Revenge of the Poor House

Just because I expressed my anger at Scott Greenfield for sticking the banana boat song into the frayed neurons of my aging mind does not justify his vicious attack on me for wanting to put poor people in debtors prisons.

I bet he even liked the movie version of Les Misérables (2012), with all that horrible screeching masquerading as singing. What a lefty! No more bacon for him.

RGK

Double Jeopardy In Alabama, a judge can override a jury that spares a murderer from the death penalty.

The title of this post is the title to a long article in The New Yorker. See here. A friend of this blog suggested that I read it, and I am enormously grateful for the suggestion. While it will take you some time, I strongly encourage you to read it as well.

paige-williams-2014-150x150The piece is wonderfully written. Indeed, and whether intended or not, it is the best example of legal realism I have read in a long time.

The author is Paige Williams, an associate professor at the Missouri School of Journalism. Among other accomplishments, Ms. Williams is the former editor of Nieman Storyboard, the online narrative journalism publication of the Nieman Foundation for Journalism at Harvard. She holds an MFA, in fiction, from Columbia University. Her narrative nonfiction book “The Dinosaur Artist,” based on a New Yorker story, will be published, by Hachette, in fall 2016.

I wish I could write like Ms. Williams. In fact, I would sell what little remains of my soul to acquire that talent.

As for the legal issues raised by the article, I will leave that to mostly to you. What I will say is that electing judges, and then allowing judges to impose the death penalty after juries have decided against it, hits my nostrils as a particularly toxic brew.

I am interested in your thoughts, particularly if you are from Alabama. I would love to hear your views on the legal issues and, of equal importance to me, the writing of Ms. Williams.

RGK

*The federal system allows me to use acquitted conduct to sentence someone, although I don’t remember ever doing so. That said, having been given life tenure, I have no incentive to curry favor with those who vote with their viscera rather than their prehistoric brains. Nor do I need to worry about the leftist Wobblies who, spouting utter nonsense, populate, and parade about, college towns like Lincoln.

 

On sulfuric acid, designer gowns, Harry Belafonte and crime

H₂SO₄

H₂SO₄

Brother Greenfield skewers the glitterati in a post dripping with sulfuric acid entitled, Can Tina Brown Make Reform Sexy?* You should read it. If nothing else, take a look at the comments from those who are so offended. As they say, the truth hurts.

I am wondering about a question that Scott’s article very indirectly raises. If crime is highly correlated with poverty, and I believe that it is, can’t one make a compelling argument that imprisoning the poor for long periods of time when they commit crimes is far cheaper than truly trying to eradicate poverty? If that is so, maybe we need more, rather than fewer, prisons. Just a thought. 

RGK

*I am slightly angry with Scott. ‘Cause of him, I can’t get these damn lyrics out of my head:

Day-o, day-o

Daylight come and me wan’ go home
Day, me say day, me say day, me say day
Me say day, me say day-o
Daylight come and me wan’ go home

Work all night on a drink of rum
Daylight come and me wan’ go home
Stack banana till de morning come
Daylight come and me wan’ go home

Come, Mister tally man, tally me banana
Daylight come and me wan’ go home
Come, Mister tally man, tally me banana
Daylight come and me wan’ go home

. . .

The dreaded polar vortex

With high winds and gusts, the temperatures dropped like a rock yesterday evening and snow fell. Tonight wind chills will plummet to below zero.

Image credit: Dennis Mersereau

Image credit: Dennis Mersereau. “We’re all about to freeze to death at the hands of any angry Alaskan sea bomb.”

I hope the PV comes to a neighborhood near you. Misery loves company.

RGK

PS. For a scientific definition of the “polar vortex,” see here.

 

Vignettes from a former narc turned defense investigator

I can’t prove that the following unedited series of vignettes are true. All I can tell you is that I believe the writer who appears anonymously in this blog but is known to me. But then again my ability to judge credibility is suspect. So you be the judge. By the way, some of the references and language in the following account are dated. That is because the events described took place some years ago. The writer is now “retired,” although you and I would not describe it that way. I am privileged to share with you the following:

Note to the reader: All of the events described are true, however none of them took place in Colorado. My apologies to the narcotics squad of Denver. I’m sure you guys are great. My physical disability needs to remain undescribed, as it could lead to the discovery of my identity.

In my public service career, I was severely injured as a firefighter. I then became a paramedic, followed by a police officer specializing in narcotics enforcement. This piece details my move from law enforcement to:

Defense

Contrary to how most cops think, I always respected good defense attorneys. If you were smart about it, you’d realize it was just a game…good guys and bad guys with justice found somewhere in between. I wound my cases tight enough so that most of the crooks pled out, but I did spend some time in court and enjoyed it. On the witness stand, I always addressed my answers to the juries, not to the attorneys questioning me.

Near Denver, Colorado, a Mexican named Ernesto Almaguer, who I had done for coke and heroin, hired an expensive defense attorney. This lawyer looked the part and would be sympathetic to the jury. He wore his gray hair slightly long, stylishly cut without looking too much like a TV preacher. His gray suit bespoke dignity and good grooming. Doubtless it was expensive but not flauntingly so. In manner, belying the gentleman he looked, he was a rodeo bull, a killer out of the chute. After questioning my training and qualifications, he jumped right in.

“Officer Stevens, is lying a part of your work?”
“Yes, it is. I need to deceive the suspects into thinking I’m like one of them in order for them to feel comfortable selling me drugs, which is what they do.” He didn’t like me going beyond a simple “yes” but didn’t move to have it stricken.
“Don’t you find yourself lying all the time?”
“I never lie in court.”

Trying another tack: “Officer Stevens, is it common for narcotics agents to do the drugs they purchase?”
“No, it is not.”
“Did you not, Officer Stevens, and bearing in mind your previous testimony about not lying in court, snort cocaine in front of my client?”
“No, I did not.”

I never used “sir” as many cops do with a defense attorney. I never wanted to give a jury the idea that I held the defense team in high esteem. Nor did I ever show contempt for them.

“Officer Stevens, my client is prepared to bring in witnesses who will testify to seeing you take drugs in his presence.”
“I feigned doing the drugs in front of your client and his companions in order to put them at ease with me.”

The attorney looked he had just been given a new Rolex. He moved closer to me, smiling. He was about to commit the cardinal sin in court: don’t ask a question unless you know the answer. Ask the question. Ask the question!
“Officer Stevens, would you show the jury just how you feigned doing drugs in front of my client?” He looked over at the jury, smiling, waiting for my answer.
“I’d be happy to but I’ll need a few things.” The judge granted noon recess while I wrote out a brief list for the attorney while the worried young prosecutor looked on.

“Are you sure about this?” the DA asked quietly as the jury members filed out. “No sweat, I developed this technique and have taught it at narc seminars,” I answered.

In the narcotics training classes I had attended, most of the information was dated and supplied by pedantic guys who hadn’t been on the street in a long time. Or, the classes were given by the DEA, in which case the techniques taught were rigid, mostly ineffective and even counter- productive. Good narcs need to be flexible, able to adapt to changing circumstances. That’s not the government way.

While working in the southern part of Colorado, I’d developed enough good information on large scale cocaine dealing that the DEA became interested in my work. They sent out a brand new agent, just out of training at Quantico. His name was James and through no fault of his own, he was a Texan. That, though, together with his recent training, was a miserable combination. It’s no secret among law enforcement officers that the DEA, and slightly less so the FBI, look down on the “locals” and are famous for taking over good cases. I was determined not to let that happen.

I was working on a young couple, Steve and Marcie, who had risen in a mercurial fashion from stealing hub caps to dealing major quantities of cocaine. Although not sophisticated, they weren’t stupid and knew everyone on the street. For several years, the local PD hadn’t been able to touch them.

Funds for local law enforcement are always scarce but the cops adapt by being creative and resourceful. When the day was set for me to introduce James to Steve and Marcie, a pre-meet conference was scheduled with the DEA at the local county Sheriff’s office narcotics unit. The unit was located in a small, two room office with a few messy desks crammed in. I was there with my sometimes partner Big Boy, all 350 pounds of him. A couple of the other narcs were interested in the show and hung around. By the time all the DEA Special Agents arrived, there was scarcely elbow room. They had come in three cars and looked, with the exception of James, like they walked off the set of Miami Vice, all pastels and jewelry. James was his own special case, arriving in a sharkskin suit accented by a pair of lizard skin cowboy boots. Christ, when did the Mafia take over Houston? It was announced that he was to be the “prime” operative and that my role was simply to introduce him as my friend “Jimmy” and then get out of the way. The other agents would be cover and surveillance. We street narcs looked around and tried to smile at each other only with our eyes. Without saying so, we were all pretty sure that the city of Stewartsville was in for a treat.

“Guys,” I started, “I’m not sure you understand the climate in Stewartsville. It’s a small town and our suspects know all the other bad guys. None of them look like you. This is gonna to spook ‘em.”
“Don’t worry,” one assured me condescendingly. “This is our formula and it works.” Okay, it’s your show.

I wanted James to meet Steve and Marcie at a small taqueria I knew, figuring I could score a good Mexican lunch at the same time. Introducing them to someone new was going to be tough under any circumstance, but at least the atmosphere there was casual and it had a slim chance of working. But no, that wasn’t the government way. They wanted to meet at the fanciest restaurant in town so that Jimmy could impress them.

“Guys,” I tried again , “This really is going to spook ‘em. It’s not gonna work. They’re not the fancy place kind.” I was told that the agents had already visited the restaurant and that it was the only place where they could adequately protect James.

“Guys, nothing’s going to happen today of any substance. Steve’s not going to sell to James, especially on the first day they meet. The danger’s minimal. I’ll watch out for him.” But who, I wondered, would watch out for me if the crooks fingered James and his well dressed cadre? I’d be guilty by association. The DEA guys would all go home to Denver and I’d be on my own.

My objections were overridden and we drove, conspicuously I thought, to Stewartsville. How many brand new Camaros, I wondered, would it take to tip our hand? Three would be my guess.

We hung in the parking lot while the DEA backup squad crowded into the restaurant. I was chagrined and embarrassed. James told me how he wanted the caper to go down. “Listen,” he said, “you just introduce me. I’ll do the rest. I’m going to tell him I won’t buy anything less than a kilo to start.” I rolled my eyes. A sharply dressed female agent joined us as James’ girlfriend and we went it. This is just getting better and better.

There’s something in the dna of drug dealers that renders them incapable of being punctual. Maybe they’re high, possibly they’re lazy and probably they don’t really care. James was getting nervous when Steve and Marcie hadn’t shown after 30 minutes. “Don’t worry,” I offered, “They’ll show.”

They did show but not together. Steve sent Marcie in first to check things out. I got up and met her at the door. “This is pretty weird,” she said. “We hardly know you and now you want us to meet someone else and here” she croaked out, looking at the chandeliers and fancy table settings.

“Don’t worry, this guy’s ok. He just has his own way” I explained, trying to smooth the path for the giant mudslide I knew was to come. She left the restaurant and returned several minutes later with Steve.

There are times in our lives when we know we’re surrounded by fools and there’s no way out. There are times when we see people who are oblivious to the situation they’re in and are incapable of reading the people they’re in that situation with. Such was the case with James that afternoon. He became a boisterous, obnoxious Texan. He complained loudly about the service and then the food. He tried to pal up with Steve who looked around, spying people who he knew were out of place even in a restaurant he was unfamiliar with. Steve was having nothing to do with it. He stared at me, someone he was nervous about to begin with, with a suspicious look that asked me “Who the fuck is this guy and why am I here? And while I’m asking, who the fuck are you?”

I was embarrassed, even in the make believe world of undercover narcotics work. I considered trying to rescue Jimmy, but he was floating away too fast for my life ring to reach him. Fuck him. I’ll just sit here, eat this expensive food and watch him self destruct.

James wanted to talk drugs and lots of them. Steve and Marcie were silent. The female agent tried to make girl talk with Marcie in a kind of Macy’s-meets-K Mart conversation. I tried wishing myself into another dimension. As Steve and Marcie got up to leave, the surveillance agents hurriedly called for their checks and scrambled, not very nonchalantly, for their cars. I met up with Big Boy who had watched the circus parade from across the street at an Arby’s. “Sharp guys, those DEA types,” was all he said, wiping the mustard from his abundant mustache. James reported to me that evening that Steve and Marcie had been followed to their home. “Wow,” I replied, “That’s some hot intel. Your guys are real aces.”

While it didn’t go over too well with the feds, the local coppers liked my independent attitude and defense of home turf. Because of the flexibility and creativity I had been showing, I was now being asked to give classes to cops about my methods of operation. One was the feigning of coke use. It was absolutely never to be a common or preferred technique, I taught, since things could go wrong. But in a tight spot where there was no alternative and things felt right, especially for a deep cover officer, it could be used to establish credibility and enhance the operative’s safety.

Court was reconvened after lunch. The defense attorney, sure of his impending victory, took on a less aggressive manner toward me. Maybe he thought that after slaughtering me on the stand, he wouldn’t want the jury to side with me out of pity. He approached the witness stand and pulled the items I had requested from a paper bag; razor blade, hand held mirror, short drinking straw and a small amount of table salt. I smiled to myself thinking he probably had all but the salt at the ready in his office desk.

“Okay,” I addressed the jury members seated to my left and ignoring the attorney, “Here’s how this goes. I need to set up the situation just right. I’m in control of this deal. If it’s in a car, and space is tight and the bad guy’s visibility of me is too good, I tell him I’m paranoid and he needs to keep a watch out for cops. Remember, in this world, no one trusts the other guy. Let’s do this like we’re in a car.”

I held the mirror in my right hand and chopped the salt with the blade as if it was coke, scanning the courtroom looking for cops. I set the blade down. I now directed my full attention to the jury member closest to me, engaging his eyes with mine. I held the mirror a little below the level of my chin, straw held between my left index finger and thumb. I instructed him to watch for cops and motioned with my head to his left. A fully willing accomplice now, the juror turned that way. As he did, I bent over, brought the mirror closer to my face and licked the tip of the small finger of my left hand as I looked away from the juror. I snorted about ½ inch away from the line of salt I had made, scraping it up onto my wetted finger. I straightened up and quickly showed the jurors the salt on my finger before it dissolved.

The DA looked at me like a proud father whose adored son who has just hit his first home run. The defense attorney looked like he’d been thrown naked into a patch of blackberry bushes. He managed to throw some humor out as he was falling off the cliff. “Officer Stevens, is it true that you have an obvious physical disability that might make people like my client believe you are not a police officer?”
“Yes, it is.”
“Don’t you think that’s a little unfair?”
Guilty as charged.

I’ve found that the better the cops, the less antipathy there is toward the defense. The sloppier the cops, the angrier they are to be called into court or for defense interviews.

I referred to what I did in leaving police work to go to work for the defense as jumping the fence. The few real friends I had in police work understood that I had lived and worked alone almost three years under heavy stress and that it was okay for me to leave. They knew that we would be engaged in the same game, just on opposite, respectful sides of the field. The others shunned me and would do so even more when I started to pick apart the cases they had made. The precept that everyone is entitled to a defense wasn’t something they took seriously. An even harder concept for some of them to grasp was that a suspected bad guy should get arrested for what he was actually doing, not for what the cops knew or imagined he had done in the past.

The Denver PD narcotics detectives were the most antagonistic toward me. The several cases I worked for attorney John Ziegler cemented my relationship with them. One was a search warrant served for drugs after a long and complicated vehicle surveillance. An initial scan of the police reports, especially those detailing the surveillance, made it look bad for our guy.

I took a real luxury in reading the reports in a big case. For one thing, I could bill for all my time. But mostly, I loved getting inside the heads of the cops. How long had they been after this guy? Did they stay awake during the entire caper? Do they bear a special grudge against the crook?

I always favored the cops, not the crooks. I liked nothing more after reading reports and doing extensive interviews with the cops and witnesses than to go to the attorney and tell him, “Your guy is hosed. Better cut the best deal you can right away.” I liked it less when I found a cop who was lying and I proved it. What I loved in this antagonistic, cat and mouse game was the challenge. How good were they? How good was I?

In the surveillance part of the reports, after several readings, I picked up on a subtle change in the details of the reporting narc’s writing. He had been specific in his descriptions of what was happening up to a certain point. Then, the details became vague over the time it took the suspect to transit a couple of streets. Then again, the details became more precise. Shit, they lost this guy for a couple of blocks!

The cop was lying, but doing so in such a way that he felt ok about it. It was close to the truth. I scheduled the interview and met him at his headquarters. He came in to the room with an air of authority and superiority. He made it clear that I was inferior, an unworthy foe. That I was an ex-cop made it all the worse.

I bored him for a while with questions about his background and his training. His guard was down when I asked him how long he’d been working on my client. Quite some time and it was clear he didn’t like the guy. He sure didn’t like me and that suited me fine. He wasn’t cautious with his answers, letting his antipathy toward my client and me get away from him. I asked him about the surveillance in a ho-hum manner, as if I was going through the pre-determined steps just to get paid. I almost had him dozing when I asked him about the lack of details covering the time it took the suspect to transit those few streets, but he awoke quickly and was on high alert. He stumbled over his answer. “Listen,” I said, “You had this guy cold, you lost him and then you picked him up again.” I put my legal pad in my briefcase. “Then you got a search warrant based on phony continual surveillance.”
“Listen yourself,” he replied. “This guy’s an asshole and he’s been selling drugs a long time.”
“What you mean is,” I countered, “that you lost him but you know he’s a crook. You’re sure he’s sold drugs in the past and you want him convicted for that. But you don’t have him this time and that’s how the game’s played.”

He stormed out of the interview. The DA dropped the charges a short time later. From this time on, the wall was up with Denver PD and the narcs insisted on having a DA present for any further interviews with me.

I had an odd encounter with a State Trooper in another drug case that looked flimsy to me. He had been working a drug detail for a couple of years and was anxious to beat some kind of record for drug arrests. He made me aware of this when I asked him about his undercover experience and the number of buys and cases he’d made. “Almost 300 cases and that’s the record. Some guy worked all over the state with different agencies and made all those cases. This one will tie me with him.” Christ, he’s talking about ME!

I was both flattered and angry. This trooper, who looked like a youth pastor at a holy roller church, was making lousy cases out of a sense of competition. I grilled him hard for the rest of the interview and knew his case couldn’t hold water. As I got up to leave, shaking his hand, I said “I’m the guy you’re competing with. You won’t tie me with this dog of a case. You gotta sew ‘em up tighter.” Case dismissed.

Accident investigation is a specialty, one in which I had no expertise. So when I got a call for a DUI case with a serious accident involved, I was surprised. Walter Percer’s client was driving at night, northbound on I-25 when he hit another car. A couple of the occupants in the other car were seriously injured. Walt’s client, the drunk, was uninjured. Because of the nature of the injuries and the DUI, he was facing felony charges. Percer was hoping to plea his guy out to a lesser charge.

He gave me the police reports and I spent a lot of time on them, much more than I could bill for. They were really confusing. I attributed my confusion to my lack of knowledge on the subject of accident investigation. Well, I’ll do some interviews and maybe get enough info to help Walter. And, I’ll get paid. I made an appointment to view the impounded cars and to interview the Trooper involved.

While looking over the cars with two troopers in attendance, I tried to act like I knew what I was doing. I think they saw through the ruse. I then sat down with them for interviews. “But,” I said, “neither of you two were at the scene of the accident.”
“No,” one replied, “We took the case over because we’re detectives. You can speak with us.”
“Great,” I replied. “I will, but I need to interview the trooper who was at the scene.”
They looked at each other with resignation. “That officer is dead.”

I told them how sorry I was and asked about the circumstances of his death. He had died of a ruptured brain aneurism shortly after this accident. The light bulb clicked on. It wasn’t that I couldn’t understand the on-scene reports because I lacked the expertise in accident investigation. It was that this poor cop had been about to blow a tire in his brain and by the time he’d sat down to write the reports, he was greatly compromised. This was one case I didn’t feel great about helping to win.

Pride in my work has always been important to me, whether as a cop, private investigator or paramedic. That pride was never more seriously tested than when I did defense work on child sexual abuse cases. The work I’ve done has exposed me to some of the rawest things a person can imagine. I’m sure I haven’t seen the worst, but I’ve gotten clear images of what people can do not only to themselves but to others.

Defense attorneys have special kinds of stomachs to keep their food down when sitting with some of their clients. Self serving and guilt expiating statements aside, everyone is entitled to a defense and I admire the attorneys who do that work. But still, some crooks should just be shot and save the courts time and money. I’ve met a lot of them. The one characteristic they all share is…lists. Lists of kids they haven’t raped. (My silent response: so there are some you haven’t gotten to?) Lists of people who they’ve helped along in life. (My silent response: You’ve paid these people or have given them presents so you could rape their kids) Lists of people who will vouch for them (My silent response: losers who will say anything you can influence or pay them to say.)

This being said, there was a movement in prosecutor’s offices during the time I did this work toward believing anything a child or adult female victim said. It was well before the term “political correctness” was coined, but it was there just off stage. This was when a wife could jab at a husband in a custody battle by manipulating the kid into accusing the dad of molestation. It was when a woman could accuse a guy of rape, with no accompanying evidence or credible story, and be believed. It was when a parent could influence a child to keep quiet in the face of a monstrous crime and the prosecutors wouldn’t dig deeper.

Among many such cases, one will always stick in my memory, the murder of a child. Our client was the accused, the father. It was a low paying court appointed case for me; it was the same for the uninspired attorney I was working for. The police reports showed no promise for our client; not that I thought there should be any. Gang killings and drug murders were victimless crimes in my outlook. The slaughter of a child wasn’t.

The parents of the youngster were lowlifes in their early thirties, living in a small and dirty weekly rental in Trinidad, south of Pueblo . They had one remaining child, a six year old girl. The investigating officers had found her brother, a three year old, dead in the bedroom both kids shared. They called for paramedics who pronounced the youngster, bloody and bruised, dead at the scene. The autopsy revealed multiple skull fractures with intracranial bleeding as the cause of death.

I started the case by interviewing our client in jail. He was anxious to tell his story. He and his wife had been drinking and snorting coke and had a fight. They settled things and did more coke, finishing all they had. The wife went out to find their dealer and was gone a long time. The boy was restless, fussing and crying. As he became more agitated, so did our client. He tried to quiet the baby and only got angrier. He shook the baby, hit him about the face and threw him across the room. The youngster stopped crying. And moving.

My next step was to interview our client’s wife. Their apartment was so like those I was familiar with as a narc that I thought I was watching a movie of my past. There’s a smell that comes from unwashed bodies, cat and child urine, dirty dishes and desperation. This apartment had it and it hit me before I crossed the threshold. The mother was in apparent anguish and closely echoed the story her husband gave me. I say apparent anguish because I felt her holding something back. She was a dope fiend so my expectations of meeting a grieving mother weren’t high. Amid the tears there was a coldness, an aloofness from the situation. A piece of this seemingly obvious puzzle was missing.

Because of the age of the surviving girl and the gravity of the case, a representative of the prosecutor’s office from the victim/witness division,
was in attendance when I interviewed her. I had interviewed several people with her before and thought she was okay. Some were way too aggressive in protecting their clients, scolding me when my questioning got to the point of probing for details. “Look,” I would reply to them, “I’m a nice guy. The defense attorney’s a jerk. Who would you rather have talk to this kid?”

The interview took place at the child’s aunt’s house. It was a modest home and simply furnished, but clean and much better than the kid was used to. We were alone with her on the first floor. I tried never to talk down to someone I was interviewing. Rather, I tried to set them at ease with me being a nice guy who just wanted to do my job, get at the truth and then leave them alone. In the case of a child, being open and respecting their intelligence was most often enough to get a satisfactory interview.

After introductions, I began by asking about her brother’s health. It had been okay as far as she knew. I asked if he cried and fussed much and she said yes. This was where I’d find the golden key but the time wasn’t right to press in. I questioned her about her parents and if they fought much. They did, she said, but didn’t really know why; it seemed to increase when they had a party together. I talked about her school, favorite subjects and fun sports for awhile. About twenty minutes had passed and I knew that her attention was waning. Now was the time to turn that key. “When your brother died, were both your parents home?” “Yes.”

Bingo, here we go. My suspicions after interviewing her mom were soon to be justified. “You know how important it is to tell the truth all the time?” I asked.
“Yes.” Her eyes flicked aside ever so quickly. This was it.
“It was your mother who hurt your baby brother, wasn’t it?”
Man, I hated this. Her eyes dropped to the floor and then to the victim/witness woman, who had suddenly come alert and glared at me. I gently held my hand up, motioning for her not to say anything.
“Yes.”
“It wasn’t your dad, was it?”
“No.”
We thanked the child and took her upstairs. On our way out to our cars, I turned to the victim/witness rep and said, “My client’s attorney will expect a call from your boss in the morning.”

My emotions were jumbled when I got home late that night and poured myself a tall, straight glass of rum. Why hadn’t the cops picked up on this? Why hadn’t the DA questioned the reports? Why hadn’t he taken a closer look at the mom?

After the mom pled out and the dad was released from jail, the attorney, gloating over his victory, told me his misguided client was trying to cover for his wife, taking the credit for the case I’d broken. It was a little like someone telling the baker how the bread was made.

One more example of victims being believed in the face of all evidence to the contrary stands out. It was a woman who accused two guys of rape at a party. Everyone there had been drinking when the suspects took her upstairs where, the cops said, both had forced sex with her. They then had sex with her again, this time in a different position. The police reports treated this lightly. No one downstairs heard anything like a struggle. No one heard any shouting. I blinked as I reread this section several times. WHAT?!?!

When my chance to interview the victim came shortly before the trial, I had no set plan. I just determined to fill in some of the blanks left by the sloppy police reports. The most obvious questions were: Had you known both these guys before the party? What did each person do after the initial sex? How long after the first sex did the second intercourse occur? The answers, in order: No. We went to sleep. About an hour.

There were only a few more questions that would lead to a dismissal of the case. In the hour after the first sex, did you make any attempt to escape? No. Were you restrained in any way from leaving? No. Did either of these guys call you after that night? No. Were you upset by that? Yeah.

One of the cases that stretched the bounds of my complicity with defense attorneys was again with John Ziegler. It was actually a series of cases, that, while keeping me well supplied with cash, gnawed at me. John represented several Mexicans, who comprised a cartel-within-a- family. Over several months, scarcely two weeks passed that John didn’t call me about a new family member arrested. I’d arrive at his Denver office, greeted by his secretary who handed me a retainer check for $2500.00. Each time.

The head of the operation was Adolfo, a young, handsome light skinned Mexican. I soon met his wife, Dina. The two looked the picture of the American Dream. Young, hard working foreign nationals who had made it good in the States, living in a good neighborhood and driving nice cars. Hard working they were indeed, keeping a stable of cousins and nephews busy distributing large amounts of cocaine north and south along the I-25 corridor and east and west along I-70. I had no doubt that some of the coke I’d bought in my narc days came from these folks.

Every time there was an arrest or a suspected surveillance, I got a call. More by luck than design for Ziegler’s clients, all the cases were in state court. This was probably due to the fact that the arrests were scattered over several counties. John, with my assistance, cut some great deals for most of the mules, or family delivery men. Some, however, were just too guilty for even an ace attorney like him to help.

A big concern of Ziegler’s was that he knew the feds wanted these folks badly. Once they got into the act, the show would be closed down. When he would interview Adolfo and his wife, I was often there to help with translation. I would then be excused for him to spend time alone with his clients. While I never asked him what was said during these private meetings, I imagined John the attorney giving them the advice to stop doing what they were doing. On the other hand, I thought about John the investor who, with his partner Max Malcovich, had taken a bath in the ’89 stock crash. He liked and needed the income flow.

I too liked and needed it. Along with that, I enjoyed doing verbal battle with the arresting troopers, street cops and detectives. The closing act came in Pueblo county and while saddened at the loss of those big checks, I was happy to be done with Adolfo’s clan.

A state trooper had pulled over a speeding (wow, how dumb was that?) sedan with several Mexicans inside. Once at the side of the road, the occupants bailed from the car and scattered. The slowest cousin was the chubby driver, who was grabbed immediately. A quick search of the car on probable cause revealed a trunk full of kilos of cocaine. This cousin was arrested and placed under $20,000 bail.

This was a mistake. Perhaps the presiding judge was fooled by the peasant-like appearance of the man before him in court. Possibly he didn’t think this mule had any connections who could help him out.

Ziegler called me first thing Monday morning and told me to pack for an overnight trip. At his office he handed me two bank withdrawal slips for $9,999.00 each. I understood immediately. Any bank withdrawals over $10,000 had to be reported to the feds. He also handed me an envelope with $1,000 cash to cover my immediate travel expenses, the balance to be given to Adolfo’s cousin.

The glance I gave John opened a gulf between us that never closed. It was a questioning, partially hurt and feeling-fully-manipulated look. I was to go to the county jail in Pueblo and bail his new client out. I was to get him a room and give him a bunch of cash.

The term “client” really didn’t apply. We both knew that the cousin would contact Adolfo and be told where to go for the time being while arrangements were being made to ship him back to Mexico, never to appear in court.

The look I got from the jail staff and detectives in Pueblo as I handed over the $20,000 in bail money weren’t as kind as the one I’d given Ziegler. They hated me and made every effort to show it. I shared their thoughts.

RGK

 

 

On growing old

When two lawyers in their early 70s nearly came to blows after a screaming match at a country club dining room, their combat made the pages of ATL. See Staci Zaretsky, Old Lawyers Fight At Country Club, Submit Dueling Membership Revocation Letters, Above the Law (November 7, 2014).

As I laugh at the absurd behavior of these old men, and remember fondly the greatest food fight of all (see below), there is a niggling fear in the back of my mind. With age comes irrelevance. With irrelevance comes seething unfocused anger at the unfairness of it all. There is no known antidote. But, it helps to have grown up before you grow old. Too bad for me.

RGK

The conversation that I wish Judge Sutton would have had with one skeptical law clerk from a land grant law school

Skeptical law clerk: Judge, as you asked, I have carefully read your opinion on the gay marriage cases even though another clerk worked on it.

Judge Sutton: Thanks. What do you think?

Skeptical law clerk: Do you really want to know?

Judge Sutton: Young woman, I don’t ask questions for fun. What do you think?

Skeptical law clerk: It is very weak.

Judge Sutton:  How so?

Skeptical law clerk: I don’t know where to begin.

Judge Sutton: Pick any place and start.

Skeptical law clerk: Nobody is going to buy your reliance on that old, one sentence case from the Supreme Court.

Judge Sutton: I am bound by precedent.

Skeptical law clerk: Come on, Judge. You could reason your way around that old thing in your sleep.

Judge Sutton: Well, maybe. Go on.

Skeptical law clerk: You are swimming against the tide, and you know it Judge. Frankly, you cavalierly reject the views of the 4th, 7th, 9th and 10th Circuits. That says to me that you don’t have much of an answer to their reasoning.

Judge Sutton: But, I’m right and they are wrong. These are matters for the public to decide in their legislative halls. Ultimately, the public will get it right.

Skeptical law clerk: Setting to one side the harm to gays in the meantime, don’t you see that you are forcing the Supreme Court’s hand by creating a Circuit split?

Judge Sutton: Of course, that’s the purpose of my opinion.

Skeptical law clerk: Judge, with due respect, why would you force the Supreme Court’s hand?

Judge Sutton: To start with, that’s why we have a Supreme Court.

Skeptical law clerk: That’s cold, Judge.  Don’t you think you should exercise more restraint.

Judge Sutton: Restraint? My opinion reeks of restraint!

Skeptical law clerk: You don’t call for restraint, you call for abdication of the judicial role. Then you wash your hands of the consequences by relying on the Supreme Court! Along the way you thumb your nose at a large group of equally thoughtful judges who have gone the other way.

Judge Sutton: You are making me angry.

Skeptical law clerk: Well, you asked for it. Moreover, Judge, you are really hurting the federal courts.

Judge Sutton: What the hell do you mean?

Skeptical law clerk: Nobody would have cared if the Sixth Circuit blew up these laws.  The decision would have simply been one in a long stream of cases going the same way.

Judge Sutton: So what?

Skeptical law clerk: A true conservative would be concerned with preserving the notion that law is not politics by some other name. Your contrarian opinion will prove the opposite–judges decide cases according to their own political leanings. The fact that your opinion looks and smells one-off is proof positive of their point.

Judge Sutton: That’s B.S., but go on.

Skeptical law clerk: Judge, the Supreme Court doesn’t need the heart burn your opinion will cause. Scalia, your former boss, will go ape shit, Kennedy will write something inane, and the liberals will join him and reverse you. What’s worse, the Court’s opinion, with all the angry dissents, will be just one more reason for the public to distrust the federal judiciary.

Judge Sutton: What do I care? I’m right.

Skeptical law clerk: That’s cold Judge.

Judge Sutton: I knew you would be trouble when I hired you. That’s what I get for selecting someone from a land grant law school who was not a member of the Federalist Society. Leave me. Tell the kid from Harvard to get his ass in here.

Skeptical law clerk: OK, I’m going. One last point. You seem to have forgotten that you got your law degree, and lessons in good and practical judgment, from Ohio State.

Judge Sutton: Out!

RGK

 

 

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