The Trial of Jimmy Dimora: Week 3

Note: For those of you who live outside Northeast Ohio, former CuyahogaCounty Commissioner Jimmy Dimora is on trial in federal court for multiple counts of bribery and corruption. The trial is expected to last for approximately three months. Every Monday morning, I give legal commentary for WTAM 1100 AM.

This week has shown another important aspect of a criminal trial. We are sensitive to the rights of the accused. We are sensitive to the rights of victims. But this week has shown us that we should be mindful of the family of the accused. As we heard the tawdry stories of Jimmy Dimora and the various women provided for him, our hearts could not help but go out to his wife, Lori Dimora.

Last year, in Cincinnati, I heard Sister Helen Prejean, the author of “Dead Man Walking” and internationally-respected anti-death penalty activist, speak. She said that the crucifix is perfect metaphor for a criminal trial. On the left beam, you have the family of the victim. On the right beam, you have the family of the accused. Both are grieving.

As a criminal defense lawyer, I spend a good deal of time with grieving families — the families of the accused. They suffer because of social humiliation. The suffer because they lose their loved one — for a few months, for a few years, maybe for a lifetime. They suffer because they often feel powerless to help their loved one in a system which often denies their very humanity. They suffer and often sacrifice to mount the costs of their defense.

I can’t even begin to imagine what Lori Dimora suffered this week.

Grand Jury Reform

Ever heard the expression”A grand jury could indict a ham sandwich”? As most criminal defense lawyers will tell you — and the statistics bear this out — the expression is true. As a result, the integrity and legitimacy of the grand jury system has been called into question in recent years.

In response, the National Association of Criminal Defense Lawyers (NACDL) has issued a ground-breaking report titled “Evaluating Grand Jury Reform in Two States: The Case for Reform.” You can read the full report at http://www.nacdl.org/2stategrandjury. The report focuses on two states, Colorado and New York, which have undertaken significant grand jury reform. Based on extensive study of those two states, as well as interviews with prosecutors, retired judges, and defense attorneys, the report makes the following recommendations:
1. There should be a defense representative in the grand jury room;
2. The defense is entitled to transcripts of witness’ testimony;
3. There should be advance notice for witnesses to appear;
4. Exculpatory evidence should be presented.

If you read nothing else in this report, read the Foreward written by Larry Thompson, the Deputy Attorney General under George Bush from 2001-2003. Among the most quotable passages:
“… the 94 federal grand juries across the country function more like feudal duchies, in which federal prosecutors exercise virtually unchecked power to indict. I say this having sought countless indictments before grand juries and having overseen the Justice Department’s work to promulgate uniform rules for federal prosecutions, including grand jury proceedings. Simply put, the federal grand jury exists today, for the most part, as a rubber stamp for prosecutors.”

You may be a target of a grand jury. This report will explain what your attorney has probably already been struggling to explain to you — that at this point, you have very few rights. But this report will also show that some jurisdictions have expanded the rights of targets and of grand jury witnesses — and in the process have not compormised the administration of justice. Indeed, these measures have helped return the grand jury to its role as a safeguard against unwarranted prosecution which the Founding Fathers envisioned.

Celebrity Court Radio Returns!

I am so happy that Celebrity Court Radio returns to the airwaves this afternoon!

For those of you who don’t know, let me explain why I have been on “sabbatical” for three months.

This summer, my mother died. Moreover, I had a huge case to try in federal court. And I was doing legal commentary about the Anthony Sowell trial for Channel 19 WOIO , the CBS affiliate in Cleveland. All of this made me realize that something had to come off the shelf — and unfotunately, the show was it.

However, there has been a good deal of activity in the background. You will notice that my website has undergone a major revision. Special thanks go to Susan Lowry and Karl Shaw of SquareOne Consulting in Akron. Also, I have been working with Chuck Taylor, a former editor and writer at Billboard (and author of the best blog ever, The Smoking Nun!), on a book called “Celebrity Second Chances.” If you follow the show on Twitter, you will notice a stady stream of Tweets. And most importantly, thanks to Mark Goldman and Ryan McCormick of Goldman McCormick PR in New York City, the show ghas moved to Blog Talk Radio.

During the past three months, I realized just how much I loved doing Celebrity Court. I say that is it the “funnest” part of my week, and that is true. People from all walks of life told me how much they enjoyed the show and were intrigued by the concept. And the show was recognized this spring by Talkers Magazine as being one of the top 250 shows of 2011.

But more importantly, I realized what a powerful vehicle Celebrity Court is. On the show, during the “Second Chances” segment, I highlighted several wrongful convictions. In particular, I highlighted two upcoming executions in Ohio. Shortly thereafter, two differnt governors commuted these sentences. Make no mistake: I am not saying that Celebrity Court singlehandedly made the difference. Rather, what I am saying is that the show provided a powerful platform to inform listeners of these innjustices — and the actions which they could take.

In September, when the whole world was focused on the upcoming execution of Troy James in Atlanta, I realized I was without the platform of Celebrity Court. Simply blogging did not feel like enought. How I wish I could have done more.

If you listen to the show, you realize that I am proudly and unabashedly a criminal defense lawyer. The show was created because, unfortunately, this is a perspective which is lacking. And the show uses the vehicle of celebrities as an excuse to discuss a variety of issues. I have learned that most people have no desire to discuss the criminal justice system in a meaningful way. It is something for other people. However, thery suddenly become interested if they or a family member is in trouble — or if their favorite athlete, politician, or Hollywood celebrity is in trouble.

So enjoy the show. I know I will. And as I always say when signing off “Injustice anywhere threatens justice everywhere.”

Troy Davis: WWCD? (What Would Clarence Do?)

As I write this on September 18, 2011, the entire world — in large part because of the power of social media — is focused on the State of Georgia. On September 21st, Georgia is scheduled to murder Troy Davis.

Much has been written about Mr. Davis’ innocence. In particular, his sister wrote a moving piece in The Huffington Post titled “The Execution of Troy Davis — A Mother’s Story.”

Troy Davis’ case has all the hallmarks of a wrongful conviction: mistaken eyewitness testimony, law enforcement misconduct, lack of physical evidence, and recanting witnesses. Sadly, it has reached the point that every story of a wrongful conviction has the same plot. Indeed, the stories would seem repetitive if the consequences weren’t irreversible, if the consequences didn’t involve flesh-and-blood human beings.

I just finished John A. Farrell’s magnificent new biography of Clarence Darrow titled “Attorney for the Damned.” (This should not be confused with the same title which came out many years ago.) Unquestionably, Darrow was a flawed human being and Farrell does a fine job of showing Darrow’s weaknesses including his cavalier treatment of women and his ethical lapses. But one of Darrow’s great strengths was his consistent, passionate opposition to the death penalty. Even in cases where the guilt was certain, the crime particularly heinous, the accused despicable, Darrow advocated life in prison rather than execution.

Given that, what would Darrow think about our executing people like Troy Davis where the evidence presented at trial was suspect?

One of the major reasons why Darrow opposed the death penalty was because he pointed to the fact that its premise of deterrence was false. Indeed, the sheer number of homicides in this country since Darrow’s time proves the validity of his argument.

Where Was I on September 11th?

As a criminal defense lawyer, it is incredibly appropriate that ten years ago on September 11th, I was waiting for a suppression hearing to begin. The hearing was before Judge James L. Kimbler in Medina County, Ohio. I was asking the Court to suppress the confession of my client — a young man with mental retardation. I intended to argue that because he was especially vulnerable to leading questions and the desire to please people in authority, his confession was not knowing, intelligent, and voluntary.

Fast-forward to this year, the tenth anniversary of September 11th. Last week I was trying a case in federal court in Tolddo before The Honorable James G. Carr, former Chief Judge of the Sixth Circuit. All week, as I argued in Judge Carr’s stately courtroom, I was reminded of all those principles which undergird our criminal justice system: the fact that even someone accused of the most heinous of offenses is entitled to a trial by jury, the fact that the accused is presumed innocent unless proven guilty, that the government must prove each and every element of its case beyond a reasonable doubt, and that the accused has the right to confront his or her accusers.

Whatever our role, we all work to protect the criminal justice system. And if we criticize the system, it is because we know that it is the finest system ever conceived by humankind — and that its potential for perfection is boundless.

God Bless America.

The Anthony Sowell Trial: Question 2 – What will happen to his house?

After the verdict came in, people asked this question. As I said on-air when news anchor Sharon Reed asked me this, “I don’t know and it depends.”

You may remember that many of the cross-examination questions asked by the defense of the prosecution’s witnesses dealt with the collection, preservation, and testing of evidence found at Mr. Sowell’s home. Additionally, many of the experts retained by the defense were crime scene experts — although the defense did not call any of them to testify.

Thus, it may very well be that the alleged improper processing of the crime scene will be an issue on appeal. If so, the court may order that the house be preserved.

Meanwhile, the other residents of Imperial Avenue want “the house of horrors” torn down.

The Anthony Sowell Trial: The Five Most-Asked Questions – Questions 1

Some of you have noticed that I have fallen behind in my blogging these past few weeks. Other than my new-found addiction to Twitter (my Twitter handle is @CelebCourt), much of my time has been devoted to serving as legal analyst for Channel 19/43, WOIO, the CBS affiliate in Cleveland, during the Anthony Sowell murder trial. Mr. Sowell was charged in the murder, rape, and mutilation of eleven women.

Last Friday, after fifteen hours of deliberation, the jury convicted Mr. Sowell of all but one of eighty-three counts.

On August 1, the mitigation phase will begin. For the next few days, I’ll blog about the questions most frequently asked on-air, during the live web chats I hosted, and when I bumped into people in the courthouse, on the golf course, or at a Happy Hour.

By far, the most frequently-asked question was “Why is this case going to trial?”

You may remember that when the jury was being selected in early June, the families of eight of the eleven victims sent a petition to the prosecutor’s office asking it to consent to a guilty plea by Mr. Sowell, even if that meant that the death penalty would be taken off the table. The prosecutor never publically responded. One participant in a webchat opined that if these had been the families of white, suburban victims, that their petition would have been taken seriously. And during another webchat, a family member, when I specifically asked if the prosecutor had ever responded privately, said no.

My sense is that the prosecutor’s office felt that if ever there was a case where the death penalty was warranted, this was it.

And from the defendant’s standpoint — and probably, his attorneys as well — there was no incentive NOT to try the case. Mr. Sowell was never going to get bond because this had originally been indicted as a death case, and bond is virtually never given in death cases. He had appointed attorneys, so it wasn’t costing him or his family anything. And even if he tried the case and lost, he might get death anyway — which is exactly what he’d get if he pled. So why not let his very experienced attorneys try the case?

I’ll deal with the other four most frequently-asked questions in later blogs.

The Casey Anthony Trial: Lessons Learned

There have been loads of comparisons between the O.J. Simpson trial and the Casey Anthony trial. Here is the comparison I’d like to make.

If you can afford a knowlegable, committed defense team, you may do well. (Every case, every set of facts, and every defendant are different.) No, I am not saying that you can buy justice. What I am saying is that unfortunately, in courtrooms across America every day, defendants cannot afford dream teams. To be sure, some public defenders and appointed attorneys are wonderful. But not all. And even some retained attorneys are less-than-wonderful. The legal profession is like other professions in that respect. The Constitution guarantees effective legal counsel, but not the best legal counsel available, and the definition of effective is highly deferential.

Cheney Mason is an experienced, accomplished attorney. Jose Baez, although less experienced than Mr. Mason, is extraordinarily zealous. Both had the luxury of concentrating on Casey’s defense. I am happy that she had such superb attorneys. I only wish every person accused of a crime in this country had access to such fine counsel.

The Casey Anthony Verdict: Let’s Respect the Jury!

Ever since the verdict in the Casey Anthony trial was announced, people have been criticizing our criminal justice system in general and the Casey Anthony jurors in particular. But remember, even with its faults, ours is the greatest system invented by humankind. When pressed, many critics cannot come up with an alternative. Vigilate justice? Witchhunts? The old Soviet Union?

And I am especially troubled by the criticism of the Casey Anthony jurors. They have been called ignorant and stupid. They have been accused of rushing to judgment and just wanting to speed up deliberations so they could get home.

WRONG!

These sixteen people gave up forty days of their lives. They were sequestered in a hotel. They worked six days a week. They were in the courtroom for the entire trial. They listened to all the witnesses. They weighed all the evidence. They heard the jury instructions. Other than military service, jury duty is the most important contribution a citizen can make.

If my clients lose a jury trial, I always instruct them that when standing before the judge for sentencing, he or she should say “I respect the jury’s decision.”

Even if we disagree with the Casey Anthony jury’s verdict and exercise our First Amendment right to do so, we should still respect the work which they undertook.

DSK, Casey Anthony, and Boos for Me

Things happen in threes:
This Tuesday, the world saw and reacted to the acquittal of Casey Anthony on all major charges.
Last Friday, New York District Attorney Cyrus Vance revealed that the complaining victim in the case against Dominique Strauss-Kahn had crediblity problems.
And also, last Friday, while I was speaking on behalf of my client at his sentencing following a guilty plea to murder, the family and friends of the victim booed me — in open court.
We’ve gone overboard in our reflexive hatred for all people charged with crimes.
We’ve gone overboard in our rush to judge all people in the media and in the court of public opinion.
We are so consumed with sympathy for the victim — or alleged victim — that we are willing to compromise the rights of the accused.
This is wrong, and we must restore balance and perspective.