Trust Is Hard To Come By


I stormed out of a federal settlement conference the other day uttering intemperate words. The government has seized the life savings of a hard working couple whose son was growing marijuana in their basement. The feds also want to seize the couple's home. There is no evidence to suggest the couple was complicit in their child's activity. None. The pot was in a remote corner of the basement behind a wall. You could live in that house for a decade and never go close to the location of the plants.

But that hasn't stopped the government from launching what in the law is known as in rem proceeding: The government brings an action against the things, in this case the money and the house. My clients must interpose a defense of innocent ownership to get their lives back. You see, not only did they lose their life savings, but the publicity surrounding the arrest and search of the home cost them their jobs. They are living on the edge of economic extinction while the government sits sassily on their money. I am trying to get the money back.

The government's lawyer was smug during the conference. The money can be tied up for years, he reported. I snapped.

"Judge, when I hear my government talk like this I understand why the Murrah building went up in smoke in Oklahoma City, or why folks think it fit to fly airplanes into Internal Revenue Service buildings," I said. "I'm leaving before I do something I regret." I walked out leaving co-counsel to pick up the pieces.

I should not have lost my temper. It was unprofessional, and it did not advance my client's interest, although, truth be told, nothing could have advanced their interests the other day: The government just wants their money, all $500,000 of it. The government doesn't credit the report of our forensic accountant that the sum was legitimately earned.

In the parking lot later, I spoke to the Assistant United States Attorney handling the matter. I apologized for losing my cool. We are old friends, you see, and have handled cases together now for nearly two decades. He knows my weaknesses, a temper primary among them. I know his. It's a marriage of sorts, built, as most relationships between lawyers are in a small state, on trust.

I've been watching television episodes of shows about the criminal law lately, and I am somewhat surprised at the rancor that seems routine. (Rancor, that is, when the adversaries are not bedding one another at day's end.) It makes for interesting drama, but is that how the law is practiced in big cities? Is "fuck you" another form of "good morning?"

Later today, I will appear in a courtroom to withdraw a habeas corpus petition filed by a person serving a life sentence without possibility of parole. I am doing this because the state's top prosecutor has promised to listen closely to claims we have perfected in anticipation of trial. He tells me he is open to the possibility of relief for my client if we present compelling evidence of certain claims. We think we have the evidence to move him. So we will meet early next year to review it all. We trust his sense of fundamental fairness more than we trust the litigation process: Habeas claims rarely succeed; it is comparatively easy to prove that trial counsel could have done a better job, but proving that defective performance mattered is an entirely different thing. Almost any error is harmless to a judge once a person is convicted.

Am I nervous about trusting an adversary? You bet I am. But I also know that brass knuckle warfare is the law's last resort. I know my adversary to be a good and honorable man who takes seriously his duty to do justice. My client and I are gambling that it will be done here. It is a big gamble. I am taking a risk by trusting a person with who I have dealt for many years. Only in the law can this foster something akin to terror.

Comments: (1)

  • But HOW can you be old friends?
    How can you trust the AUSA that is handling the in Rem matter? When he threatens to hold up the money for years? When he "doesn't credit" the forensic accounting? When he uses his power (and never doubt that he is the most powerful person in the room) to win at the expense of fairness? How can you be friends at all?
    That, I just don't get.
    Posted on October 12, 2010 at 4:38 am by Another PD

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