something Shapiro apparently doesn’t know much about. I think Shapiro was just jealous that Cochran stole the limelight and won the case.

White people all know about playing the race card. They tell jokes about it. Like seeing a young African American driver cutting off everyone on the highway, careening wildly around, endangering every living soul out there. They say stuff like “Bet if he gets pulled over he will say, ‘Is it because I’m black?!?’” And everyone laughs hysterically. Do not tell me that you have never heard something like that, white people. I know you have. And that is the problem. This is not a laughing matter. Especially if you are black. Which brings me full circle back to where this entire discussion began, at least on this blog, with Richard Sherman and the use of the word ‘thug’ to describe him after his little tantrum following the Seahawks NFC Championship game against the ‘Forty Whiners’ back in 2014.

The commenter on my blog thought it was ignorant for me to say that using the word ‘thug’ to describe Sherman was code for the N word. The commenter said that in the 40’s ‘thug’ meant white gangster. I pointed out that words change over time and the current use of the word thug derives from a Tupac song that came out half a century after the 40’s called “Thug Life” and that now it is used to describe disaffected black youth… not to mention that calling Sherman a gangster was no better than calling him the N word, possibly worse. I resisted pointing out that not understanding basic etymology is in and of itself pretty ignorant.

And ignorance is really the issue here. Ignorance about race and racism and what it is like to be the other person. Which is where I will leave it. Our society has a problem, not a new problem but a problem nevertheless. We have become so divided and stratified and politically segregated that no one even tries to understand anyone else. I see it every day in my work. My job is to try to explain to righteous prosecutors and biased judges and naïve jurors how things might be seen differently by two different people, no matter how minor or major the disagreement might be.

It might be just a simple misunderstanding. Two people walking down the street might look at each other, one person thinking, “Why is that guy glaring at me? What is his problem? What a goober!” And the other person might be thinking “Gosh, that guy looks just like my Uncle.” See? If they had taken the time to try to understand each other they might have discovered that they were distant relatives.

Because we are all distant relatives, no matter what our differences are. We are all human beings. It is about time we put down the pat phrases and cute comments and cutting criticisms and spend five minutes trying to understand one another. IS that such a huge chore? And even if it is, isn’t it worth the work? Or would you all rather just run around all day and hate each other?

So, white people, next time someone says someone is a racist, before screaming “race card” try to see their point of view, if only for a second. Pretend you are the other person and try to see how they feel. And, African Americans or Hispanics or Native Americans or Asian Americans, when someone is giving you a hard time, before you automatically assume they are racist (hard I know, since so many people are) try to see why they are saying bad things. Maybe it really is your bad driving or whatever. Easy for me to say, I know. I’m white. Which is why I know that I have to be very careful before I jump to conclusions about anyone based on their race. I mean, just because I am white it does not make me a racist. And just because someone isn’t it does not mean that they are falsely playing the race card. Especially when they are not.


Since I am relatively new to this whole blogging thing I am still learning. I have a lot to learn. For example, until recently I thought trolls were only something you found in scary fairy tales. But I am getting lots of random nasty comments from sad people with nothing to do all day other than spew venom online. I don’t have time for that type of thing. I am way too busy working my tail off trying to help people solve their legal problems, being a good father and husband, shopping for groceries and cooking and cleaning and everything else it takes to lead a productive successful life. And, occasionally, having a little fun doing this stuff. But spew at people I don’t know? Why on earth would I ever want to do that? I have a life. So, I don’t.

That said… heh heh… although they are called trolls I think they should be called Neanderthals. Cave men. That’s because they must be living in caves to think some of the things they think. And to have time to do what they do. I mean, I have a view to keep me occupied.

In particular these cave dwellers like to say things like: “Way to play the Race Card!” Hmm. I always have to scratch my head when I hear people talk about the “Race Card”. I am not sure what they mean. Do they mean that I notice people are different races? Notice that sometimes people of one race don’t like people of another race? Notice that sometimes that causes problems for our society? Or is it just that I refuse to pretend that race is not an issue in modern America? Because, believe you me, racism is alive and well in America today. And if you don’t see that you must be living in a cave.

You may well ask what does this have to do with criminal law? And, if you are a cave dweller that might be understandable. You probably don’t get out much. But if you did, or if you had a TV or internet access, you would see gazillions of examples of it every day. You could even read my blogs where I have talked about it in specific cases, like Baltimore or Richard Sherman.

Why are things this way? I don’t know. As usual. I see the way things are, but I don’t automatically know why things are the way they are.

But it bothers me.

A good friend of mine, Jeff Robinson, whom I have mentioned before, is an expert on this issue. That’s because he is black. And, like Obama, he is a Harvard Lawyer. Jeff can’t help the fact that he didn’t go to Stanford Law, so I will let that go. Still, he is a fantastic lawyer and keen observer of the world around him. He likes to say that he has no idea what white people talk about when they get together because he has never been and never will be in a room full of white people. After all, if he is in the room, there’s a black guy there. So not a room full of white people. Simplistic maybe, but it makes his point.

He also talks about times, which I have also mentioned before, when he was at Harvard and driving through areas of Boston late at night with some classmates when the white driver was pulled over for something. Since it is Harvard he was often the only black guy in the car. More than once the cops pulled Jeff out of the car to frisk him and shake him down a bit, wondering what a black guy like him was doing with respectable people like these. And trust me, Jeff is one of the classiest most intelligent and eminently respectable people I know. I respect the heck out of him. And so does the ACLU, which just appointed him to head up their Center for Justice, headquartered back in New York. I am so happy for that, but a bit sad that I won’t be seeing him around to get some needed insight on the occasional case we may have shared (like a major international smuggling conspiracy we once worked on). He’s a gem.

I know I may be rambling so let me try to explain this in a way that you can understand, especially if you are busy getting ready to sketch some pretty line drawings of antelope on your cave walls. I was picking a jury once in Island County. My client was Mexican. I had NO intention of making a big deal about that. However, our defense was mistaken identity. They had the wrong Mexican in other words.

In most cases, during jury selection, I try to find out how inherently biased prospective jurors might be against any criminal defendant by asking this question:  “When you first walked in here and heard what the charges were and looked over at me and my client, what did you think?” I ask that no matter what my client looks like. It is not about that. It is an attempt to get them to answer honestly and say what they were really thinking. Which is generally, “I thought he was guilty.” Or “I was wondering how a nice guy like you could represent a scumbag like that.” Or even one time, when I had an especially presentable client, “I thought you were the client and your client was your lawyer.” Ouch, that stung. But I was able to use that one to help dig into the need to presume people innocent and not make snap judgments since they can be wrong. Very wrong.

In this case I had a Mexican accused of, among about a million other things, what most people would call Armed Robbery (actually Robbery First Degree with Firearm Enhancement).

One man put his hand up and said, “I was thinking that he looked exactly like a thug who robbed me at knifepoint when I was walking through Mexico City one night.” OOPS.  Now I’ve got a problem, I thought. Although I had been determined not to play the “race card”, whatever that is, now I had no choice. So we began talking about it. About how they might feel if they were sitting in a courtroom in Mexico City, falsely accused of a crime they did not commit, facing a jury composed entirely of Mexicans, and one of the jurors said that they looked just like some Gringo that had robbed them when they were visiting their cousin in Chicago last year. Would they be at all concerned about getting a fair trial? (You might ask yourself the same question.)

Just then a woman in the back row put up her hand. “Excuse me,” she said. I hate losing control of the room like that, but hey, I couldn’t exactly ignore her.

“Yes?” I inquired.

“Well, I just want to say that I resent what you are doing up there.”

“Uh… excuse me? Do you mean asking these questions or…?”

She cut me off: “PLAYING THE RACE CARD!” A bunch of the other jurors nodded their heads in agreement and murmured approval at this wise observation. It must have been get out of your cave free day.

I’ll admit it. I pride myself on never letting this happen, but for a moment I was flummoxed. I mean, did she not see what the guy had just said about being robbed by someone who looked just like my client, who was accused of Robbery for crying out loud, and not see how that might be cause for concern? So I asked her that. But try as I might I could not get her, nor most of the rest of them for that matter, to stop repeating that stupid phrase, apparently incapable of seeing what was happening there right in front of their eyes.

So, that experience may have colored (pun intended) my view somewhat. Because whenever I hear someone utter the phrase “Race Card” I remember that woman. Unable to process the obvious problem happening right there in that courtroom, the way my client’s right to a fair trial was being denied by the negative perception of his race, actually being a potential juror responsible for deciding the poor guy’s fate, yet unable to do anything more than repeat a cute phrase that was completely irrelevant to what was actually going on. And that is what I think of the Race Card. It is a meaningless phrase uttered by people who refuse to see what is happening right in front of them, preferring to regurgitate clichés rather than do the hard work involved in making our society fair and accessible to all.

Oh, and trolls, before you all go nuts, I know it was more the Cro Magnon than Neanderthals who lived in caves. I just like the sound of it better.


Well I guess I was wrong about the jury in the Tsarnaev case. Sounding a bit facetious (but not really) I did not expect them to play so willingly into the Tsarnaev brothers’ murderous hands. Nor show such mercy. To some of you doing that may not make much sense (and I would have to assume that most of you would be defense lawyers like me.)  For the rest of you, read on.

Taking that second point first, since it is so much easier to explain, let’s begin with what it really feels like to be locked up in U.S. Federal Detention. I know. I have been there. No, not because I’ve been in trouble. It’s because I have been inside the “Belly of the Beast” visiting clients when there was some minor security breach and the entire facility, lawyers, visitors, and everyone else under the sun, are all “LOCKED DOWN“, and ordered to stay precisely where we were until the dust settled. It’s no fun. Really NO FUN.

When that has happened to me I have been sitting in a cavernous visiting room at the Federal Detention Center at Seatac, where federal prisoners for the Seattle and Tacoma Federal Courts are detained, most of them still presumed innocent and awaiting trial. Compared to what Tsarnaev would be facing with life in prison it is like a Sunday afternoon picnicking in Central Park. The room is not only huge, but as a lawyer I am relatively free to roam around it, chatting with other locked down lawyers, bemoaning our sad temporary fates, as natural sunlight streams through the (granted) slit windows, normally having relatively free access to our computers, able to stretch out a bit in the 5000 or so square feet of open floor space.

The worst time was when I was in there without a computer, with only a few pieces of paper in hand. It was a brief visit to review some last minute paperwork that the US Attorneys’ Office had just emailed to me that I had to get my client to sign that same day. No need for my normal stack of files and laptop since it was merely a matter of read, approve and sign.

But just as I was emerging from my short meeting the alarm sounded. LOCK DOWN! Argh. Poor widdle me. There I was. Stuck for almost the next THREE HOURS!! Can you imagine? Moi? No paper, no pens, no computer. No TV or phone or magazines or books. Not even any other lawyers to chat with since it was 7:30 a.m. and I was the only one inside at the time. Even the guard couldn’t chat as he was busy doing guard type stuff. And, no offence to my client, but we were finished and he was my client, not my best friend.

So, there I sat. And sat. Slowly going mad. Staring at those walls, which were admittedly half a football field apart. Getting claustrophobic. Feeling trapped. Like a rat. Trying to think of word games in my head. It seems confinement, even in a large open space, even for only a few short hours (no matter how long they seemed), was virtually unbearable. I was beginning to wonder how to use one of my ball point pens to dig a hole out of there (just kidding BOP!) when the “all clear” sounded.

I have never been so happy to breathe fresh air in my life as I wandered outside into the crowded parking lot, jets screaming overhead as they landed at Seatac, spewing foul exhaust all over me. I took a deep breath and held it in, Richie Havens suddenly competing with Bob Marley singing songs of freedom in my head.

You think I exaggerate? Try it sometime. Now multiply that by about a million. As in every second of every minute of every hour of every day of every month of every year for THE REST OF YOUR LIFE! The entire time squeezed into a tiny little cell, all alone, no one to talk to, four walls a few feet apart, constantly closing in on you. You think that’s getting off lightly? Think again. After my three hours I was starting to wonder if it might be better to just try to slit my throat with that ballpoint. Not really, but another three years and I might have. Another thirty or fifty or seventy or however long that Tsarnaev kid is gonna live on in Supermax and I for sure would have. And, don’t fret; it’s the Feds, not State Prison. They’ll make sure to keep him alive. The Death Chamber would start to look like the Promised Land if that was my future. I mean, by comparison to a quick exit, life in prison would be real punishment. Misery for eternity. Instead the jury elected to put him out of his misery. Relatively quickly by comparison. Or not, perhaps –which brings us back to the first point.

You see, by sentencing Tsarnaev to Death they have kept his cause alive. And the cause of his older brother, the one who planned it all and dragged his little bro’ along for the ride after filling him with hate and propaganda. To live on beyond either of them. The whole point of this insane murder spree by the Tsarnaevs was to draw attention to their “cause”. Lock up Dzhokhar for life, and trust me, he’s gone. I mean how often do we hear about Robert Kennedy’s killer, what’s his name, or even Charles Manson? Granted, every decade or so Big Media runs around, wringing their collective hands over the possibility that Manson might get paroled, even though we all know there is a snowball’s chance of that ever happening. But since he is famous and there are movies and Roman Polanski to keep reminding us, Manson helps sell aftershave and reverse mortgages. Henry Winkler must love the guy.

And those criminals have been in relatively liberal California prisons. Tsarnaev will be with Ted Kaczynski in Supermax. When is the last time you ever read one of his Unabomber screeds? Not to mention Zakarias Moussaoui, one of the 911 terrorists, who is only serving life in prison, not sentenced to Death. How does that work? He ranted and raved during his entire trial, cursing everyone in court to eternal damnation. And still he lives.

Life inside? Bye bye. Bye bye Jihadist cause. Bye bye notoriety. And above all else, BYE BYE MARTYRDOM. Because that is perhaps the worst aspect of this. This jury, although I totally understand their decision and it would be wrong to disparage them for just doing their jobs as they saw fit, are creating a hero. It was the Government’s mistake, not theirs.

I may be wrong, but as far as I know this will be the first “Jihadist” that our criminal justice system is going to kill. I am not including the drone strikes and helicopter raids to take out the Bin Laden types. I mean, from the Jihadi perspective, a slow, deliberate, VERY PUBLIC, mission by the United States Government to murder one of “their own”.  Trust me.  They are gonna be ululating in the streets over this one. And of that prediction I am supremely confident. It is not if, but when.

And, therein lies the problem. We are blowing this up. The appeals and idiot pundit coverage and constant reminders of this heinous crime will live on and on and on, even after we kill this kid. We just made him a superstar in the eyes of the entire radical whatever-you-want-to-call-it world. (I don’t like to say Muslim since the vast majority of them totally reject this madness.)

Perhaps the aspect of this that bothers me the most involves the parents of that poor innocent little boy, Martin Richard, who was right there in front of the bomb that Tsarnaev placed on the street that day.  His parents stated in a compelling plea to the Government that they did not want the death penalty for Tsarnaev. That should have been given at least as much weight as the Government’s ongoing (and totally understandable) argument that the murder of the little boy justified the Death Penalty. And this is where I just might have a solution.

Years ago it occurred to me that the best way to fix this whole death penalty mess would be to get the Government out of the business. Instead why not create a defense to murder that would allow family members to get into a ring with the bad guys and beat them slowly to death? I mean if anyone had hurt my kids growing up I would have given my right arm for a chance to do that. Why not let the relatives do the dirty work? Let them kill the guy. It would make more sense. And even the radicals would be able to accept that perhaps.

I make that suggestion (sort of) as I began this. Facetiously. But only partially. If that idea makes you recoil in horror at the thought of creating a gruesome scenario where people are murdering other people with government approval, think again. Because that is precisely what we are doing when we sentence someone to death. Except the Government, with no personal investment really, is doing the deed. How can that possibly be more morally correct? Ask yourself that.



[Or….  Enough About Police Brutality Already; Let’s Talk about Something Really Controversial:  Parenting!]

Free Range Chicken is a good thing right? We all know that the more “free” things are the better they are. To eat, at least. Even Eric Holder is in on the being free movement, proclaiming his new-found freedom now that Loretta Lynch is finally the Attorney General. But seriously, what gives? It is just so ironic that some of the same people who insist on having all things roam free and be devoid of giant corporate controls are the same folks who shudder to think about the idea that actual people, children no less, might be better off that way too.

I’m not talking necessarily about the Nanny State, although that is part of the issue now that they are getting involved in this. I am talking about Nanny Parents. The ones who drive their kids everywhere, scheduling them out to the max, never allowing them a spare moment to think or do anything for themselves, making sure that they are protected from the world, unable to find out anything for themselves. And thus unable to learn and grow and develop in the same way that most of us did; following mindlessly along from Soccer practice to cello lessons to college prep classes. All when they are five. It’s ridiculous.

When I was a kid we got to roam freely. Nobody had ever heard of free range anything, unless it was where the deer and the antelope roamed. Good grief. When I was three I would head out of the house first thing in the morning, with our without my ancient sisters, aged 8 and 11, practically grown ups and almost out on their own by then.  We ran in a pack, just like kids all over the world. Go to Bali. They are roaming freely. And they are smiling. And laughing. And playing.

I went to an exhibit about Leonardo da Vinci several years ago, at the Seattle Art Museum. They had a display all about how Leonardo had become Leonardo. It was fascinating; he didn’t sit at a desk and study how to become a genius. No. He ran wild in the woods, observing nature and the physics of running water first hand, and in so doing he gained an understanding and appreciation for the physical world that led to everything from invention of the first helicopter to painting the slyly smiling Mona Lisa.

The issue has come to national attention in the form of a Nanny State case and a viral video. The case was about a Silver Spring, Maryland couple, Danielle and Alexander Meitiv, who had the audacity to allow their kids, a six year old daughter accompanied by her ten year old brother, to actually walk home from school alone together. Heaven forbid. But, they were wrong to be so trusting, because on the way home the kids were actually abducted and held prisoner for hours. By the POLICE.

You see some concerned citizen apparently called 911 at the horrific sight of children walking down a street minding their own business… without a helicopter parent on hand. I wonder how Leo would have processed that? Not sure he had that in mind when he invented the first chopper.

But, as always in legal matters, there are two sides to this issue: on the side of the Meitivs we have a growing national movement called Free Range Kids, led by another concerned parent, Lenore Skenazy, who believes that we have all become so overprotective we are denying our kids the sort of upbringing most of us had, the kind I had. Last Saturday she spearheaded a child abuse event called, Leave Your Kids at the Park Day.

All of this wild irresponsible abandonment led one YouTube dude to lead the bull by the horns and go out and abduct him some kids his own self. What a guy! He proceeded to randomly cruise parks to pretend to abduct young children. I guess he wants to establish “Go To the Park and Scare the Crap Out of Kids Day!”

But this is where it gets confusing.  You see he was successful at abducting the kids he tempted with tales of puppies waiting for them to go pet if they would only come with him. Fortunately he had the common sense to check in with their parents first to get permission to pull this prank. Otherwise he would be sitting in jail looking for my number right now.

Of course after listening to him on NPR, I was thinking he’d better make that phone call lickety split. That’s because he was saying some incredibly stupid things, like “There were only three of them that I attempted to “abduct” and those are the three you see in the video. In between filming some scenes, groups of kids would actually run up to me to pet the puppy. I wanted to try the experiment on those kids, but I didn’t see their parents around, so I didn’t do it because I didn’t want to get in trouble. But I could have easily abducted even more.” YouTube Dude, Please Note:  That statement constitutes probable cause to arrest you for attempted Kidnapping. You have a right to remain silent. And a right not to be so creepy.

He also revealed some very sloppy research, admitting that his claim that “700 kids are abducted a day” was based on a two second Google search and that the actual number is way lower. But, of course, that doesn’t stop some Mainstream Media outlets from blasting it all over the place.

Still, he has a point. A very disturbing point. These kids were extremely gullible and naïve.

Lenore Skenazy, the Free Range Mom, was quick to weigh in, talking about how he is scaring parents into forcing their kids to hide inside and never be free to just “go outside and play”. Like Leonardo did. Back when rapists and murderers roamed freely.  She also argues that crime rates are down. Much lower than they were when we were ALL free range kids. So, where’s the fire?

To be honest, the whole thing baffles me. I just don’t know what to think. I admit we were overprotective parents ourselves, and I worry that our kids, while successful and independent fine young adults, thankfully – might lean on us more than we did on our parents. But I am not sure that is a bad thing. As always I am confused.

Which is why I invite you to comment on this post. Maybe we can work this one out together. At least the cops didn’t shoot anyone this time.

Seahawks at Redskins 10/6/14

Huh?  Let me explain.

I love Richard Sherman. He’s a kind of a hero to me.

I’m standing in the Oak Harbor Walmart, the only place to buy Seahawks t-shirts on Whidbey Island. There are three choices: Marshawn Lynch, The Beast, that Caterpillar bulldozer of strength, calling my name. Russell Wilson, Mr. Perfect, and who can argue with that? And then there’s Sherman. The loud-mouthed Stanford guy who speaks his mind and speaks the truth as he sees it and consequences be damned… especially when they take the form of racist idiots who just don’t get that a kid from Compton might actually be smart enough to graduate from the best University in the World, and even manage to earn his Masters Degree while still playing college ball. My kinda guy. I grab a #25 and head for the check out stand.

‘Sherm’ was universally reviled when he dared to show some emotion after playing a key role in Seattle’s huge victory in the NFC Championship over San Francisco a year ago, when he deflected a last second potentially game winning pass, before the Seahawks went on to trounce Denver 43-8 in the Superbowl.

But unfortunately, during the two weeks leading up to that shellacking, Big Media was falling all over itself attacking Sherman for daring to act like a … uh… football player, following that playoff game against the 9’ers. The main word used to describe Sherman back then was “thug”, a term he saw as a thinly veiled synonym for the “N Word”.

Which of course led the pundits to make matters worse by seizing on his unfair characterization of their fair and balanced critique of his arrogant audacity.

And there he was again before this year’s Superbowl, being arrogant… and correct… as usual. Saying that everyone does not know what he knows: that the Patriots’ Tom Brady is not the choir boy he is made out to be, not necessarily deserving of his media-darling status; that maybe there is a less acceptable side to him that you only see when you are out there on the field together.

How dare he? What or Who does he think he is? Some kind of Superstar?? Oh wait. He IS. Nevermind that he was speaking respectfully and intelligently and calmly, stating what he sincerely believed was true. Apparently the authors of the recently released NFL report that details how Brady cheated to help him win this year’s AFC play off game to get into the Superbowl agree with Sherman. It’s just that Sherman isn’t a pretty boy like Brady, married to his cover girl supermodel. No, Richard has dreadlocks and Compton swagger. Clearly a threat to all those athlete wanna be’s out there in the media.

In the extremely thorough and very scientific report prepared by one of the top law firms in the country (which you can read for yourself online), the authors concluded that, “based on an analysis of the substantial and credible evidence” available to them (pg.126), that Brady’s claim that he did not know about the deflated balls was “not plausible and contradicted by other evidence” (pg 129). Significantly, they pointed out that their available evidence was limited because of “Brady’s refusal to provide us with his own emails, text messages and phone records on relevant topics, in response to our narrowly tailored requests” (page 130). That’s right. I lawyered up on this a bit. I take this kind of cheating very seriously.

So what is bothering me so much? It’s this: Sherman is a fantastic football player. He is also an excellent student of the game, intelligent, articulate and informed. But he is still treated like some sort of pariah by most of the Sports reporters, at least like a class clown that they can make fun of.

But that’s just wrong. He deserves our respect, not our condescension. Which brings me to where we are today: now the pundits are falling all over themselves to say that “Deflate-gate” is nothing but a bunch of hot air.  That it made no difference because the Patriots blew out the Colts in that play off game after the deflated balls were properly inflated at half time. To me that is like saying it is OK to point a gun at someone for no reason, so long as you don’t actually shoot it. It’s not about the point spread, stupid. It’s about the cheating and lying.

Anticipating a possible 6-8 game suspension, they are even saying how unfair it all is. How the NFL Commissioner Roger Godell took so much longer to go after Ray Rice for domestic violence. It does not seem to dawn on them that Brady’s conduct was not some off field alleged criminal activity, where the presumption of innocence and the notion of proof beyond a reasonable doubt apply. It was part and parcel of Brady’s attempt to rig a game! Even Pete Rose, that Major League Public Enemy Number One of Baseball, was just gambling – not rigging games.

In a masterpiece of unbelievably clueless and biased reporting in the New York Daily News, Gary Myers said the following: “Brady and Peyton Manning together have been the faces of the league for more than a decade, and this is not at all like Goodell having to suspend miscreants such as Rice, Adrian Peterson and Greg Hardy for various degrees of domestic violence. This is Brady, a four-time Super Bowl champion, three-time Super Bowl MVP, husband to the world’s most famous supermodel and, at least to this point, everything Goodell wanted representing the NFL shield.”

WOW. Thanks for making my point for me, Gare. Good grief. Can that guy even look at himself in the mirror after pronouncing claptrap edicts like that? I give up. Except I refuse to. I am compelled to call it like I see it. Like Sherman. And never give up. Like the Seahawks. Because you see, they can talk all they want. We will be ready for them this year.

See you next February 7th, everybody!

Oh, and just think: the Colts, the ones Brady cheated against to help him get into the Superbowl, used to be from… get ready for it… Baltimore. Can you imagine?



It is not always crystal clear what causes things like riots to get out of control.  One politician even blamed gay marriage for what has been happening in Baltimore recently(!) I try to be open minded about other people’s opinions, but seriously?

A more serious claim made by both teachers and parents, is that the riots last Monday were caused in large part by overly aggressive police who were determined to stop a riot that was not happening, thereby creating one. They state that heavily armed police prevented students from leaving school as they usually do, by shutting down their school buses, thus forcing the kids out onto the streets, where random groups of typical teenagers were then harassed by those same police because they were gathering precisely where the police had forced them to gather. Quite a claim.  And one which should be looked into more closely.

What is clear is that something bad happened.  A whole lot of people were out there doing a whole lot of damage, committing a bunch of major felonies, who seemed to be enjoying acting badly on national TV. But notwithstanding that this out of control behavior was wrong and bad and criminal, we are still left with the nagging question of exactly why they are so upset?

They may have been upset about the “Nerd Prom”, a formal event held in Washington D.C. within a short drive from Baltimore, where all the power players were so busy slapping each other on their backs for being so much better than ordinary people that they were unable to consider how that might look to the rest of us. Jon Stewart was upset about that. I was too. The idea of all of the Nero pundits fiddling while Baltimore burned was at least unseemly. At most it was the best example of how the arrogant elite in this country are completely out of touch with reality. That is not a political statement. It is a fact.

Although many think of the stuff going down in Baltimore right now is a recent development, the roots of this problem go way back.

Whenever I think of Baltimore I hear Randy Newman singing in my ear….

“Beat-up little seagull
On a marble stair
Tryin’ to find the ocean
Lookin’ everywhere

Hard times in the city
In a hard town by the sea
Ain’t nowhere to run to
There ain’t nothin’ here for free

Hooker on the corner
Waitin’ for a train
Drunk lyin’ on the sidewalk
Sleepin’ in the rain

And they hide their faces
And they hide their eyes
‘Cause the city’s dyin’
And they don’t know why

Oh, Baltimore
Man, it’s hard just to live……….”

That song came out in 1977.  So, do you still think this is a new problem?  I think not.

One aspect of the discussion about what is going on in Baltimore that I find especially intriguing is the link between the dissatisfaction of the local community with their lot in life, especially where the police are involved, and the War On Drugs. Ironically, that War on Drugs began not long before this song was written, in June of 1971, when Richard Nixon announced the “War on Drugs”, his plan to dramatically increase the size and presence of federal drug control agencies, and to push through measures such as mandatory sentencing and no-knock warrants. What on earth does that have to do with people being unhappy?

Easy. For you see the greatest impact of the War on Drugs beginning back in the 70’s was not on upper middle class white kids from the suburbs, smoking weed in their basements while listening to their high end “record players”, waiting to head back to their high priced private colleges to protest the Viet Nam War. Meanwhile kids in the ghetto were being harassed, searched, arrested and imprisoned with impunity. Or, of course, being sent off to Viet Nam to fight that war the white kids were so eager to avoid.

Here are some interesting facts about the impact of the War on Drugs:

  • More than 60% of people in prison in the U.S. are now racial and ethnic minorities.
  • 1 in every 10 African American male is in prison or jail on any given day.
  • Two thirds of all persons in prison for drug offenses are people of color.

But for those of you thinking that this is because black people use drugs more or commit more drug crimes, think again.

According to the NAACP:

  • About 14 million Whites and only 2.6 million African Americans report using an illicit drug.
  • 5 times as many Whites and 2.6 million African Americans report using an illicit drug, yet African Americans are sent to prison for drug offenses at 10 times the rate of Whites.
  • African Americans represent 12% of the total population of drug users, but 38% of those arrested for drug offenses, and 59% of those in state prison for a drug offense.
  • African Americans serve virtually as much time in prison for a drug offense (58.7 months) as whites do for a violent offense (61.7 months).

There are many other disturbing statistics.  The fact is that the War on Drugs has essentially disenfranchised an entire segment of the population. The societal fall out is a primary impact of the policies and practices of law enforcement for the past few decades. For example, education statistics show how the door has been closing on opportunities for the disadvantaged.

In 2000 there were 791,600 black men in prison and 603,032 enrolled in college versus 1980, when there were 143,000 black men in prison and 463,700 enrolled in college.  During those two decades the War on Drugs raged on, making virtual enemies out of an entire segment of our population: the poor and disadvantaged who had nothing better to do or no other way to make a living besides being involved in drugs.

Of course we can say that it is their fault. But I call that blaming the victim. I mean, I worked hard, went to Stanford Law School, practically killed myself working 100 hour weeks as a public defender. But I don’t kid myself. I had two very positive role models, my Mom and Dad, lived in a peaceful prosperous community, went to great schools and had enough money to afford to go to the best law school in the country (sorry Harvard, but you know it’s true). But I don’t kid myself. If I had been born into poverty where drug dealers, not Caterpillar engineers, were the role models – I am nowhere near arrogant enough to think I still would be where I am today. I mean, I am conceited but there is a limit. I’m not stupid.

Reasonable people can argue about how to interpret statistics like these. I do that type of thing every day. But, at some point, you gotta throw up your hands in the air and say, “What’s Goin’ On?”  It makes me wanna holler sometimes………

What’s Goin’ On

Song by Marvin Gaye


Mother, mother

There’s too many of you crying

Brother, brother, brother

There’s far too many of you dying

You know we’ve got to find a way

To bring some lovin’ here today, eheh

Father, father

We don’t need to escalate

You see, war is not the answer

For only love can conquer hate

You know we’ve got to find a way

To bring some lovin’ here today, oh oh oh

Picket lines and picket signs

Don’t punish me with brutality

Talk to me, so you can see

Oh, what’s going on

What’s going on

Yeah, what’s going on

Ah, what’s going on

In the mean time

Right on, baby

Right on brother

Right on babe

Mother, mother, everybody thinks we’re wrong

Oh, but who are they to judge us

Simply ’cause our hair is long

Oh, you know we’ve got to find a way

To bring some understanding here today

Oh oh…


I’ve been watching the events in Baltimore over the past two weeks with fascination. And Horror. It’s like watching a Shakespearean drama unfold, only it’s real.

When I first heard the news about Freddie Gray dying in police custody I groaned out loud for several reasons, one of which was my totally selfish desire to be able to go one week without another death at the hands of the police forcing me to blog about it. So, I resisted. But I also hesitated because the facts were so bizarre. I listened to the usual suspects all over the airwaves, opining away, when it was obvious that it was going to take some very thorough investigation and analysis to get to the bottom of what occurred during Mr. Gray’s arrest and transport.

But as it began to unfold, I began to see that something was rotten in the City of Baltimore. The Passion Play that began to roll out was worthy of Hamlet. The ghost of Freddie Gray hovers above the action, trying to tell us about the foul way he passed to the other side. Not to be too poetic, given the tragic circumstances, but the way the initial investigation was handled reeks of foul play. There are so many different elements it is hard to know where to begin: cops covering up possible misconduct, crowds running amok, Big Media being a big part of the problem, a Major League Baseball Game in a deserted stadium, politicians rallying around as very positive role models, for a change, and a bright young daughter of (count ‘em) two police officers put in charge of the prosecution of six cops. Good grief. As so often happens in my profession, you just can’t make this stuff up.

Let’s begin, unfortunately, where we must: Police Misconduct and Death.

In the last blog I talked about how even innocent people can do stupid stuff like hiding evidence in the heat of the moment. But here we had six police officers, driving all over town for almost half an hour, making multiple stops to supposedly “adjust Mr. Gray’s restraints” while getting zero medical attention for him and then denying that one of the stops was ever made for an entire week. Until it was discovered on a private surveillance camera. That is no heat of the moment mistake – that looks like a cover up to me, complete with collusion between the six of them. So, there were bad facts from the outset.

Not to mention a clearly injured Mr. Gray being dragged into the back of the transport van, screaming in pain. Something is wrong with this picture. It’s not brain surgery people.

Then we had the riots. I agree with Obama. These kids are not protestors, they are thieves, burglars, vandals and arsonists. Little criminals. Period. There is no excuse. But there may be a reason that they are so outraged besides just wanting to commit crimes for the sake of it; something is bothering them that goes way beyond the death of Freddie Gray.

The role of the Media in all of this is pretty disturbing also. I listened in disbelief as Chris Cuomo lectured into the camera about how the protestors telling them to leave just “didn’t get it”, how the media was not the problem. Au contraire Mr. Cuomo. The media WAS the problem. It’s called the Heisenberg Principle (actually the “observer effect” but that’s being too academic, esp for Breaking Bad fans). This stands for the notion that simply by being there observing something you are changing the situation; in other words, turn on the camera and they will riot. It’s like felonious performance art. Without an audience most of these “little criminals” would be acting out much less, if at all. It reminds me of the TV News people in Seattle out on the streets predicting a blizzard that never materializes, desperately seeking close ups of snowflakes to broadcast.

Last night we walked through downtown Seattle on our way to a friend’s house for dinner. We took the bus because we wanted to avoid having our car torched by the predicted May Day rioters. The riots had not happened as predicted (although later on some things did occur, mostly white kids looking for action). As we passed the Federal Courthouse it was surrounded. Not by protestors, but by upset TV crews, smoking away, obviously unhappy that the predicted May Day riots had not materialized yet. I mean, they may have to go out and find some actual news to report on. Not so in Baltimore. They couldn’t get enough of the stuff. And in so doing, they became part of the problem – a big part if you ask me.

Don’t get me wrong. I believe in the First Amendment. Passionately. But that does not mean you hand someone a motive to misbehave just so you can tape it and sell ads to people who tune in to see your work. There is something sick and immoral about the media feeding frenzy that goes on at these things. It’s pathetic if you ask me. A bunch of grown gawkers salivating over destruction and violence just because they know it is a short cut to fame. And profits. Not right.

The Shakespearean hero coming to the rescue here appears to be Marilyn Mosby, the youngest major city prosecutor in the country, an African American woman whose mom and dad were both cops, not to mention half of the rest of her family. Good grief. Again, you just can’t make this stuff up. This does not mean I agree with her charging decision. Or disagree. I have not read the files so how could I possibly know? But I do agree that, having made the decision, with a minimum of dithering, she managed to change the situation for the better in sharp contrast to the news crews out there clamoring for more violence and destruction. And, I have to admit, that a manslaughter charge does not seem inherently out of line here. I mean, the idea that Freddie Gray broke his own back is a bit hard to swallow.

It could have happened. If he fell and hit his head just right, according to one of the experts, it could have been like a person falling in the bathroom and landing their chin on the side of the bathtub, thus hyperextending the spine and causing this type of injury. I have seen that in murder cases I have handled myself. So it is possible. I predict the defense will rely heavily on medical heavy hitters to convey this to the jury, but who knows what the defense might be? I don’t.

I do know that the constant leaks and speculation about what did or did not occur became a huge part of the problem, and again, it just smells bad. For example, the witness, Donta Allen who supposedly said that Mr. Gray was trying to hurt himself. I heard his interview and he said no such thing. Instead he said that all he could hear was bumping noises. The fact that the cops drove on, in their bizarre circular route, stopping only to tighten restraints, not seeking medical attention and not securing Mr. Gray with a seat belt as he bounced around back there like a balling ball is at least troublesome. In fact, it is completely irresponsible in my opinion. It will be for a jury to decide whether the facts warrant a finding of manslaughter for the driver, who was, after all, literally in the driver’s seat for all of this.

There are so many more aspects of this that merit comment. Representative Elijah Cummings was one of the few bright lights. I don’t believe he made it to Nerd Prom. He was too busy doing his job. Out on the streets, trying to calm the crowds, leading by example, being involved. Not focused on which poor woman was stuck being Wolf Blitzer’s prom date. Trying to do something good and productive.

And perhaps that is the most important lesson in all of this: it is time for a change. Not time for a political slogan about change, but real change. We need to examine the death of many of our formerly great cities, ravaged by crime and poverty and try to figure out what has gone so very wrong. Just look at my beloved former home, Chicago, now commonly called Chiraq because of the death and destruction on its streets.

I don’t have the answers. I’m just a lawyer. But collectively we all do. It is time to put down the stupid political infighting and come together to do some good for a change, to offer inner city youth a future besides either selling crack of making it big in the NBA. I’ve been working closely with the fallout of this problem for decades now, and I am sick of it. I would much rather see young people with a future worth saving, not just helping them avoid prison, but seeing them succeed. If you want to know who out there can help make this happen I have an idea. Look in the mirror.


Tampering with Evidence Makes You Guilty… of Tampering with Evidence, not Murder. This is, for now, the final installment of the sad saga of Officer Slager’s shooting of poor Mr. Walter Scott.  People are talking about how Slager must be guilty because he apparently planted the Taser next to Scott’s body. The one that he probably thought Mr. Scott had grabbed out of his hand, but which in fact had flown out behind Slager and hit the dirt after Scott appeared to grab it.

It seems that Slager picked up the Taser and dropped it next to Scott’s body. Looks very bad. But remember what I said in my prior post about how Slager might have believed that if Scott had grabbed his Taser it might create an argument that Slager was shooting him because he thought Scott was a fleeing felon who was armed and dangerous. I say might because it is not exactly an easy argument to make. However, that does not mean that his lawyer should just give up and not make the best argument he can for his client. That is the every decent criminal defense attorney’s job, like it or not.

Keeping in mind what I said about using the evidence (even bad evidence like Autopsy Reports) to work for you in some way to support your theory, ask yourself how on earth staging the Taser next to Scott’s body could possibly help support the “fleeing dangerous felon” defense.  Easy. It shows that Slager truly believed that if Scott had actually taken the Taser and run away with it he was justified in shooting Scott. I mean, why else place the gun next to the body? He obviously thought it would make the shooting look justified. Hence, if Scott really had grabbed the Taser and run away, or if Slager reasonably believed he had, then Slager clearly thought that shooting him would have been OK, whether or not it actually was OK. How do we know Slager thought that?  Because Slager planted the Taser next to Scott. Now do you begin to see how this all works?

People keep misunderstanding what I am trying to say about this case, and I don’t blame them for being confused. I’m confused too. It’s confusing. But, I am NOT saying that I believe Slager is innocent or did nothing wrong. I am just saying that the presumption of innocence can only be overcome by either a guilty plea or a conviction following a fair and impartial trial where a unanimous jury has to decide whether that presumption of innocence has been overcome by proof beyond a reasonable doubt. Their job, not mine. And not the pundits or the protestors or even anyone who is reading this.

For a good objective analysis of the use of force used here by Slager, from an intelligent Stanford guy (who else?) I recommend reading an article written by Clifton B. Parker in Stanford Lawyer,  about the opinions of Stanford Law School professor David A. Sklansky, a former federal prosecutor, on the use of force by Slager. It’s a good review of the relevant law, even if it is from a former prosecutor. Which brings me back to the point:

It’s the law, stupid, no disrespect. That is the whole point of our legal system. The fate of both victims and defendants is not supposed to come down to quickie opinions by puffed up pundits and ill informed random members of the public. The idea is to create a framework that allows us to be as objective and neutral as possible, applying set legal principles to an endless variety of facts and circumstances and arriving at a result that takes every possible reasonable argument or interpretation of how those facts apply to those laws into account. Not nearly as glamorous or dramatic as they make it look on TV. As I used to email to a friend of mine at 3 a.m, as I crunched out another late night brief while chugging espresso’s, my hair sticking straight up, wearing old sweats, “Hey, it aint’ Richard Gere in Armani!” No, it’s lots of hard work and detail oriented analysis. Lots.

So, there can be a different take on the planting of the gun. One that not only does not lead to guilt, but which actually supports the defense theory. That simple. But apparently too complex for Slager’s first lawyer who just gave up and walked away. I feel sorry for his clients too.

The other side of the planting evidence coin is what we criminal defense attorneys like to call “Framing a Guilty Man.” If I’ve seen it once, I have seen it a million times. Police know a suspect is guilty. And he is. Really, not just legally. The dude did it. But, there might be a problem with the evidence. So, they can’t resist helping the case along a little bit. They make sure that the dope is in the suspect’s pocket, not on the table in front of him, where he might be able to deny knowing it was there. They drop the bloody sock they find right in the middle of the carpet. They might even drop a gun next to the suspect. Whatever. They frame a guilty person. Does that mean we don’t go after them for that, trying to use it to make our client’s look innocent? Of course not. When they tamper with the evidence they have to know we are going to do that. But, ultimately, it does not mean the person is innocent. Same here, in reverse. Dropping the gun by Scott’s body not only does not make Slager guilty, it actually shows that he reasonably believed that if Slager was running away that he could shoot him because Slager believed Scott was a dangerous fleeing felon, armed with a potentially lethal Taser. In reality that Taser had fallen behind Slager where he probably did not see it. But planting the gun still makes him look guilty.

One final off the wall note. Back to my re-reading of “To Kill a Mockingbird.” Last night I had made it to the part where Atticus Finch has to explain to Scout that he had no choice but to do his best to help the falsely accused African American defendant that everyone in town thought was guilty, especially the white racists, which was pretty much everyone except Atticus. He said it perfectly as he spoke to his young daughter: “Well, all I can say is, when you and Jem are grown, maybe you’ll look back on this with some compassion and some feeling like I didn’t let you down. This case, Tom Robinson’s case, is something that goes to the essence of a man’s conscience — Scout, I couldn’t go to church and worship God if I didn’t try to help that man.”

Hallelujah, Brother Atticus. Hallelujah.

Slager’s first lawyer, the one who gave up and quit, might want to read that book.

Oh and on the very next page, Scout’s brother, Jem has to go read aloud to the old widow lady down the street whose flowers he trashed after she called Atticus nasty names for representing a guilty black man. The book he is reading? Ivanhoe. By Walter Scott.

Go figure.


Well, I have resisted getting into the Tsarnaev case. However, it represents the perfect storm of many of the themes we’ve been exploring in recent posts: an impossible fact pattern, a Defendant who is universally reviled after killing or maiming a bunch of innocent bystanders (including a small child), pundits falling all over themselves to see who can say the stupidest thing… and now my favorite, a small snippet of evidence demonstrating my entire point about how this type of evidence can be misleading and must be considered in context. Perfect.

Last point first: we are now in the “Penalty Phase” of the trial. At least as I type this we are – by the time this is posted it will probably be over. I predict, contrary to just about everyone I know, that the jury won’t vote for Death. We shall see. The misleading snippet of “evidence”, to use the term loosely, was presented, of course, by the U.S. Government Prosecution. By doing this they are demonstrating yet another fundamental principal of criminal defense work that I have not discussed here: overplaying your hand and willfully attempting to mislead the jury. Actually, I sort of have discussed it in terms of “framing a guilty man.” For this is what they are doing.

Tsarnaev is guilty. Make no mistake. His own lawyer, Judy Clarke (whom I have known for years) said as much during her opening statement during the “Guilt Phase” of the trial. (Of course that should be called the “Innocence Phase” but never mind. I never said our system is actually fair, just that it is supposed to be.)

You see, in most jurisdictions including Washington, a capital case is divided into two halves. The first half is the Guilt (or Innocence) Phase, where the jury decides whether or not the Defendant committed the crime or crimes that could justify putting him or her to death (almost always him). The second phase, the “Penalty Phase,” is where that same jury decides whether to actually put him to death, having found him guilty during the Guilt Phase. A HUGE problem with this approach of course is that the jury must be “death qualified”, which means they have to agree that the death penalty is something they would be able to vote for. Any bleeding heart liberals, like me, would be excused at the very beginning of the trial and not allowed to serve on the jury during either phase. It does not take a brain surgeon to see how jurors like this might be less likely to listen critically to evidence during the guilt phase.

This, combined with the fact that most capital cases have horrible fact patterns, leads many defense attorneys, like Judy Clarke, to basically waive the arguments they may have during the first half of the trial in order to save their ammo for the inevitable guilt phase. It allows the lawyer to maintain credibility with the jury because it is hard to get them to listen to you during the penalty phase if you are making weak arguments during the guilt phase which the jury then summarily dismisses before convicting. For this reason most capital cases require two different attorneys: one to handle each half. This gives the jury a fresh lawyer to resent during the second half. It also allows the defense attorney to focus on facts during the first half in a way that will (hopefully) help them later lead the jury to the conclusion that putting the Defendant to death is not a good choice.

Judy Clarke, a master at these types of cases, has done a textbook job of taking this approach with great skill during this trial. This brings me to the point about the pundits. I found myself talking back to the TV when I saw CNN’s Ashley Banfield, surely the least qualified person on the planet to be portrayed as a “legal expert,” scratch her head in bafflement when Judy got up in opening during the guilt phase and immediately said that her client was unequivocally guilty of being one of the Boston Bombers. Poor Ashley was dumbfounded. Of course that is probably because she has zero legal training or actual experience. She is not even a lawyer, much less a criminal defense attorney. I have no idea why CNN puts her in this position. They must not know much about the law.

So, for Ashley’s benefit (since by now you all now why Judy did what she did) let me explain: by taking this approach, Ms. Clarke managed to avoid alienating the jury right out of the box while simultaneously allowing her to begin “planting the seeds” needed to persuade the jury not to kill her client. Simply put, she was saying, “Yeah, he did it. But he was just a stupid teenager who lived in the shadow of his horrible dangerous murderous older brother and only got involved in this because his brother manipulated him.” Something like that. She has continued on that theme brilliantly, finding ways to ask questions about forensics that support this theory: the fingerprints on the bombs were the older brother’s, the computer searches were done by him, not Dzhokhar, who was just a stupid kid rocking out on music and porn and Facebook on line, not bombs. Etc. Good work, Ms Clarke. The fact that she is probably right doesn’t hurt either.

Which brings me back to the snippet. This makes me mad. It is not the first time I have been mad at a US Attorney and it won’t be the last, I am sure. You see, they tend to be the bullies in the sandbox. The ones with all the toys. Twice the size as everyone else. And their “parents” own the sand box. They have all the advantages, all the power, all the money, and all the resources. Snap their fingers and 1000 FBI and Homeland Security agents are scurrying around like rats at their beck and call. And still they cannot resist the urge to cheat, to throw sand at the little kids. It is the huge elephant in the room in our federal criminal justice system, one that few normal citizens ever find out about… unless they wind up caught up in it personally, in which case they are all like deer in headlights. One of the most difficult things to do as a criminal defense attorney is to try to explain just how stacked the deck is in federal court to clients who naively believe in fairness, without sounding too cynical or defeatist in the process. It’s hard.

What was the snippet that makes me so mad here? A photograph. That’s right. Just a photo. Of Tsarnaev flipping his middle finger at a surveillance camera. Have a look.


They then argue that Tsarnaev is flipping the bird to the entire nation, expressing his hate and venom at our entire way of life. The only problem is that this is complete b.s. He may have hated and despised us all and wanted to kill small children just for fun – in other words he may even be a good candidate for the death penalty in many people’s minds. But this is not proof of that. This is proof of a bored annoyed teenager — acting like one.

You see the prosecutor took that photo from a video. Have a second look. You can see a caged young man, held for hours and hours alone in a holding cell, bored, annoyed, walking in circles. Walking up to the surveillance camera and using it as a mirror, straightening his hair (was that evidence of evil intent?—don’t tell my wife). For a split second he flashes a “V” (wonder what that proves?) then for another tiny split second, barely extends his middle finger. That is it. Is that reason to kill him?

As Glenn Greenwald points out in his excellent analysis of this “evidence” it is incredible that instead of focusing on an American hating murderer of small innocent children, willing to do anything to rain grief and misery down upon the country, the US Attorney cannot resist the urge to overplay their hand. Why would they possibly want to do this? Easy. Because they are worried that Judy Clarke’s approach was working. In other words, that the criminal defense attorney was doing a good job, just like the Constitution says they should, and they just can’t take it any more. They just have to paint that one brush stroke too many.

What really bothers me is that, apparently, the Government was allowed to argue all sorts of dark and dastardly inferences from this misleading photo, showing how horrible Tsarnaev is, but Ms. Clarke was not allowed to argue less nefarious inferences. Real fair. Reminds me of the time I was threatened with contempt of court for arguing that my client was innocent.

Do not misunderstand. I do not love Dzhokhar Tsarnaev. In fact I kind of hate him. I remember distinctly where I was when those bombs went off. I was ranting and raving about how horrible that was, how they needed to get those bastards and was delighted when Tsarnaev ran over his brother and killed him. Talk about Karma. But, as I have explained repeatedly, that does not and should not matter. All that matters is that he is tried fairly and given the best defense possible. It is wonderful that he has Judy Clarke at the helm, a lawyer who has made a career out of helping despised defendants with impossible cases, all in the name of fairness. It’s just too bad the US Attorneys don’t feel the same way.


People have been asking questions about the last few posts, and, of course, I can’t resist replying.

The first thing I heard were questions about how I represent people when I “know” they are guilty. The answer to that is both simple and complex, as usual. The simple answer is that I make a point of not knowing if they are guilty. The complex answer takes a bit more explanation. See below. A young lawyer said that clearly Slager was guilty so what was my point? Fair enough. However, I have been doing this longer than this lawyer has been alive, even if he is in his thirties. Age and experience give you a certain perspective, which helps me answer both questions.

A doctor friend of mine likes to say that what people need is a young doctor (because they know all the latest and greatest techniques) and an old lawyer (because they can use their wealth of experience to help them know what to do in any given situation). My friend is no youngster so I take what he says to heart. And I agree with him. The more you see as a criminal defense lawyer the more you know. I can’t speak for doctors.

I know, for example, that I don’t know if someone is guilty just based on a small snippet of evidence, however compelling it may be. Much more importantly, I know that my job is not to worry about whether someone is guilty. My job is to look very closely and critically at the evidence with a completely open mind and see if there is any reasonable possibility that the State’s theory is wrong. I don’t have to show that there is another probable alternative, only that there might be a reasonable possible alternative interpretation of the facts.  

The experience comes into play when you try to figure out how to do that, but it begins and ends with an open mind – something sorely lacking these days, given the tsunami of unsolicited opinions (like mine) that wash over our brains every day. Here’s how it works.

First, you do everything ethically possible to limit the information, or evidence, that is being used against your client. There are two main ways to do that. One is to refute its accuracy. The other is to suppress it because some constitutional right was violated. This latter approach is often referred to as a technicality.

I personally don’t think that Constitutional Protections are technicalities. I think they are the fundamental cornerstones of our way of life, which I why I do the best I can to make sure that they are not trampled on in court. Or outside court. As in when someone thinks they know whether someone is guilty beyond a reasonable doubt without ever seeing all of the evidence and without first trying to think of every possible reasonable alternative explanation.

In Slager’s case that would mean considering whether believing that a suspect was running away with a loaded weapon that they had just grabbed out of your hand was enough of a reason to shoot them as they ran away. Perhaps the answer is no. Perhaps it is yes if it was a handgun, but no if it was a Taser. Or perhaps it is yes in both scenarios.

But perhaps it is not up to me. Perhaps the Founders were right when they followed the ancient directives of the Magna Carta and wrote the right to a jury trial into the Constitution. Maybe it’ s just me that cares about this stuff. I sure hope not.

Now, back to how do you approach a case with seemingly overwhelming evidence. Years ago I ran the CLE Committee for the Washington Defender Association with my friend Roy Howson. We taught young public defenders how to do their impossible jobs. Well, we tried to at least. I came up with the idea that we had to show things as they really are. Public defenders have to take any case that winds up in their in boxes – they don’t really have a choice. That is why it is such great training for trial lawyers. In addition, public defense clients are not paying by the hour. They can make incredibly unreasonable demands, especially when they are caught red handed with a mountain of incriminating evidence.

They might be caught on tape, have ten eye witnesses to the crime, have fingerprints and DNA all over the crime scene, and have written out a signed detailed confession. And you may not like them. So what? If they want a jury trial you have to give them one, and since their lives are in your hands you better darn well give them a good one. The best, fairest most zealous defense you can find, or create, with the facts as they will come out at trial. No more, no less.

And on the issue of whether you like them, what kind of world would it be if whether or not you got a fair trial depended on whether or not your lawyer liked you? I know, for example, that one of the people I talked with about these posts likes Burning Man.  What if I thought Burning Man was for a bunch of stoned losers? (I don’t, but still. I might.) Would it be OK for me to just do a so-so job for this client because of how I feel? I hope everyone agrees that the answer is NO. The same goes for whether or not I think they are guilty.

The CLE (Continuing Legal Education Seminar) went off without a hitch. We had called it “Winning the Losers” and invited a bunch of experienced criminal defense lawyers to come talk. Speaker after speaker shared their great tips on ways to use the evidence you were stuck with to make the arguments you needed to win. But, something interesting happened as the day evolved. Every speaker had a different take on things. In fact, at one point a speaker criticized the perspective of a prior speaker to the point that I was afraid we might have a crime scene on our hands right then and there. So, there can be disagreement on how to approach defense work, even amongst those of us who have done it for years – as there should be.

In the example above, let’s say it’s a Murder One case. The tape might be from a misleading angle or be hard to see clearly, as they so often are. The witnesses might not know that two minutes before the murder the decedent had threatened my client’s life. The DNA and fingerprints might be there because they were friends and over at each other’s houses all the time. The confession might have been coerced or fabricated. Or, if it is really tough, you simply make sure that the Coroner’s Report containing the homicide finding is marked DEFENSE EXHIBIT ONE, by arriving early before court at the start of the trial and having the clerk mark your exhibit first. Then throughout the course of the trial it is referred to as “DEFENSE EXHIBIT ONE!” Never know. Worth a shot. And it represents the extreme outer edge of using the evidence you have to create doubt. It also led to a lot of disagreement among our panel of experts.

So, what about Officer Slager? I just don’t know. I’m even a bit confused by Hernandez, the football player with the Patriots, and he was just found guilty of murder. However, just because I am a devout Seahawks fan does that mean I would not have tried my best to win his case at trial? Of course not. Otherwise what good would I be? And more importantly, what good would our vaunted criminal justice system be, the apple of the world’s legal eyes? Not much.