SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia Criminal Defense Forum and DUI lawyer Jonathan Captain. We're here to regularly present you information and ideas for beating your prosecution as best as possible. Now for your host, John Captain.

SPEAKER_02 0:17

Hello, everybody. This is John Captain Beat the Prosecution. I am a criminal defense and DWI defense lawyer in Fairfax, Northern Virginia. I'm sorry, give me a seat belt to control myself. Every one of my guests have been the criminal acronym in their area, including Ernie Lewis, my guest today. Let me tell you something. When I first saw Ernie Lewis, or what I call Macon at the airport in Atlanta, that was the trial practice institute of National Criminal Defense College, which usually took place at the time in Macon, Georgia, at the Mercer Law School, it was Hurricane Downstore at an airport hotel. When I first walked in and met Ernie, I think that was for our section, maybe about dealing with uh client interviews uh early on. I saw this really mild-mannered guy, so it seemed, and then he opened up his mouth, and I heard a powerhouse, almost like my teacher, Steve Wrench. Uh he's similar in that way, and I'm sure Ernie knows him. Ernie, please introduce yourself. And since I mentioned Steve, please tell everybody if you know Steve.

SPEAKER_01 1:21

Um I am Ernie Lewis, and I am in Frankfurt, Kentucky right now. And I met Steve Wrench when he first came to the Kentucky Public Defender Conference, probably 1978 or 79. Uh, I learned about the Wrench book, and I began to use the wrench book, and Steve Wrench was a master teacher and gave so much to public defense over the years.

SPEAKER_02 1:48

Now, of course, this interview is about you. I just happened to have thought there maybe were some parallels. And so since you know Steve and maybe you agree with me when you first see him, uh, until he opens his mouth, until you've heard of him, you really don't know the wallop he packs. Is is that the same thing about you, or at least when you were trying cases?

SPEAKER_01 2:08

Um I don't know about the size of the wallop. I I've never been compared to Steve Rynch, but Steve was Steve was just a master teacher. I would love to have seen him in trial. He used to come to Kentucky's Trial Practice Institute, which was fashioned after Macon, after Ed Monanhan and I both went to Houston to to what was then called the National NCCD. It reconstituted when it moved to Macon. And uh uh started seeing Steve. He was willing to come to Kentucky to a place called Fawbush, uh starting in about 1984, and he came for many, many years to teach Kentucky public defenders. Um Steve, Steve indeed was a powerhouse, used to lecture all the time on either theory or closing argument. And he did a masterclass of it.

SPEAKER_02 3:04

Ernie, what brought you to criminal defense? What brought you to public defender work? What made you stay a public defender for so long? When did you retire from public defender work? And what did you do after that?

SPEAKER_01 3:17

Yeah, that's a lot of questions.

SPEAKER_02 3:19

It's just chronology.

SPEAKER_01 3:20

Yeah, I'm gonna take I'm gonna take you back to 1969. Um, I was a child of the 60s. Um, I was in college and Vietnam was raging, and I moved from being a conservative to being becoming opposed to the war, and um decided I wanted to go into VISTA rather than Peace Corps. Initially, I wanted to go into Peace Corps, so I went into Vista uh for a year and was draft deferred during that year and saw, this was prior to the Legal Services Corporation, saw a VISTA lawyer who was paid the same amount I was, $180 a month, uh, to service uh to give uh legal services to poor people. And I saw the power of um of law to bring justice to poor people, and decided at that point that I wanted to uh become a lawyer, a poverty lawyer is what I told my draft board when I applied for a um a deferment to go to divinity school. I said, my ministry is going to be a as a poverty lawyer, and they bought that to my to my surprise, and so I went to uh Vanderbilt Divinity School and then went to Washington University Law School. My then wife got um into the University of Kentucky Medical School, so we moved to Lexington, Kentucky for my third year. I became there, there were no legal services officers then in Lexington. Uh so uh nearby was Frankfurt, Kentucky, where there was a new public defender agency called the Office of Public Defender. And I went over there in 1976, and uh for nine months I was a law clerk for the uh Office of Public Defender. There was a an appeals branch. Uh OPD did all the appeals for um for Kentucky at the time, for poor people at the time, and I fell in love with criminal defense doing uh criminal appeals. So I got a job out of law school, started as as an appellate lawyer in 1977, um to to backtrack just a year. Uh in 1976, Kentucky passed the death penalty. Uh Furman had, of course, gotten rid of the death penalty in 1972.

SPEAKER_02 6:14

By the Supreme Court.

SPEAKER_01 6:15

By the Supreme Court. So instead, Kentucky decided to have a mandatory death penalty, and for a few years we had a mandatory death penalty, like just like they did in several other states. That was declared unconstitutional. Um, and so in response, I think it was Godfrey, but it that doesn't jump to my mind. But in response to that, in December, special session, December of 1976, after the mandatory death penalty was declared unconstitutional, they went in and fashioned their death penalty, just like Greg versus Georgia said, was constitutional. So I even though I was an appellate lawyer, um because we were charged with doing providing criminal defense to the whole state, um, and we had this new death penalty, I became involved deeply with uh with death penalty defense. I began to try. John, I tried my first case, first case, um right within weeks after going to Houston. I didn't know how to get a subpoena. I didn't know how to conduct voir deer. Uh I didn't know how to the first thing about trying a case, but my agency sent me to Houston. I don't recommend this, by the way. Sent me sent me to Houston, and I came back and tried my first death case uh in a case involving Robert Martin. And uh we avoided the death penalty. I'll never forget a judge who became a Supreme Court judge, uh justice called me up to the bench at the close of the Commonwealth's case and said, now you're supposed to move for a directed verdict of acquittal. So he sort of guided me through this death penalty trial, and we ended up getting ultimately getting a 30-year sentence for the young man.

SPEAKER_02 8:20

Okay, let's let's make sense of this.

SPEAKER_01 8:22

Yeah.

SPEAKER_02 8:23

You you were co-counseling or not?

SPEAKER_01 8:25

No, I was first chair.

SPEAKER_02 8:27

And who was with you in the courtroom?

SPEAKER_01 8:29

There was a local public defender who was a private lawyer. Kentucky at the time paid woeful amounts of money, not only for public defense, but particularly for the death penalty. I believe he was getting something like a maximum of $3,000 for doing a death penalty case. So uh I, because I was the expert from the Capitol, came out to far western Kentucky, came out and did uh, and it was in Madisonville, Kentucky, and did that death penalty case. And over the next six or seven years, while I was still an appellate lawyer in Frankfurt, uh I probably handled another six or eight death penalty cases. Handled one of the first uh cases on appeal, Ed Monahan and I handled a case involving Eugene Gall, who was sentenced to death. Not we didn't try it, but we handled it on appeal and started handling that case in 1978. Um we finally got it reversed by the Sixth Circuit some 22 years later in 19 or in 2000.

SPEAKER_02 9:46

Well, you know I want to get to that, but I I want to get back to that trial you had. We avoided the death penalty. Okay, so the co-counsel you're with, he didn't know to tell you to uh any motions to make it trial. And so how did you avoid the death penalty if you were so woefully unprepared? And how did you finally get prepared to do trials?

SPEAKER_01 10:07

Well, I I prepare I was prepared to do trials by going to to NCDC or NCCD is what I'm telling you. I was trained by some wonderful people. Um I'm Racehorse Haynes and Race and uh uh Daryl Dansler, who became the dean, as you know, and Kat Bennett on Vordeer.

SPEAKER_02 10:31

Oh yes.

SPEAKER_01 10:32

Yeah, so we you know I learned how to do a rudimentary cross, and so I didn't know enough to be stupid, I didn't know enough to have bad habits yet. I just played it by the book and okay and tried it according to the book um that NCCD taught me. Now, one thing I did creative, remember I had gone to divinity school just a few years prior to that. So I thought, okay, if if uh this is a moral decision, which the Supreme Court of the United States said the death penalty decision was, later later said to be a reasoned moral decision by Justice O'Connor. If it's a moral decision, it's just like an expert witness. So I called a Southern, he was in at the Southern Baptist Seminary in Louisville, a name Glenn Stassen, and said, I want to call you as an expert witness to teach the uh this Western Kentucky jury, highly religious part of Kentucky, very Baptist, uh, about making an ethical decision. And the justice allowed me to do that. Later, uh this was declared, you know, you couldn't you couldn't put on an ethicist, but I put on an ethicist and uh at the penalty phase, and he talked about um how important it was to treat the stranger, which my client was. Uh he was a young black man, and he went over the ethics of race uh in America and giving the death penalty to to people of color uh more than than white persons. And I don't remember the other major points he made, but I, you know, frankly, I thought his testimony went over really, really well. They came back with a harsh sentence, not the death penalty, but like 40 years or something, and um took it up on appeal. We had challenged the confession. I was in pellet law, you remember, so I knew about challenging uh confessions, won the case on appeal, the case was sent back and got 30 years on on the retrial. So that was you can look it up, Martin versus Commonwealth.

SPEAKER_02 13:06

Okay, so you pulled off at least two things with that trial. First, you got the ethicist in there, and later on that was ruled you can't do that for later cases. And the second thing is uh you started going there, but I don't think you fully went there. You're talking about the ethicist was testifying about what dealing with the stranger and then looping in with when the stranger is uh is a black person, even or African-American.

SPEAKER_01 13:30

No, that's exactly right. Those were categories.

SPEAKER_02 13:34

Something more about that, about dealing with the stranger than you've already told us about.

SPEAKER_01 13:39

Yeah, the the the uh my client was a young black man who um was a wall from the military. So so he on Christmas Eve broke into uh an old black woman's house. Um she was in her 90s and he burglarized and strangled her to death and robbed from her. And um, but he was he was you know the stranger in the community, and and what my ethicist said is as an ex-slave, as a descendant of slaves, he was he was a stranger, and we now you would look at it when you were analyzing immigration, right? For example, how do how does an ethical person treat immigrants? Well, he viewed a black person in America similarly, and um so he that was an that was a second ethical category uh that he used, and the jury was persuaded.

SPEAKER_02 14:46

And and so uh this was a conservative jury, but also probably uh an overall uh or overwhelmingly religious jury, right?

SPEAKER_01 14:56

Probably. I mean, I didn't do a demographic study of that, but if you know Western Kentucky back uh almost 50 years ago, um it was it was a highly religious and mostly Southern Baptist uh veneer. And it's also a fairly racist part of uh part of Kentucky.

SPEAKER_02 15:17

Okay, this was what what part geographically of Kentucky? Southeast or what?

SPEAKER_01 15:21

Southwest.

SPEAKER_02 15:22

Southwest.

SPEAKER_01 15:24

So if you were to go due south of where we tried this case, you'd probably end up in Jackson, Mississippi.

SPEAKER_02 15:31

So you're not a native Kentuckian or whatever they call themselves? Am I right about that?

SPEAKER_01 15:37

That's right. I grew up in Missouri.

SPEAKER_02 15:40

Okay. And what what kind of um what kind of divinity school did you go to? Was it a uh a certain uh branch of uh Protestantism?

SPEAKER_01 15:49

Uh Vanderbilt is is um was not associated with a denomination. It's it it would be like Harvard or the University of Chicago or Yale or any of those divinity schools. Um my dad, by the way, was a Southern Baptist minister, so this I came by this pretty honestly.

SPEAKER_02 16:09

Okay, so he was Southern Baptist, and did you end up becoming a man of the cloth?

SPEAKER_01 16:13

No. No, uh when I got out of divinity school, uh, as I mentioned, I was also a draft dodger. So um I I get out of divinity school, they ended the draft. Um, Melvin Laird is I believe was an age.

SPEAKER_02 16:32

Yeah, makes a man, right?

SPEAKER_01 16:34

Yeah, and so the draft ended in 73. I get out of divinity school in 74, so I don't have any draft worries now. So I went right into law school with the intent, just like I told my draft board, of becoming a poverty lawyer, and that's what I did.

SPEAKER_02 16:51

So so was Vista at the time accepted as uh as a substitute for going over to Vietnam? Southeast Asia?

SPEAKER_01 16:59

I got a deferral for one year, and then in 1970, Richard Nixon declared VISTA, quote, no longer in the national interest and took away the draft deferment for people going into VISTA.

SPEAKER_02 17:13

That's Nixon. Okay, going back to that chal I had where you avoided the death penalty in the first place. So uh what did you do yourself that worked to avoid the death penalty, even though there was so much you didn't know? And uh where did the funding come for me for you to go to NCCD?

SPEAKER_01 17:31

Yeah, the the um I mean I just like they would now, they taught me theory. So I had a pretty good theory of the case. I had a I did a vigorous motion practice. Uh so um that gave me uh a grounds for appeal. Um but the main thing was was I put on evidence in the penalty phase about who he who he was. He didn't have a criminal record, he had been in the military, he was he went A-WOL um and put on you know the ethicist and got a sentence less than death.

SPEAKER_02 18:11

Oh wait, the the ethicist you put on on that same trial you're talking about, your first death penalty trial?

SPEAKER_01 18:18

My first trial, yeah.

SPEAKER_02 18:19

Your your first trial was yeah. I don't recommend this now, but you gotta remember what does the Arnolda character say in uh crimes and misdemeanors? Uh comedy is uh is tragedy plus time. So we have the tragedy of having your first trial for time, at least you avoided the death penalty. Okay, so if um if you had to learn that uh a lot of this from NCCD, what was lacking in training in the Kentucky public defender system? Who financed you to go to NCCD? And what was your role in uh in getting uh things up to speed with training in the Kentucky public defender system?

SPEAKER_01 18:59

Yeah, see, I was I had a firsthand seat to the development of a public defender system in Kentucky. Um when I started in 1977, the agency had only been um in existence uh for four years by that point. And most of the counties in Kentucky were um assigned counsel. And so we had a central office where there was an appellate branch, and I was part of that. We as part of our duties, we also reviewed um vouchers. I mean, they would come in, uh assign counsel, these private lawyers out in Kentucky that had been doing this prior to the existence of our agency, uh, they would they would do uh they would do an invoice. Uh the the trial judge would be uh would sign the invoice and then they'd send it in Frankfurt. We in the in the appellate branch would review it, and then the um the trial lawyer would get paid. Um that was uh our then public chief public defender got an LEAA grant, law law enforcement administration grant, to create full-time offices in eastern Kentucky. That's Appalachian, Kentucky. As a Virginian, you know about Appalachian, Kentucky. And so so began the full-time system. Um we then created out of the appellate branch something we called the local assistance branch or the trial services branch, and that trial services branch not only did appeals, but we also did death penalty work because remember, you nobody was going to do uh take a death penalty case for $3,000 and didn't. And so we were providing that service. We were we were providing, we then began training. And Ed Monahan, who succeeded me as public advocate when I retired in 2008. Late, I'll talk about that later, but um he began to be, he was asked to be the trainer uh for um Kentucky. And so he began to put on training. He and I went to Houston. We decided, okay, that's the way to train uh defense lawyers. Because when you're an appellate lawyer, particularly in a nascent system like we had in Kentucky, all you see are mistakes, mistake after mistake after mistake. So what we decided is training was the way to go. And we started this trial practice institute that's still in existence. I trained there from 1915. Until 2015 or 16 was on faculty every year. I was on faculty of NCDC from 85 until 2015. Kat Bennett came to one of our uh one of our trial practice institutes and and uh told the dean uh to ask me to to be on on the faculty of N C D C and I started what an honor for for Kat Bennett to be uh recommending you and for for our listeners.

SPEAKER_02 22:30

Uh Kat Bennett was a great uh jury trial consultant. Unfortunately, she died from cancer, I think, soon after before I became a public defender lawyer in 1991.

SPEAKER_01 22:40

Uh way too young. She she uh she was a gift to all of us and uh and taught us all about not only about being a public defender, but about being a better human being.

SPEAKER_02 22:54

Oh yes. Uh I remember buying a uh a t-shirt uh in honor of her. I don't know if it was it it was maybe called the Cat Bennett uh uh uh trial competition for law schools, and it had her picture on there with I think one or more flowers, and it said, give people their flowers in this lifetime. You know, I was how old was I when I got that t-shirt? I was maybe about 29 years old. Uh I needed that, Ernie. I was thinking too much with my head intellectually about how there's so much human rights violations and so much social injustice. I I didn't think enough with my heart aspect of it about why I was doing what I was doing. The heart was there, but my heart had to come out even more, like what Kat Bennett said about the flowers. Yeah.

SPEAKER_01 23:41

Yeah.

unknown 23:42

Yeah.

SPEAKER_01 23:43

So I taught with her until until her passing. Robert Hershorn was, I believe, her husband.

SPEAKER_02 23:53

Her husband, right?

SPEAKER_01 23:54

I taught with um Roger Dodd and and Larry Posner and um just giants in in the field. And so I learned so much over the years um about being a trial lawyer. So when in 1983 I left Frankfurt, I was asked to go start a public defender office in a place called Richmond, Kentucky, and I ran that from um 1983 until 1996, ran it for 13 years. Um, we had a four-county area and and I did just trial work, um, did a lot of training, did a lot of trials, represented people on uh charged with capital offenses and serious felonies. And then Governor uh Paul Patton, the governor of Kentucky, appointed me in 1996 to be the Kentucky public advocate. Um, and that was to run the agency. By that point, remember when I started with the agency, most of our counties were assigned council. Assigned council was eliminated in 1980 when we had a commission. Commission decided to go with contracts, so we had a contract system. When I became public advocate in in 1996, 47 of our counties were full-time. So our full-time system began to develop. Um, and my goal, my primary goal as public advocate was to make every county a full-time uh county, uh, which we completed in 2005. And uh that by by doing that, I felt like I could retire. I retired three years later in 2008 after 31 years as a Kentucky public defender.

SPEAKER_02 25:51

Okay, now I'm gonna jump in and I'm gonna tell you when I went to make it at the Atlanta Airport in 1994, I was so giddily overwhelmed by the amazing people there. You, Larry Posner, who calls himself Pos. He appeared earlier this week on the podcast. Lisa Wayne. I'm trying to remember the name uh of that Jed Jed, I forget his last name, uh, from Chicago.

SPEAKER_01 26:18

Jedstone.

SPEAKER_02 26:19

Yeah, Jed Stone. He didn't think it was too funny. Maybe he heard it too much when I said what they don't come in here and start about a man named Jed, but that's that that that's part of my irrepressible humor. Uh it really wasn't until uh sometime after coming back from Macon that I started sorting things out. And we didn't have the internet yet. So by the time I found out your email address a few years ago, that's when I finally said to you, hey Ernie, it's gonna go late. I'm giving you my thanks here, and I do deeply thank you. And uh if you think he's as mild-mannered as he sounds, let's look at the top, the 10 top things I always wanted to say at a judge's conference that Ernie did for an article in the National Association for Public Defense. And maybe after I read a few of these short quotes that I just love and adore, you can say if you would have been willing to have uh written this before you retired. I like 10. I don't know why that's not one. You do too erase when you make decisions. You race when you decide on bond, when you decide whether to transfer a child or not, and when you sentence, you can believe you don't, but you do. You know, you're kind of like the good side of the guy from Boston. I don't know if you don't know who he was. There was this obnoxious guy who's used to be on YouTube, a really conservative uh uh person with nutty ideas to it today. I say what you're thinking. Well, you're saying what all the all us criminal defense larges are thinking, but maybe we don't always say. Here's another one. You don't really believe the police and your findings on Moses just depressed. You can't possibly believe them when they say over and over that something was implying of you, or that the person actually gave consent to search the drunk or car where there was gazillion pounds of marijuana. I'm just gonna do one or two more because this is just so rich. Uh well, okay. Well, this is a good one because this comes back to the draining and being a good public defender lawyer. Handling three criminal cases does not make you a criminal defense attorney. Okay, Ernie, two things. Would you have written that before you retired? And um what else do you have to say about that? I mean, this is rich. Everybody just Google it. You can find it on my blog too, referring to one of my several articles about Ernie. Ten top things I always wanted to say at a judge con judge's conference for Ernie Lewis.

SPEAKER_01 28:45

Yeah, would I have what I I might have said it my last year. Because in my last year, uh, this was 2008, I announced I was going to retire later in September of 2008. Um the the American ACCD, the part of NLADA, had, and I was chair of it at the time we did this, passed this wonderful standard on excessive workloads. Because workloads, I mentioned that my goal was to have a full-time system, which we accomplished. My second primary goal was to lower caseloads, which I did for a while, and then I would view that as an utter failure because by 2008, Kentucky attorneys were handling between four and 500 new cases per lawyer per year.

SPEAKER_02 29:40

Ay, ay, yay.

SPEAKER_01 29:41

Yeah, and a fourth of those were felonies, the rest were misdemeanors uh or juvenile cases, far in excess of what the national of the then NAC standards were. And so um I d I went to after the the um ABA declared in uh 06441 ethics opinion that you could be unethical for having an excessive caseload. You could also be unethical if you were a supervisor of public defenders and allowed them to have an excessive caseload and didn't do something about that. I viewed that as not only could I get disbarred, but all of my supervisors could get disbarred for having those kinds of caseloads. And so I went to the General Assembly, that was my last budget year, um, and I said, you've got to give us, I I proposed a budget that would have brought us into compliance with it then the NAC, the old NAC standards. Um said, if you don't, if you don't give us this amount of money, um we're gonna have to decide what we're not gonna take. And there are some places in the country that already do this, uh, and I knew of them, but Kentucky, you I used to view public defenders as pack mules. The General Assembly thought PDs could just handle, you know, another hundred cases a year, another 200 cases a year. So I said, we're gonna have to, we're gonna have to stop taking these cases. They did not fund us uh in in that way. In fact, they cut our funding by a little bit. And so I announced that in uh June of uh 2008 we were gonna stop taking categories of cases like parole revocations, uh Class B misdemeanors, uh, et cetera. I ordered all of my attorneys to stop taking uh stop taking those categories of cases. Um remember I was set to retire in 2008. Um we filed a declaratory judgment action that would have given us the authority to to do that, to decline excessive caseloads that were in excess of our ethical of eth of our of our uh legal ethics. And um eventually it was mooted out. Once I retired, Ed Monaghan became the public advocate. Uh Ed went to the governor, went to the General Assembly, got additional funding. And so our lawsuit ultimately helped get us increased funding. Um I say all that to say I might have been willing to say those things in that top top ten article uh in my last year, because I then I wasn't worried about getting fired or about being reappointed.

SPEAKER_02 32:51

Did you ever practice law after retiring from the public defender system in Kentucky?

SPEAKER_01 32:57

I did not. What I did was I by by that point, you know, you you stay a public defender for 31 years. Um the it's you have a pretty big pretty big decision in your early 60s to make whether you're gonna learn how to be a private criminal defense lawyer, do all of the business end of that, or do something else. And so from 2008 until 2013, um I was the uh KCDL legislative agent, so began to go to the General Assembly and advocate for the Association of Criminal Defense Lawyers, and I also did consulting. So I did uh several assessments of public defender agencies in primarily Louisiana, New Orleans, and uh Calcashew Parish and uh Lake Charles, Louisiana. Um I did some assessment, I did an assessment in Ohio. I did so I did consulting. I did one more death penalty case during that period of time. So yes, I I continued to practice, but certainly not as a private criminal defense lawyer. And then several of us, uh Ed Monaghan and Mark Stevens in Knoxville and Tim Young in Ohio, all chief public defenders, decided uh that they wanted to start a public defender, an association of public defense. So we met in Dayton, invited about 40 chief defenders from around the country, met in Dayton, decided to start NAPD, the National Association for Public Defense, uh, and it got off the ground in the fall of 2013, and in January of 2014, I began to be the executive director of NAPD. I was executive director of NAPD from um January of 2014 until I finally retired uh in 2021.

SPEAKER_02 35:09

Okay, before we get to that part, which really interests me, and I'm sure the uh at least the public defenders, the indigent defenders uh who are listeners, yes, it's true, prosecutors are listening too. So I don't know if you're leaving anything out. But what do you want to emphasize here about what's important to do to beat the prosecution? And when we know the basics that are taught and make, and of course, not uh the listeners don't automatically know that, you know, beyond the preparation, et cetera, number one. And number two, did you ever have any frustrations about the gaps about what you were teaching and other people were teaching at the trial practice institute, and what perhaps not all the Kentucky public defender lawyers were doing, or were they?

SPEAKER_01 35:53

Yeah. Let me let me address the second part because that's that was a huge deal. We would send our baby lawyers to the trial practice institute. Uh lots of lots of people that taught at Macon would come and teach there. It was out in the woods in southern Kentucky, uh, and they'd come away with from there with a fire in their belly, and then they would go out, and either their local directing attorney would say, You can't do that out here, what you learned. Or worse, they would realize uh the caseloads wouldn't allow them to do it, their judges weren't allowing them to do it, and so there was a huge gap between what we were teaching them to do and what they were being allowed to do in reality. Uh so yeah, the training was hugely important, and I'm a huge believer in training, um, but I'm also a huge believer in supervisors, um enabling their brand new lawyers to come out and implement and reinforcing what they've learned, whether they go to uh uh Macon or wherever it is now, Fairfax, I think.

SPEAKER_02 37:10

In Fairfax, a few miles from my office.

SPEAKER_01 37:13

Um congratulations to them for continuing to train what, a couple hundred lawyers every year. Um in Kentucky we had a deal where every year we would send, we couldn't couldn't afford to send many, we sent two lawyers from Kentucky to NCDC uh with their the obligation that they would come back and they would train. And so over, you know, over the starting in about 78, so what's that, over 40 years uh at two lawyers apiece, we trained we had 800 lawyers coming out uh with uh with the gospel of NCDC, who were then inculcating what they learned into our entire system. And Ed Monaghan, of course, was a marvelous trainer. And he started uh a public defender training program that was that put us on the map. Um, even this poor little state with this excellent public defender training program. Jeff Shear became uh took took the ball from him. He was uh Ed was a training director for me and was also my deputy. Then Jeff Shear was our training director. He's now the training director for uh for um uh uh NAPD. So it I'm I'm an enormous believer in training and think it's one of the most important things a public defender agency can do.

SPEAKER_02 38:52

Absolutely. So, okay, so beyond preparation and beyond the importance of uh storytelling uh for criminal defense and using the Posner Dodd cross-exam method, what are your top two or three uh uh uh thoughts about what's important about making the difference between beating the prosecution or not? Not just at the trial level, because uh that's just usually a small percent uh a minority of the cases uh uh of how our cases end up, but also for dealing with any aspect of criminal defense, appeals, negotiations, dealing with difficult judges in motions hearings, anything.

SPEAKER_01 39:28

Yeah, you uh like number one would be client-centered. You have to be client-centered rather than judge-centered. You know, there are a lot of people who think they have to please the judge all the time. Uh, not be lawyer-centered. Uh, you've gotta you've gotta um meet the client. I think Cynthia Roseberry used to talk about sitting with the client. And uh you've got to really get to know your client, spend time with your client, uh, do the preliminary work. Um I was a huge believer in preliminary hearings. I used to subpoena uh witnesses all the time, including child victims, to preliminary hearings, and ended up having to take that up to an appellate court to try to get the right to uh to call witnesses at preliminary hearings. Vigorous motion practice. I think John Rapping used to talk about um evidence blocking is the way he talks about motion practice, but you can accomplish an awful lot by vigorous motion practice. Vigorous motion practice can not only help your client, but it can reform a police department, it can keep a prosecutor's office in in check. You have to prepare, prepare, prepare. Theory of the case, major believer in theory of the case. Um and you got to work on your theory all the time. Um a great way to work on a theory is to have what's called a wrench book. Steve Wrench used to carry around this little notebook that he would have next to him when he went to sleep. I swear he he used to do that. Uh when he got out of the shower, he would write in the wrench book, and there he would write little slogans, little thoughts, things that would ultimately end up driving his theory of the case. Right. Ending up in a in a in you know, themes in a closing in a in a cross or uh theories that were in his closing. Um case reviews is something that we began to do in Kentucky, and I would encourage your public defender and private listeners to think about doing this. It we decided, Ed and I decided that in any capital case in Kentucky, prior to doing a capital trial, you needed to do three case reviews. And uh one would be right after the case began, where you made sure the team was properly formed, and where you were beginning to think of a of a theory and you had you had the team in place and they met the ABA standards. Uh secondly, um in the middle of the case, where you really work on theory, and then third, right before trial, uh you would practice like your opening statement, your bridge opening, the one before the penalty phase, uh practice your closing, etc. You bring together a group of people, non-lawyers and lawyers. Yeah. People on the team, people not on the team, and work intensively over several hours on that case.

SPEAKER_02 42:43

The non-lawyers, too. I mean, as I mentioned in previous episodes, uh we're blessed here in the uh DC metropolitan area that one of my uh fellow brothers from the Trial Our Hurlege, Chris Floor, uh, every uh the second Saturday morning of each month uh we we choose someone's uh case who would develop it with the storytelling, the psychodrama, the reenactment. Now that's not enough, but that's an important start. And and and with that group of people, uh sometimes my clients would invest the money and time into hiring Don Clarkson or another great psychodramatist or uh trial consultant. We bring them over and have what maybe a full day, a full two days of developing the trial. We could do that even without the expert if they weren't gonna pay for it. Uh but but what we have with Chris is this consistency that we know that every Saturday, every second Saturday morning of the month, we're gonna be able to be with Chris at least for two or three hours. And then if we have more cases that are going on among us, uh you know, we can go into further depth uh with that, starting with that core group and and or allied groups. And that and the non lawyers is so important.

SPEAKER_01 43:54

Sounds like you've got a great bar association, criminal bar bar association.

SPEAKER_02 44:00

this is this is spearheaded by Christopher Floor, a lawyer in Maryland. And the way he he calls it is uh that was a follow-up to what I often uh did after uh after I got uh uh became my own boss back in 1999. Uh thank you for all of that because you know so often Ernie we're talking about how to win a trial and um there's a lot that that goes on that disposes of the case before trial a lot of what you're talking about is motions practice for instance can you please address for us okay you're one of the several people who have been on here who I consider to be a great powerhouse lawyer you come across as this really kind person uh can you tell tell a little bit about do you ever when you were uh defending your clients did you ever get angry with judges, prosecutors, cops, whoever, how did you deal with that anger and uh and and how did you still win?

SPEAKER_01 44:59

And how much faith do you have in the current criminal justice system or is it more like uh we win despite all the injustices that still exist in the system yeah of course I of course I got angry at at at um the judges that I that I faced um the first time I appeared in I said I started the office in Richmond Kentucky I walked in I knew as the director of that office I was gonna have to get along with the chief circuit judge so I went to make an appointment with him and he refused to meet with me and and that started our relationship off um at one point he told me I don't ever want you to cite the Constitution again in my courtroom uh we're just gonna put up three buttons at the defense table you know fourth fifth sixth eighth fourteenth and you just press the button when you want to yeah so he he did what's called rule 11 me he asked the Court of Appeals to um I was challenging a particular new law saying that it was unconstitutional. It did not allow us to uh tell our clients what pro eligibility was going to be uh it was the old truth in sentencing that was passed some 20 years ago and the judge said that was frivolous and so he tried to get the court of appeals to to fine me and sanction me we ended up winning winning on that but yeah you asked did I ever get mad at a lawyer or at a judge I did get um mad at a judge he he used to uh in in chambers would say I want to address the Court of Appeals you got to do something about this lawyer so uh he and I did not get along I gotta say with police officers they're good good cops and they're bad cops I met some really good cops who uh who uh I I had a police officer in a capital case one time who went to the prosecutor and said you really got to deal this case um we ended up not dealing it uh because the prosecutor wouldn't listen to him but I highly respected that police officer I also you know the the talking about um uh police officers lying during suppression hearings on warrants and so forth yeah there's some horrible cops and uh there's probably a reason why they burn out and why they die early is because they're living in that kind of system where they gotta know that the system they're in is one where injustice is resulting and they're complicit. They're part of that system. And we all have an opportunity to do the right thing or not do the right thing and um anybody that's in that system and is complicit is going to be affected by what part of the system they're seeing. And that includes criminal defense lawyers. One of the things public defenders talk about all the time is excuse me is secondary trauma is you know you you hear stories of tragedy you see clients and and what happens to clients in this meat grinder of a criminal justice system and you have secondary trauma you you too as a criminal defense lawyer end up being traumatized and that's why you then have to have some mechanisms of taking care of yourself uh I can't say that I always took care of myself um I wasn't an alcoholic I didn't take drugs I exercised I tried to have a a a family life that was that that fed me uh on the other hand I ended up getting cancer got a divorce you know so things will happen to you over a lifetime um if you're involved in this system and um I would encourage anybody that experiences any of this kind of secondary trauma uh to to do something about that and make sure you're not headed down a path of of burning yourself out or hearing one too many stories of of tragedy.

SPEAKER_02 49:42

Thank you so much for revealing all that about you, Ernie I didn't know all about that. I think that we criminal defense lawyers are uh in a similar boat in fact a more challenging boat the uh as to the uh mental health professionals who are dealing with other people's trauma. At least the mental health professionals are not in litigation combat like we did criminal defense lawyers are. So the way I like to look at it and uh internalize it is luckily I practice martial arts. I uh practice mindfulness I've learned from some of the best in mindfulness in martial arts uh and the martial arts I do I mean this is this is real physical stuff that can be deadly Tai Chi Chuan was some of the nation's best uh practitioners right here in in the national capital area um and I think it was uh what is his name uh Hugh Byrne who's a really good mindfulness teacher in the DC era he talks about how important it is for you know lawyers who are experiencing uh burnout, stress, anything that might make them uh turn to uh drugs, alcohol, other addictive behavior, they've really got to seek out the help.

SPEAKER_01 50:55

That's absolutely right.

SPEAKER_02 50:56

And the help's not always going to be fixed just by going to a substance abuse program because a lot of people who have the problems aren't aren't only turning to the drug sex and alcohol they're turning to other things as well just withdrawing for instance or or or maybe shirking the responsibilities. So really really thank you so much for bringing that up now I want to get back to when you were talking about these judges andor supervisors saying you can't do that. You know I think um one of these uh teachers at a Mac an or making type program said okay if you've got a heavy caseload at least choose a few of your cases that are likely to go to trial to really fully apply what you've learned at these programs if you're not ready yet uh time-wise or energy wise to do with all of them and then of course there was E.E. Bo Edwards from uh where is he from Nashville? You're some from somewhere in Tennessee uh so the the when you were over there at Nash in at uh Macon although uh he I think he did in the second week because you're only there for the first week I think he did a great uh he did a great closing argument uh demonstration I think it was for that case involving the uh the the false confession case where there was that man who who had uh uh lost his lover and and so he felt there was nothing to lose but about confessing to the cops and at one point Bo raised his voice and Bo is this really nice seeming guy big guy and he's and he at one point he called out he had this box he showed out his box was empty and and and this was the prosecution the whole prosecution was empty and at one point he called out is this justice and he threw the box on the ground and I said to Bo will judges really let you get away with that and he said yes I'm not so sure but we have to take those risks what's the worst thing that happens if the judge doesn't want us to do it the judge just says don't do it again we've already done it I mean we're not going to throw the box down twice at the trial and yell is this justice yeah I can I can tell your your um by telling that story your your taekwondo or whatever it is is uh of use to you I can also tell that you have a spiritual side because your listeners can't hear see this but I'm seeing Yoda right behind your head um which which uh I'm sure feeds you from time to time. That feeds me and and the Japanese calligraphy behind me that's uh Namum Yohorengeyo, the essence of the Lotus Sutra. And uh my favorite chapter in the Lotus Sutra, which I mentioned a couple of guests ago is uh this uh character named Bodhisattva never despise he he bows to everyone and he says why am I bowing to you he says you have Buddha nature you may not become a Buddha in this lifetime or for millions after but you have Buddha nature and why am I bowing to you from a distance? Well I see your armed and I'm not sure if you're going to use those arms against me but I'm still gonna bow to you let's go on to your work with the uh National Association for Public Defense yes sure what have you not told us about that group that uh we should know um NAPD now has I believe it's 25,000 public defenders together.

SPEAKER_01 54:33

When we met in Dayton there were 40 of us and what we decided we needed to do was to be the voice of public defense and we set out to organize as many public defenders to join together with dues of 25 bucks per year. And I think we've we've accomplished that. Now like any organization uh you know the uh it's it's now an established organization I'm very proud of what we were able to accomplish in um it's I believe it's just had its its 10th anniversary but now public defenders have a national organization that allows them to have a uh seat at the table when uh when the Justice Department does something when when something occurs uh that is unjust somewhere i'm I'm delighted with the standards that we put out we put out standards on workloads put out standards on on independence um go to the NAPD website and look at all of the work that that organization has done and and I'm very proud of what they've they've accomplished over 10 years.

SPEAKER_02 55:52

Does the NAPD have a strike force maybe similar to what the National Association of Criminal Defense Laws has and how much does the NAPD uh include a focus on making sure that uh caseloads are reasonable so that the Sixth Amendment can uh can come to life?

SPEAKER_01 56:08

Yeah the NAPD has a small uh task force or a strike force Fred Friedman is almost a one-person uh strike force out of Duluth Minnesota and he will he has intervened in a number of different um matters where some public defender somewhere is threatened um the second part of your question was um funding so to what extent does NAPD get involved with making sure the caseload is right and I add funding as well yeah um we certainly put out standards regarding uh caseloads regarding funding levels um we don't advocate at the local level because that we try to we try to help our our local agencies um work on presentations for adequate funding but we were intimately involved in developing the new ABA um workload study that goes way past the national to uh way past the old NAC standards uh they're they're now much more um they're much lower uh for one thing saying here's what a reasonable uh person reasonable lawyers should be able to handle um so we we've been very involved in workloads um we're very involved in in independence uh that's still a major factor for public defender organizations around the country uh where for example recently I think a year ago the Oregon public defense chief public defender uh the the chief justice of of their commission or the chief justice of their supreme court was on their commission and and you know couldn't couldn't see the problem with that and he ended up challenging her and she got him fired so that was a really good example of of of a system that did not have independence I think you have independence in Virginia I think you have a um uh virgin uh an indigent defense commission there is which appoints your public chief public defender that's my understanding yeah I think that's a that's a vital issue that NAPD has worked on uh since it's exit uh since its beginning and of course Andrea Lyon talks about the uh at least at the federal level the position of the uh uh public defender general NAPD um uh affirmed the need for the um uh defender general uh along for the day when we have a defender general who has the same authority uh as the attorney general and would that be a defender general just for uh for federal cases or is the idea to have a f defender general in each state as well the way that Andrea set out in her book I think I hope she talked to you about that when she was on this show um is that that there would be a pot of money uh similar to what the the the Justice Department now has that they disperse to to uh police agencies around the country and to and to various initiatives there would be a pot of money where public defender agencies could apply for that if they meet met certain standards like workload standards and and the like well like with so many of my guests if you had permitted me and if time permitted I would go for hours and hours talking and more I told you this would go for an hour. We've gone a minute over that so before we uh leave the audience uh please tell us anything else that uh we should know that you haven't said already yeah um I'm just delighted to reconnect with John Katz um it's amazing to have been to have John Katz when he was a young lawyer in my group and now to reconnect with him and see what he's doing see what kind of career he's had and uh that's been very rewarding to me. So good to see you again John.

SPEAKER_02 1:00:32

Thanks Ernie and like I tell many of my guests one of my martial arts teachers tells us never let our teachers know how much we appreciate them. Never let them forget. I will never let you forget. Thank you everybody this has been John Katz you've heard me speaking for the last hour with the great Ernie Lewis a great man a mild mannered seeming man not so mild mannered when you read his badass article 10 top things I always wanted to say at a judges conference. Thank you so much to Ernie thank you to you uh the audience this has been John Katz of Fairfax criminal defense law and UI Defense Lawyer Thank you for listening to this week's episode from Beat the Prosecution this is a regular podcast giving people a leg up against police investigations and prosecutions we welcome you contacting us at info at beatheprosecution dot com or by calling 703-383-1100 or texting us at 571-406-7268.