Book Review: “America’s Soul in the Balance: The Holocaust, FDR’s State Department, and the Moral Disgrace of an American Aristocracy” by Gregory J. Wallance

In “America’s Soul in the Balance,” Gregory J. Wallance, a partner at the New York firm of Kaye Scholer, tells the story of a chapter of American hiostory that too few know. He describes the battle in 1943 between four lawyers in the Department of the Treasury and diplomats at the Department of State. The Treasury Department lawyers were outraged at the diplomats’ suppression of graphic, unimpeachable reports of the Holocaust and their blocking the rescue European Jews. None of the lawyers or diplomats involved were Jewish, although the lawyers worked under Secretary of the Treasury Henry Morgenthau Jr. (the father of former Manhattan district attorney Robert M. Morganthau), who was Jewish. But because of his loyalty to and fear of President Frankln D. Roosevelt, was reluctant to join the fight.

The State Department diplomats were members of the upper crust, East Coast elite, and Wallance spends a good deal of time describing the worlds from which they came. Particularly thorough are his examinations of elite private boarding schools — Exeter, Groton, and St. Paul’s — and how these rarified environments shaped the world views of their graduates. Living in an aristocratic bubble, they were inbued with Anglo-Saxon exceptionalism and tended to be anti-Semetic, if not virulently so. The Treasury Department lawyers considered the diplomats to be effectively war criminals and accomplices of Hitler.

Central to the story is FDR, a complex man who saved this country from the ravages of the Great Depression and led it to victory in World War II, but who was as politically calculating as he was charming. The same FDR who befriended and comforted the nation during fireside chats was also the FDR who authorized the internment of 110,000 Japanese-Americans. It is unclear exactly how much FDR knew about the Nazi attempt to exterminate the Jews and when he knew it; but what is eminently clear is that State Department diplmats deliberately squashed the nightmarish news from Europe and were largely successful in the battle with the Treasury Department lawyers. Although Roosevelt approved the rescue of 70,000 Romanian Jews and a few others, he could have done far more and could have acted earlier.

Wallance takes us beyond the statistics of suffering by telling the story of Ruth — a little girl from Romania who lost her entire family and braved unspeakable horrors in order to survive. Today, she lives in Florida and is the author of “Ruth’s Journey: A Survivor’s Memoir,” published in 1996. Wallance alternates the story of Ruth with the chronicle of the battles in FDR’s administration.

Indeed, it was the story of another little girl much like Ruth who inspired Wallance to research and write “America’s Soul in the Balance.” He discovered correspondence of Otto Frank, Anne Frank’s father, requesting a visa to enter the United States. That led Wallance to wonder why a seemingly benevolent country did not do more to stop the slaughter of six million Jews.

“America’s Soul in the Balance” shows that there is no simple answer to that question. Nonetheless, in an era when genocide and crimes against humanity still persist, we must continue to ask it.

Note: This review was published in the December, 2010 edition of The Federal Lawyer. My interview with Mr. Wallance can be heard at http://tobtr.com/s/3575221.

Book Review: “Tilted: The Trials of Conrad Black” by Steven Skurka

As legal issues swirl around media mogul Rupert Murdoch and his embattled News of the World, this is a particularly good time for the second edition of “Tilted: The Trials of Conrad Black” by Steven Skurka to be released.

Steven Skurka is a Toronto-based criminal defense lawyer and a legal analyst for Canadian Television (CTV). He covered the trial of Conrad Black in 2005 held in federal court in Chicago. Black, along with several co-defendants, was charged with multiple counts of defrauding his company, Hollinger International, of $60 million. After a jury trial which lasted approximately twelve weeks, he was convicted of fraud and obstruction of justice. As Skurka covered the trial, he struck up an acquaintance with Black.

Conrad Moffat Black is a Canadian-born member of the British House of Lords. Before his trial, he was the third-largest newspaper publisher in the world. Mr. Black was released from federal prison in the spring of 2012 and has vowed that he will continue to fight to clear his name.

“Tilted” follows Conrad Black’s trial as well as the labyrinthian post-conviction proceedings: his appeal to the Seventh Circuit, the decision by the U.S. Supreme Court to narrow the scope of the honest services fraud statute and remand the case for re-sentencing, the re-sentencing itself, and Conrad Black’s return to prison after being out on appellate bond.

What makes “Tilted” more than just a chronicle of a criminal case ’round and ’round the “appeal-go-round” as Mr. Skurka calls it, are the wonderfully human details which make trials and their aftermath the compelling dramas that they are: the fainting of Mr. Black’s wife at his re-sentencing, the line of prisoners cheering Mr. Black as he is released on appellate bond, Black’s assistant and a defense witness selling T-shirts outside the courthouse which read “Conrad Will Win.”

But if you read nothing else, read the first chapter of “Tilted.” It is a no-holds barred analysis of the American legal system. Some readers might be offended that a non-U.S. citizen is voicing these criticism. Others might feel that Mr. Skurka’s criticisms have particular validity. He expresses dismay at our system of discovery and how information is either not disclosed or not disclosed in a timely manner. He marvels at our rate of overincarceration and our ever-expanding criminal laws. He can’t get over the huge amount of cases which resolve in a plea rather than go to trial. But perhaps his biggest criticism is reserved for the extraordinary sentences someone might receive if he or she goes to trial and is convicted rather than simply pleads guilty. Indeed, the word “tilted” in the title refers to the fact that to Mr. Skurka, the system seems extraordinarily tilted in favor of the prosecution.

“Tilted” is a fun read if you enjoy reading about criminal cases. It is an important read if you care about the future of our criminal justice system.
* You can listen to my interview with the author at http://tobtr.com/s/3404277.

** A version of this review will appear in the October/November edition of The Federal Lawyer.

Piers Morgan Interviews with Robert Blake, Patrick Kennedy, Michael Vick, and Justice Antonin Scalia

Piers Morgan’s show is becoming essential viewing for those of us who follow criminal justice issues. Last week, he conducted a painful, bizarre interview with Robert Blake (It was Blake who was bizarre, and painful to watch!) On Monday, he interviewed ex-Congressman Patrick Kennedy. On Tuesday, he interviewed Michael Vick. And last night, he interviewed Justice Antonin Scalia.

I have a few comments about the Kennedy and Vick interviews because they concerned two issues I am passionate about: mental health and second chances.

Patrick Kennedy has been very open about his bouts with depression, or “Irish flu,” as he and others call it. This interview came on the heels of his cousin Kerry’s being stopped for allegedly driving under the influence and his ex-sister-in-law’s suicide. (Kerry claims that she had a seizure, and this is entirely possible in the wake of former Secretary of Commerce John Bryson’s car accidents caused by seizures earlier this summer.) Patrick becomes fiery and articulate when explaining that mental illness is a medical condition and that it should be treated as such. Since leaving Congress he has reinvented himself and has devoted himself to raising public awareness about mental health. He was a good congressman, but he is an even better advocate for mental health issues.

In part, Michael Vick was on Piers Morgan to promote his new book. Since he was released from federal prison, he has worked mightily to remake and rehabilitate himself. Of all the things he said, what made the greatest impact on me was his description of his ride to prison; he said that whatever the distance, it is the longest ride in the world. Having clients report to prison is an occupational hazard for criminal defense lawyers. Mr. Vick’s words reaffirmed how sensitive I should continue to be during this time to the feelings of the client as well as of his or her family. What Mr. Vick did was horrible, and he readily admits it. But he deserves a second chance.

“Life Among the Cannibals” – Review of Sen. Arlen Specter’s Book

I was in law school during Justice Clarence Thomas’ confirmation hearings. For me, as for many Americans, those hearings were a transformative experience. To this day, some people cannot stomach former senator Arlen Specter for his questioning of Anita Hill. Indeed, the very name of Arlen Specter inspires strong reactions, whether from conservatives blaming him for preventing the confirmation of Robert Bork to the Supreme Court or from the National Assocation of Criminal Defense Lawyers honoring him in 2008 with its Champion of Justice Award.

“Life Among the Cannibals” is a political biography, but, more fundamentally, it is a biography of a senator who was trained as a lawyer, worked as a lawyer, and has never stopped being a lawyer. Indeed, most of the landmark events in this book are connected to the law. Specter quotes his former law partner as saying that Specter will be remembered for developling the single bullet theory as a young lawyer on the Warren Commission and for his questioning of Anita Hill. The senator adds that he will also be remembered for voting “not proven” during the impeachment trial of President Clinton. “Life Among the Cannibals” is an enjoyable and educational portrait of the five-term senator from Pennsylvania and of the intersection of law and politics throughout his career.

Politics drove Specter to write this book. The then 79-year-old senator was defeated in the Democratic primary after having switched from the Republican to the Democratic Party — a move that was consistent with his ideology as well as practical, given the changing nature of the GOP. The very title of the book shows that there is no doubt as to where he stands. It derives from what he observes was the growing and alarming practice of senators campaigning against members of their own caucuses: “And they did it with relish, like cannibals devouring colleagues with condiments.” The opening sentence of the preface continues that theme:

“The United States has provided worldwide negative leadership in amassing gigantic annual deficits and a staggering national debt, resulting in the emergence of the Tea Party, which produced gridlock and a dysfunctional government. European nations followed the U.S. lead in spending more than taxpayers were willing to pay, producing economic crises in Ireland, Spain, Portugal, Italy, and riots in Greece.”

Specter paints in vivid detail the decline and disappearance of moderate Republicans — and moderate Democrats — in the Senate. But he also describes the decline in senatorial collegialtiy in general. This was the man who rode the train with Sen. Joseph Biden and spent time in the Senate gym with Sen. Edward Kennedy. This socializing made them all more productive legislators because their social relationships, combined with common political ground, forged bipartisan compromise and action.

Many of Specter’s actions were courageous as well as touching. When Sen. Robert Packwood of Oregon was virtually abandoned by everyone because of allegations of sexual harassment, it was Sen. Specter’s office that Sen. Packwood’s staff called when they feared that their boss was going to commit suicide — and Specter hurried to Packwood’s office. When Sen. Larry Criag of Idaho was exposed for an embarassing incident in a Minneapolis airport restroom, Specter encouraged Craig to get an attorney and attempt to vacate his guilty plea. And, when Sen. Ted Stevens of Alaska was convicted, Sen. Specter defended him on election on Alaska radio, criticizing the behavior of the prosecutors. Indeed, Specter proved prophetic, given the release this spring of the special prosecutor’s findings of misconduct by Department of Justice prosecutors during the investigation and trial of Sen. Stevens.

A reader will find it impossible to pigeonhole Sen. Specter. Not only did he switch parties, but he has been all over the map when it comes to issues. For example, I found myself cheering his criticism of the treatment of detainees and of warrantless wiretapping, yet groaning over his support for the death penalty. But perhaps it is the confidence that he built during five terms as a senator that led him to march to his own drummer and not feel beholden to anyone. As he notes in the book, Reagan lost Philadelphia by 225,000 votes while he won it by 14,000. And Sen. Specgter had no illusions about the meanness of D.C. . He quotes Harry Trum,and: “If you want a friend in Washington, get a dog.”

Nonetheless, it was sad to read about promises broken and friendships severed after he switched parties. The opening chapter, which tells the story of his last election day, from the time the polls opened until his concession speech that evening, reads like a general’s last battle. Yet, during that final campaign, Specter kept a physical pace that would rival that of a person one-fourth his age. Merely reading that first chapter made me tired!

Sen Specter remains active. He practices law and teaches a course on the relationship between Congress and the U.S. Supreme Court at the University of Pennsylvania Law School. Meanwhile, I hope that he will also pursue a cause he has long advocated: the televising of Supreme Court proceedings.

** A version of this review will appear in the September edition of The Federal Lawyer.

A View From The Hague: Charles Taylor, John Edwards, and Hosni Mubarak

Last week, I attended a conference of the International Bar Association at The Hague or Den Hagag. As an attorney, it was especially meaningful to visit this city which is known as the legal capital of the world. It has been given this title because it houses five international courts: the Permanent Court of Arbitration, the International Court of Justice, the International Criminal Tribunal for the Former Yugoslavia, the Special Tribunal for Lebanon, and the International Criminal Court (ICC). And as an American attorney traveling aborad, it was particularly significant to witness three legal milestones — the sentencing for former Liberian president Charles Taylor, the verict in the trial of former U.S. presidential candidate John Edwars, and the verdict in the trial of former Egyptian president Hosni Mubarak — while in The Netherlands.

Part of the conference included a tour of the International Criminal Court, plus presentations by court officials. Coincidentally, our tour took place at the same time as the sentencing of Charles Taylor. I hold a special place in my heart for Liberia because in 2009, I traveled there on a training mission for defense lawyers sponsored by the National Association of Criminal Defense Lawyers and the United Nations Commision of Drugs and Crime. Although that proceeding was held in a different building than the one we saw, I will always remember where I has on the day Charles Taylor was sentenced. It’s a bit like answering the question “Where were you on 9/11?” (I was in court waiting for my client to appear for his suppresion hearing) or “Where were you when JFK was shot?” The sentencing of Taylor is hugely significant. This is the first time an international tribunal has tried and convicted a head of state. Time will tell if the U.S. joins 121 other countries in signing the Rome Statute, the document establishing the ICC. However, as the President of the ICC, Judge Sang-Hyun Song, told our group, under the Obama administration, there has been a “180 degree” change in the attitude of the U.S toward the tribunal.

The second legal milesonte — the verdict in the trial of John Edwards — had a different tenor. It was early evening, Central European Time, when the news broke that the jury had a verdict. CNN International suspended its regular programming for what seemed like hours with wall-to-wall coverage. All sorts of experts tried to predict the verdict, and then interpret the verdict. I would never minimize any trial, especally the stress undergone by a defendant and his or her family, even with an acquittal. But the fact that John Edwards was being prosecuted for violating byzantine campaign finance regulations, allegedly to keep his mistress and their love child secret, all seems tawdry and rather petty at a time when the Eurozone is in freefall and civilians in Syria are being massacred. I am a news and legal junkie, but even I was relieved when Richard Quest interrupted the Edwards’ coverage at 21:11 CET and CNN returned to regular programming.

The third legal milestone — the verdict in the trial of Hosni Mubarak — was an interesting contrast to the sentencing of Charles Taylor. Mubarak, unlike Taylor, was convicted by a court in his home country. And unlike the verdict and sentencing in Taylor’s case which was greeted with almost universal acclaim, the verdict in Mubarak’s case was greeted by protests in Tahrir Square. Some thought that Mubarak should have received the death sentence. And others believed that the verdict was a travesty because Mubarak’s sons and the governmental officials on trial with him were acquitted. The ICC will cede jurisdiction when the host country is able and willing to try a case. But the allegations that prosecution witnesses in Mubarak’s trial were intimidated from testifying underscores the reasons for an international tribunal and the protections that it can bring.

Amidst all this, Britain began celebrations of Queen Elizabeth’s Diamond Jubilee. When I returned to U.S. soil and was sitting in one of the Delta lounges in the Atlanta airport, the TV was tuned on to the firework display outside Buckingham Palace, and the volume was on high so all could hear. (The adjacent TV with coverage of Tiger Woods’ 23rd PGA Tour title was on mute.) Viewership of the roayal festivities has been stratospheric. All of this is evidence of American obsession with pomp and circumstance, as well as of the complex relationship we as a former colony have with England. Perhaps it is also evidence of our desire for escape…

Mike Wallace: His Battle with and Victory over Depression

When I learned this afternoon that legendary journalist Mike Wallace had died, my first thought was that a giant had died. But almost instantaneously, I realized that I most admired Mike Wallace for how open and honest he was about his battle with depression.

Mr. Wallace had written and consented to interviews about his depression. I admire anyone who is willing to share his or her experience with mental illness in order to help others. Yet I particularly admire public figures like him who cast aside the stigma and use their stature. For men who suffer from depression, this must be especially difficult because of all the macho expectations we heap upon them — or the macho expectations they feel they must fill. And for men in high-profile positions (and this goes for women, too), the burden of keeping up appearances must be huge. There was something at once poignant and ironic about the take-no-prisoners Mike Wallace, the feared and fearless investigative reporter from “60 Minutes,” confessing his vulnerabilities.

Did his revelations lessen him? Did they detract from his achievements? Not by any means. Indeed, it all made him seem more fully human. The fact that he initially sought help prevented him from spiralling to a professional bottom and allowed him to continue his work. As importantly, it made him emotionally available to his family, friends, and all who cared about him. The fact that he shared his illness and recovery with the world undoubtedly saved lives, careers, and relationships.

Book Review – Capitol Punishment: The Hard Truth about Washington Corruption from America’s Most Notorious Lobbyist ” by Jack Abramoff

As the old saying goes: “The bigger they come, the harder they fall.” Jack Abramoff was huge, and he fell hard. Very hard.

“Capitol Punishment” is the story of the rise, fall, and perhaps, redemption of Beltway Lobbyist Jack Abramoff. Abramoff was an uber-successful, uber-connected man who owned the corridors of power during the eighties and nineties. His autobiography, released after he served almost four years in prison, begins with his childhood in Southern California through his years at Brandeis, and his rise to political prominence as the national chairman of the College Republicans. These are great coming-of-age stories — about his golf lessons with Arnold Palmer, his discovery of orthodox Judaism, and his against-all-odds rallying of college Republicans in the then-liberal bastion of Massachusetts.

Largely unknown to the general public is the fact that Abramoff started out as a screenwriter and producer, and a fair amount of the book is devoted to the financing, filming, and release of the adventure piece “Red Scorpion” set in Namibia. The production of the film itself is a small-scale international thriller.

In search of a more conventional and stable livelihood to support his family, Abamoff, quite logically, hoped to take advantage of the political connections forged during his college days and began work as a Washington lobbyist. The rest, as they say, is history, some of it Shakespearean in its scope.

“Capitol Punishment” is an insider’s view into what Abamoff paints as the culture of corruption which envelops Washington. In short, as he grew wealthier and more powerful, he also grew sloppier and more over-extended. Although he pled guilty in two federal cases — honest services fraud, tax fraud, and mail fraud in DC, and conspiracy to commit wire fraud and mail fraud as well as a separate count of wire fraud in Florida — Abramoff does not unequivocally accept full responsibility for his actions in his book. (But then, perhaps he doesn’t have to; he has already served his prison sentence.) He correctly notes that many federal crimes lack the element of intent, and that he largely pled guilty on the advice of counsel who carefully reviewed the odds of prevailing at trial.

Most significantly, Abramoff points out that “everybody does it.” For instance, he describes the “hypocrisy” on the part of the senators who were investigating his alleged midconduct:
“The worst part for me was the hypocrisy of the whole thing. Most of these senators had taken boatloads of cash and prizes from my team and our clients. I stared stonefaced at [Senator Ben Nighthorse] Campbell as he hurled invectives at me. I wondered how he’d react if I reminded him about the twenty-five thousand dollars in campaign checks I delivered to him during our breakfast meeting at posh Capitol Hill eatery La Colline the morning of April 23, 2002. I’ll never forget that breakfast. After I handed him the envelope full of campaign contributions, he let me know that my clients would be treated well by his Indian Affiars Committee…. Each member of that panel had the same skeletons in their closet I did, or worse. But no one was grilling them.” P. 233.

On some level, “Capitol Punishment” is about settling scores. For example, Abramoff’s descriptions of Newt Gingrinch and John McCain are scathing. However, Abramoff is generous in his praise of others, like Tom DeLay; the actor Kevin Spacey who portrayed him in the film version of his life “Casino Jack;” his attorneys Abbe Lowell, Pam Marple, and Neil Sonnett; and even members of the U.S. Attorney’s staff who prosecuted him. He graphically describes the people whom he believes betrayed and abandoned him when he came under investigation. In other words, there’s not a lot of middle ground with Jack Abramoff, which is one of the reasons why he is such a complex and fascinating character.

The description of his sentencing and eventual incarceration at Cumberland Correctional Institution in Western Maryland is revealing and heartbreaking. (Attorneys who have clients facing federal tinme may want to copy this section of the book and share it with them.) Now the once-powerful lobbyist is like any other inmate facing the pain of separation from his family and what seems like the inexplicable prison bureaucracy. Whatever you might think of Jack Abramoff, as portrayed in this book, his love of family and his faith are deep and abiding.

The last chapter is what separates “Capitol Punishment” from other autobiographies. In it Mr. Abramoff has a host of proposals for “clean[ing] up the swamp we call our nation’s capitol.” Among those proposals are term limits for legislators and a lifetime ban for congressional employees from working for any entity which lobbies the government.

“Capitol Punishment” is a good read. It’s at once gossipy and educational. And as a criminal defense lawyer, I’m all about second chances.

Note — a version of this review will appear in the June 2012 edition of The Federal Lawyer

Book Review – “Quest for Justice: Defending the Damned” by Richard S. Jaffe

“Quest for Justice” by Richard S. Jaffe is certain to join the ranks of recent criminal defense nonfiction classics such as “Dead Man Walking” by Sister Helen Prejean; “An Innocent Man” by John Grisham; and “Actual Innocence” by Peter Neufeld, Barry Scheck, and Jim Dwyer. “Quest for Justice” belongs in this company because it is every bit as well-written and powerful as these three books, and because Jaffe is a giant in the field of death penalty litigation.

“Quest for Justice” describes some of the death penalty cases that Jaffe has handled in the state of Alabama. Jaffe has worked on more than sixty death penalty cases, in addition to countless other major felonies. Two of his clients were profiled in the Broadway play, “The Exonerated.” and Jaffe also represented Eric Rudolph, who was charged with several abortion clinic bombings in the South, as well as with the deaths in the Olympic Park bombings during the 1996 Olympic games in Atlanta.

Unlike many books by trial lawyers, “Quest for Justice” is not mostly about the lawyer; rather, it is about the clients — Jaffe’s ego is absent. His book gives us only the basic biographical details and quickly launches into the stories of his death penalty cases.

Jaffe is a warrior without being self-righteous. He is against the death penalty, not only because he believes that it is immoral, but because it does not work — it never has and never will deter murder — and Jaffe makes a cogent case for this view.

If, like me, you read many books about our criminal justice system, then, after a time, you think you’ve read it all — stories about jailhouse snitches; faulty eyewitness identifications; prosecutors who withhold evidence; defense attorneys who are ineffective because they are inexperienced, unmotivated, or overwhelmed; a death penalty lottery in which a disproportionately high number of African-Americans lose; mentally ill defendants who are mistreated or undertreated by the system — the list goes on. What makes “Quest for Justice” stand out, and be more than a catalogue of the deficiencies in the criminal justice system or a collection of war stories, is that it provides a good deal of explanation and analysis of how the criminal justice system works — or doesn’t work. And Jaffe’s explanations and analyses are neither tedious nor patronizing.

Moreover, the characters in “Quest for Justice” come alive. For me, the most colorful — and frightening — character in the book is Alabama Judge Jack Montgomery. He is an old-school judge who figured in many of Jaffe’s cases. Judge Montgomery demeaned both defendants and their attorneys, and he made no effort to hide his prejudices. As the years went by, it became apparent to the courthouse regulars that he was not merely offensive, but unbalanced and crooked. The judge even pulled a gun in open court on Jaffe, and had to be wrestled to the ground by his staff. He was finally convicted of soliciting and taking bribes.

If you do not have time to read the entire book (although it is well-written, it is not a light read), read the chapter on Jaffe’s representation of Eric Rudolph. There you get a glimpse of Jaffe’s commitment to his client as well as insights into the mind and motivation of someone accused of the most hideous of crimes. Jaffe spent countless hours talking with Rudolph and learning of such things as the death of Rudolph’s father, the suicide of his former girlfriend, his experiences in the Army, and his mother’s religious influence on him. Jaffe’s diligence in doing this research was vital to representing Rudolph effectively. Ultimately, Rudolph pled guilty and was sentenced to life in prison without the possibility of parole.

Criminal defense lawyers are constantly asked, “How can you defend those people?” Jaffe’s comment about Eric Rudloph’s case provides the perfect answer:
“Eric Rudolph embodied one of the reasons why I do what I do. Representing the most unpopular and despised of our society is, in my opinion, the hallmark of a true criminal defense lawyer. John Adams did this when he defended the British soldiers who shot their weapons openly into the crowd during the Boston Massacre. When advocating for someone this unpopular we are also representing our profession, which is committed to safeguarding the rights of the least among us and the constitutional protections that everyone has, no matter what he is charged with or what his beliefs are.”

“Quest for Justice” can be read and enjoyed by lawyers and non-lawyers alike. But, more importantly, it should be read by everyone who cares about the criminal justice system.

Note: A version of this review will appear in the May 2012 edition of The Federal Lawyer.

Second Note: Mr. Jaffe and I both serve on the board of the National Association of Criminal Defense Lawyers (NACDL).

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.