2011: A Report From The Trenches
I will count 2011 a good year, despite the dire economy. It was a year of focusing, getting lean, re-examining priorities. As 2011 ends, I am uncharacteristically optimistic. Despite a world of trouble, the sum of it all seems to represent a gathering storm. There’s a certain energy in the air. Where will lightning strike?
My clients and I had a generally good year in the law’s trenches. I was reminded of that by year-end visits, calls and holiday cards. Two brothers walked away from a charge of murder, and I had the thrill of driving them home, still dressed in their prison jump suits. A man accused of a Romeo and Juliet sex offense sat tensely beside me as we picked a jury in his case. But when it came time to call the first witness, the state dropped the charges. And a teacher accused of falling in love with a student saw his case dropped. There were smiles in Danbury, New Haven and New London.
Another client accused of rape and assault was offered a plea deal on the eve of trial that was too good to pass up. He will soon be free, although he spends the new year behind bars. But far too often, a court system seemingly unable to manage its docket left cases uncalled for trial. Some clients waited this year all year long for jury calls that never came.
There were sorrows this year, to be sure; there are every year. Two eyewitnesses put my client at the scene of a point-blank shooting, the victim shot in the back of the head in a dispute that was not even worth a fistfight. My client was all of nineteen when the shooting occurred. A jury found him guilty, but at least one of them, who has since become a good friend, was shocked when a judge sentenced him to a term of imprisonment of 45 years, waste heaped upon waste. We now are at work on the appeal of this conviction.
The terrain in federal civil rights remains grim. The courts have so expanded qualified immunity that it remains difficult to get a case to a jury. Summary judgment and interlocutory appeals are the norm. However, year’s end brought us a welcome win in a First Amendment case involving a fired police officer. The District Court declared the case fit for trial. We are eager for trial, but expect the defendants to shuck and jive their way to the United States Court of Appeals for the Second Circuit to avoid a reckoning.
As the year ended, another client retained us to file a petition for a writ of certiorari to the United States Supreme Court in an employment case. My firm has been involved in a couple of cases finding their way onto the docket of the high court. The odds are always against a petitioner in getting Supreme Court review; but this case should be heard by the court. The employer sought applicants for a job. When the first pool of applicants did not reflect the racial mix it sought, it repeated the search all over again. Guess what? Same result. So the employer did not hire anyone. The District Court concluded that since no one was hired, there was no adverse action. When I asked the Second Circuit panel who in their right mind twice opens applications for a job they did not intend to fill, the panel ducked the question. Here’s to hoping the Supreme Court will answer it.
When the State of Connecticut helped engineer a coup replacing an elected school board in Bridgeport with appointed board members, I was asked to represent two displaced elected officials. We pushed the case to the Connecticut Supreme Court in record speed, arguing it in October. The court has yet to rule. My clients would be right to feel betrayed. They were elected to office. A bloodless coup took those offices away from them. They went to the highest court in the state for relief. Justice delayed is justice, and in this case, a franchise, denied. And we await the decision of a trial judge in a habeas corpus matter involving the conviction of a whistleblower in the state’s university health care center: her colleagues hacked her computer to gather evidence to use against her. Her supervisors knew pirated evidence was used. So did the prosecution in a case unrelated to her job. Why was this prosecution permitted to go forward with stolen evidence? Has the state no shame? (It’s a rhetorical question; of course it has not shame.)
Increasingly, I represent police officers, correctional officers and public employees in their labor-related disputes. I saved one New Haven cop his job when the chief wanted him fired. Cross-examining the chief was a shock: he really was naked. Not long afterward, the chief resigned. Are those my footprints on see on the back of his pants?
The economy remains a challenge. There has been no recovery during the past three years among the clientele I serve. A year or so ago, there almost seemed to be a discernible thud in the economy as folks ran out of money, credit and equity in their homes. Firms throughout the state have downsized, and so has mine. Still, we remain besieged by requests for help, but now every third caller wants to know if we will take their case pro bono. I wish we were able to do so. In years passed, I was able to give several months a year of time to nonpaying work. I could not do it this year. As a firm, we are leaner, and, in a sad sense, meaner.
It was a good year for writing. Taking Back the Courts was published in June. I am submitting the edited draft of a companion volume on jury trials to my publisher on Tuesday -- tentative title: Juries and Justice. Then it’s back to work on a piece of fiction I plan to finish by summer’s end. Writing somehow seems like a balm that makes it possible to walk back into the court’s buzz saw every week.
I blogged less this year than in years past. There’s only so much time. Plus, I’ve questions about the genre I can’t quite resolve. I cut loose from the blawgosphere earlier in the year without regret. There’s a Lord of the Flies quality to it. In the war of all against all to be first, snarkiest, best connected, and most, well, ... just what exactly?, a whole new herd has taken shape. I hear the distant hoof beats from time to time, stomping about one thing or another. But I hear it less as time goes by. May 2012 yield silence.
So this year in the trenches has been a good one. I look forward to more fights in 2012. On the docket? Trials involving child sex abuse, child pornography, drugs -- cocaine and oxycodone, Internet phishing, parental alienation, a probate war, murder, police brutality, false arrest and the right to freedom of speech. I’ll be standing next to the accused or the outsider. Give the outside in any fight; I grew up on the wrong side of the tracks.
So I am utterly delighted with the Occupy movement and protests around the country. Nearly half the country lives below the poverty line. Millions of Americans have dropped out of the labor force. The rich are getting richer and two party system is just serving up the same old gruel. Standing on the outside looking in feels like getting a sneak peak on the secret levers of history. I don’t know what the future holds, but I hope it hope it looks different than the past. I like the view from my perch, and I like representing David against the various Golatihs in our midst: It’s the only place I am comfortable.