SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia criminal defense and DUI lawyer Jonathan Katz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Kemetz.

SPEAKER_01 0:32

Hello, everybody. This is John Ketz, a Beat the Prosecution. I'm a criminal defendant DUMA defense lore in Fairfanatics, Virginia. I say it all the time about how excited I am about the guess I'm with. I'm extremely excited to be here with David Lewis, a great criminal defense law in New York, a former judge, and he's one of the first criminal defense lawyers that I met and heard from and was inspired from when I was transitioning to working at a corporate law firm in 1991. And I met him at the National Association of Criminal Defense Lawyers meeting in Philadelphia. And he had me at once laughing my butt off, but also knowing how great he is and how much the possibilities are there, and not to see the limits to where that was about transitioning to criminal defense, but only to see the possibilities. David Lewis, please introduce yourself.

SPEAKER_02 1:29

I've been practicing criminal defense law for about 40 years. I had a short five-year stint on the bench, and now I've returned to practicing criminal law, which is my first love. And I'm with a law firm called Idela Bertuna and Cayman's in Midtown Manhattan as a partner.

SPEAKER_01 1:50

David, you probably uh well, I would imagine you would remember the topic you spoke about at uh that any CDL meeting in uh Pennsylvania, I think it was in Philadelphia, I think it was part of this uh uh forum about how to uh practice criminal defense and still send your kids to college. And uh you were talking about how nobody would hire you. I don't know if that was an exaggeration. So when you were your law partner, I don't know how you how you pronounce the last name, Fiore, maybe, decided to hire each other, and you talked about things like doing federal court appointed work, and I guess there were multiple lawyers in the case. So I guess when you didn't have much to do during the court, you were leaning back in your chair and doing the mantra of a dollar a minute. Did I get that right?

SPEAKER_02 2:33

I mean, back then the CJA rate was uh $60 an hour. Uh I came out of law school with my partner. Uh, we opened a practice on our own uh because we consider decided nobody would hire us, um, but then nothing would stop us from hiring each other. So uh we formed a partnership. We convinced a landlord to rent us what really was uh a storage room that we then refurbished, and that was our office. And of course, the first clients we made money on uh were none of the people who promised that they would help us and hire us, complete strangers basically. Uh and uh it took off from there. Uh the court-appointed work was really a godsend because it was the basis uh for building uh a private practice, because you're in the courts in and out, and you get seen and you get known by other lawyers and judges, and they sort of try and find you. At one point, I had a reputation of taking all the difficult ones from all the judges. It was sort of like, let's give it to this guy. Uh, but it but it was a practical way to practice law.

SPEAKER_01 3:56

And um are you a New Yorker through and through? And what brought you to the practice of criminal defense and to law itself?

SPEAKER_02 4:04

Well, I'm a New Yorker through and through. My father was a uh a lawyer, but he was a civil lawyer. Um, and in college, I took a course in urban studies at NYU. And as part of it, we toured uh, I think criminal court now. Uh but uh my dad used to talk about night court and how taking his a date to night court was a cheap date back then. Um so I started to go to night court too and watch what was going on, not on dates, but I was just curious about it all. And I volunteered for legal aid uh while I was in college uh to work with a group. Um and I did. I wrote motions, I followed lawyers around, uh, and I discovered that I really liked it. And the other part of it was uh when I was in law school, everybody was so deeply caught up in law review and money and big firms and where they were going to go. Um and I I just never got the bug. Uh and I kept saying the most valuable thing is not, most valuable commodity is not money, it's liberty, it's freedom. Because that's the one thing you can't get back. I mean, you lose money, you sue, you get money. But you can't regain your freedom once it's been taken from you.

SPEAKER_01 5:30

Something that strikes me about you is how you're you seem at once very brilliant, funny, and dedicated. Now, you might deny it if you're modest. I don't know if you're modest. Where does where does the humor come from?

SPEAKER_02 5:46

Oh, from both sides of my parents. Well, my father was uh a great joke teller, a great storyteller. Uh, and my attitude is that uh uh unless you think it's really funny, you're in a lot of trouble. So that's the first thing. And the other thing is in the courtroom, um properly applied, uh in the right situation, humor can really break the tension uh and be more persuasive than anything else that's said. Uh and it's important as a lawyer to be aware of those opportunities because they do come.

SPEAKER_01 6:24

Right.

SPEAKER_02 6:25

Uh the problem is making sure you it's the right time.

SPEAKER_01 6:29

I remember when I was uh cross-examining uh this witness in uh when Ramsey Clark and I were representing Phil Bergen and friends uh for their 1999 plowshares action. And at the 2000 Truman, I asked uh one of the witnesses who come up to defend us, I said, So uh did you on the the hammers you found for the defendants, did they did they put their uh uh did each of the defendants put their name on the hammer with an all? And the witness said, What's an all? I thought everyone knows what an all is. So I said, Well, if you're like me, you learn to use an all in Woodsham up in seventh grade, and then you go out of grade of C on what you did. So that was a little self-deprecating humor uh there along the way.

SPEAKER_02 7:15

The best courtroom humor is self-deprecating. Because it it brings a jury with you. There's a certain amount of empathy that it creates, um, and it's also contrary to what is expected. I mean, the expectation that the lawyer is going to be a pompous ass gets deflated very quickly with an element of humor. Um, a lot of times I'll come into a new jurisdiction uh and say to a judge, I'm Your Honor, with all due respect, I have very little idea what's going on, and I'm gonna learn as we go. Uh, because it's important that that be said. Um, and it's true.

SPEAKER_01 7:59

I remember how hard a worker you wrote uh about being in an NACDL uh champion article about working Monday through Saturday, and Sunday is the day to come alive. Uh, I take it that with some of the cases you've worked on, you've dealt with massive amounts of information. And so so how do you how do you tackle all this and still remain the human that you are and the very persuasive person that you are when you just get all these mountain this mountains of data that you have to deal with?

SPEAKER_02 8:30

Well, I'm looking through that data for what the story of the case is, what the defendant and who the defendant is. Uh, it's not just anonymous data, it's data for a purpose. So that's part of being human. There's a human in every set of papers. It just you have to find it. Um, and ironically enough, the more the case is a paper case, the more it relies on the people who are testifying for one side or the other. Because the paper just doesn't talk, no matter what anybody says. I mean, the objection is it speaks for itself, but in truth, it really doesn't. It just says what's on the page without any of the nuances or any of the elements that make it human. Even a contract in certain criminal cases becomes vitally important. And under my theory of defense, every every item, every object, every fact uh is an element of the case, not of the crime, but of the case. Uh, whether it's the gun or the contract, they're all players on the theater that is the trial.

SPEAKER_01 9:40

Right. Um, well, how long were you practicing criminal defense before you went to the legislature of New York? What were you doing with the legislature? And then how long were you a judge? And and uh what were you doing as a judge?

SPEAKER_02 9:55

Well, I started out, we opened the practice, I got offered the job as counsel to the Speaker of the Assembly, Pro Tem, who was a Democrat from Greenwich Village. I took that job. That gave a pad, a financial pad, for being able to do whatever I wanted in terms of taking cases. Uh, and I uh was him for three years with him for three years in the legislature and practiced all at the same time. That was the deal. And then I had been representing uh the Irish Republican Army in New York in a series of gun cases. Um, and under the first rule of politics is never embarrassed the boss. I basically went to the guy I was working for and told him it would be better if I leave, because the cases I'm doing are going to catch notoriety, and you shouldn't be tarred with any of that. Uh and I left. Um, went off, continue to practice law. Uh, ironically enough, in 1990, um uh Republican state senator uh became chairman of the arts committee in the state senate. And in assembly, I had written almost all the art law that we passed. Uh and so I got called and said, Will you come work for me? Uh I worked for him for a year. Um I did not like it. I left. Uh, and then a couple of years later he called me and asked me to come back and to do what I can to get rid of the death penalty, because New York was on the verge of a death penalty statute. Um, so I did. I signed back on. I stayed with him for a while, and ironically enough, I didn't leave. I kept getting kicked upstairs from one place to the other until finally I was counsel to the majority leader in the state senate, uh, which made me the senior legal person for a branch of government. And in fact, I represented the Senate and state and federal court, uh, doing reapportionment, uh, doing uh dealing with subpoenas, all of that information. Uh and when my guy uh left uh and a new guy came in, the rule is you need to know when it is time in politics to leave the stage. Uh and I knew it was my time. And uh one afternoon, I someone came into my office and said, We got a judgeship. Do you want it? Part of that is being so high on the food chain that there's almost no place else to go. Um, and I told them, I don't know, I'll talk to my wife and I'll see what I think. Uh and my inclination was no. Uh, but I got talked into doing it um because it was what to do next. It was a natural progression. If you're the head of a branch, you go to the bench. Um and I got an appointment from Governor Cuomo to the uh Court of Claims in New York, which is also an acting Supreme Court judgeship where they put you in criminal parts. And I sat in Ronk's Supreme Criminal Term and what I called the murder in Mayhem port, because that's basically what I saw. Uh I did those, I did parole habeas, and I also had a miscellaneous calendar, meaning anybody with any grievance about Rikers Island uh who brought an action, either by themselves or with legal aid, was on my docket. And so I had wrote decisions about conditions in Rikers and uh things of that nature. Uh, when my term was up, uh it was up. Um I was 69. Our judges have to retire at 70 if we're not elected. It didn't seem worthwhile to just hang around another year. Uh, and I wanted to do something different. Uh, to be candid with you, I really was miserable the whole time I was doing the job.

SPEAKER_01 14:00

Wow.

SPEAKER_02 14:01

It didn't fit in. I didn't I wasn't really collegial in the sense of uh doing what was expected. Uh I thought the lawyers should be on time and be prepared. That seemed to be a tremendous issue. Um and and bad lawyering really upset me. Uh I was trained in federal court. I mean, I was trained early on when there were matters. I mean, where you would say, May I withdraw when you were done in the well. I just was happy if they didn't turn their backs to me and walk out. But Bronx is a very different place than anywhere else.

SPEAKER_01 14:41

Wow. Well, um, were you doing uh felony trials or was it was a more civil work?

SPEAKER_02 14:48

All felonies. Felonies or habeas. You know, uh murder rehearings on murders, what we call 440s, uh ineffective assistance claims. Uh I did certain mental health um sex offender commitments. Uh I actually cut one loose and they took the whole part from me. Uh didn't like the decision. So I I was doing a little bit of everything, but I didn't wasn't doing civil work.

SPEAKER_01 15:21

How did you feel about dealing with laws you didn't agree with, any mandatory minimum laws if they have the them that you didn't agree with? How did you feel about uh knowing that sometimes you were treating someone's testimony as credible when it wasn't? How did you feel about doing uh keeping people in uh jail when presumed innocent, pending their trial dates?

SPEAKER_02 15:45

Well, I was a sucker for bail. I actually got in terrible trouble with my colleagues because I vacated one of their bail decisions. Uh and uh that seemed to be the last non-collegial thing you could do. Um I I did what I thought was right. I everybody was terrified of showing up in the New York Post. I wasn't. Uh I thought you're supposed to do it like you're supposed to. Uh I believed all the propaganda and figured I'd carry it out. Um, I threw out a murder conviction uh because I thought uh the lawyer was ineffectively represented. Um I declared a mistrial after after the prosecutor's opening statement when it was an appeal to the religious interest of the jurors. Um just some things that shouldn't be tolerated. Um and the purpose of a judge is to uh lease the courtroom. Uh and really the only thing to be protected are the defendants' rights. The government doesn't really have rights, they're just, as I kept telling them, a litigate in front of me, no more, no less. And that seemed to upset everybody. Um I uh I think I put in very few people gun cases where the gun was loaded. I put it was I thought those should be sentenced to deal with the problem of guns in the Bronx and in New York and in the country. Uh on uh murder cases uh where there really was a murder, as opposed to all sorts of other things going on. Um, I I I sentenced. Um, I was on the lighter side of most of them, uh, if you were considering it that way. But I just thought every day in is a day in. I don't understand the idea that there are easy sentences, and the conditions in the prisons make the sentences not easy at all. People forget what it's like. I mean one of the things the judges do is we're required each year to tour the prisons. Uh and they we I went on the Rikers tour one year, and it was the equivalent of Potemkin Village. They showed us literally what they wanted to, whether it was real or not.

unknown 18:12

Yeah.

SPEAKER_02 18:13

The week before the holding bans were so bad that there was a like Amnesty International was looking at it, and the week we came through, they were all empty. Clearly, that's not what was going on, and they made a mistake because they let me wander off. And one I found the female psychiatric prison, you know, to look in and to see what was going on. And that certainly didn't like like it look like everything they were telling us. I mean, they tell us, well, you know, we go to sick call, they all get their sick call. I was sitting in a par where no one got sick call. So it just didn't match. And they would tell us stuff like that because we didn't know any better. And and I was the only one in that part at that point. So my colleagues didn't know much better either.

SPEAKER_01 19:09

Wow. Well, but but you had already been uh to uh Rikers even as a practicing lawyer before becoming a judge, isn't that right?

SPEAKER_02 19:17

Right, but what they show you when you're a judge and what you see when you're a practicing lawyer are different. Also, if you're s you're visiting as a lawyer, you're only confined to the visiting. As judges, they supposedly took us around to all the wings, all the parts, which they didn't, but that's what they say they did. And I had been upstate as a practicing lawyer uh and seen those conditions. Um, and I had also uh done death penalty work, so I had been on death row in Texas with a client uh and saw that, but no matter how many times you see it, it's to me it's still shock.

SPEAKER_01 20:01

Um does New York have uh Laura directed war deer, and if not, did you allow that anyway?

SPEAKER_02 20:09

It's part of our statute. Um, so it does occur. I allowed it. My feeling was uh I had a questionnaire I started with, you know, four or five key questions about health, uh different things, religious observance, anything that would get in the way uh of being a juror, and then I let the lawyers talk to the jurors.

SPEAKER_01 20:35

And to the audience, uh wartiers, jury selection. And uh, how liberal would you be to uh to not interfere too much with what the lawyers were doing during jury selection as long as it was within the bounds of the rules?

SPEAKER_02 20:49

Within the bounds of the rules, I was gonna let them go. I mean, there's no reason to interfere. I mean, if you see something happening with the juror where you need to protect the potential juror, that's different.

SPEAKER_01 21:03

And I take it that uh I know almost nothing about uh New York procedure because I haven't practiced there. I take it that in New York uh you your level of uh judging would have been involved in um approving and uh and disapproving search warrant applications.

SPEAKER_02 21:21

I I got those two. And wiretaps. And uh ironically enough, more wiretaps than search warrants.

SPEAKER_01 21:30

Got it. And and how how often would you would you deny the uh search warrant applications? How how often would and if you were going to deny it, would you give the police uh any any idea about uh you know go back to the drawing board or just say and saying it's denied?

SPEAKER_02 21:47

I would in the rare occasion because usually they knew who they were going in front of. And they and they did everything by a form. So it almost like they couldn't get it wrong. Um, but if it wasn't sufficient, I would tell them I'm not signing it. And then it was up to them if they wanted to come back to me or usually they went to someone else.

SPEAKER_01 22:09

And and how did you feel knowing uh, well, if you did know that uh not everything in these uh search warrant applications were always truthful, how did you feel that it was it's just so one-sided to issue search warrants where the person who's being searched doesn't have a chance to weigh in on whether the search warrant's issued or not?

SPEAKER_02 22:30

Well, practically the person being searched uh would not weigh in because they are not to know they're being searched, right? Uh, which makes a certain amount of sense. Um, usually the judge reading the warrant application decides whether there really is probable cause. Excuse me. In a lot of these cases where that I saw, they were large-scale drug conspiracies in which numerous warrants had already been signed, and this was just a continuation. Um, I uh would demand that the detective or the affian appear in front of me uh and talk to me, make sure A there was a real person, and B, that they could recite probable cause without reading something someone else wrote. Um, but other than that, and that they would take the oath in front of me, uh, that it was true and that they were signing it under penalties of perjury. But that's the most you can do.

SPEAKER_01 23:33

All right. So does that mean that the law enforcement officers were talking to you about things that were outside the four corners of the search warrant application, or more that they were just giving some deep more details about it?

SPEAKER_02 23:44

Sometimes I asked for more detail.

SPEAKER_01 23:48

Okay. And um but weren't you ever concerned uh about whether, hey, there there might still be lying going on here, and and there's just it's not always humanly possible to know. And I'm talking about about both with the search warrant applications, and I'm also talking about any of the testimony came before you, whether it was for the prosecution witnesses or the defense side.

SPEAKER_02 24:11

Warrant's different than testimony. The problem with trying to make that decision with a warrant is you have no basis to decide what's true and what isn't. You're really hamstrung by the statute that says you basically have to sign it. Uh the defense then has to controvert the warrant. And there's the adversary proceeded. Uh, in in hearings, uh, I was not there are times I didn't find the cops credible. Uh one time I had someone come in and explain that they had seen something without going into it, and the explanation was impossible under the law of physics. And I called the prosecutor up to the bench and I said, Look, I don't want to write a decision with your name on it, and I don't want to, you know, be embarrassing you any more than necessary, but let's start with the first principle: rate times time equals distance. Your testimony doesn't match that. That's the law of physics. So they decided to drop the case rather than have a decision rate.

SPEAKER_01 25:22

So um, you know, I said about trials, I meant you know, bond hearings too, and and and motions hearings. To what extent were you sometimes doing uh bench trials that were jury trialable? And and to what extent do you think that lawyers sometimes thought they would get they would get a better trial just by doing a bench trial in front of you rather than a jury trial?

SPEAKER_02 25:42

Well, at times they thought they were getting a better trial because uh who I was, they do a bench trial in front of me. That happened.

SPEAKER_01 25:51

Okay, so I get back to to what extent did you feel any discomfort uh knowing that uh you you weren't always able to know if lies were passing by you and you were accepting it as the truth? And to what extent did you have any uh discomfort about dealing with mandatory minimum sentencing laws, uh, if those existed in any other laws that you strongly opposed?

SPEAKER_02 26:16

One of the things you're able to do is have the prosecutor come up to the bench and discuss plea offers and what's reasonable and what the judge might think should be should happen. Uh, that hint is pretty strong enough to avoid the mandatory minimum problems with drug cases, for example. Um with regard to when they're lying or not lying, I mean the obligation of a judge is to stay out of it and let the jury decide. In the absence of some terrible behavior by one of the lawyers, uh it's just we're responsible to trust the process. And and actually, John, just because I think they're lying doesn't mean they are. I mean I'm sitting up there, I got the job, but that doesn't mean I'm right. I mean, I just have the robe. Uh and I I know that a lot of times we say they're all lying, but over 40 years of practice, I've discovered that not everybody's lying. Uh some are actually sometimes stumble into the truth, no less intend to tell it. Uh, and when it comes to law enforcement in the Bronx, when you have a law enforcement witness in the Bronx, the jury trial, the jury's gonna be more skeptical of the cop than I'm gonna be. Uh you actually have to charge them that they can't hold it against the cop, that the cop's a cop, in deciding whether they're truthful or not.

SPEAKER_01 27:54

Okay, well, of course, right. The jury has to decide whether to side, but now I'm getting back to when you were uh the fact finder when you were doing a bench trial, when you're doing uh the fact finder doing during a pretrial release or or bond hearing. How did you feel then, knowing that you you don't always know? You don't know who's telling the truth or not. You might be holding someone pretrial based on a lie, you might be finding a a probation violation based on a lie, you might be uh uh denying a suppression motion based on a lie. Yes.

SPEAKER_02 28:26

Right. I mean, that's the answer to that, really. I mean, I I will tell you, I did a number of bench trials, nobody was convicted. Just seems to be a miracle. Um with regard to the bond hearings, I uh we passed there was a new law here that there was a presumption of release without bond. Um, so that really cleaned up a lot of those uh problems. And I tended to release people. They would come back. Uh and I would tell them very clearly, I you know, I want to see you when uh you're supposed to come back. If you don't come back, I'm gonna see you again and you're not gonna be happy, and I'm not gonna be either. Uh and and I made sure they understood that this was a problem for them. Uh, and they came back. I mean, if you treat them with respect and with honor, they respond to that. It's odd, but it really is true.

SPEAKER_01 29:29

Respect and honor. So, how much of that is just rooted in your childhood or are are reacting to the judges who were respectful that you would watch and those who were disrespectful?

SPEAKER_02 29:42

I thought I wanted to set a standard. It was more my insistence that everyone who comes in front of me be treated properly. I mean, defendants were referred to by name, never by defendant. Uh they were greeted, you know. Good morning, good afternoon. Council give your appearance, you know, Mr. So-and-so, council give your appearance. Uh it made for a very palmer corner. I mean, we had some of the some of the uh folks that believe that the United States government can't control their motions of five percenters or uh, you know, I can't remember what they're called, but uh the idea is they don't acknowledge the government's authority. Uh and a lot of judges in the Bronx saw those cases. Some of them would just really go nuts about the whole idea. And my attitude was no, make your motion. I want to hear it.

SPEAKER_01 30:45

Right.

SPEAKER_02 30:46

Not because I was thought it was for mockery, I want to hear it because there's something to it. And a lot of times they'd go through the whole thing and then I'd ask questions and they'd have no answers because they just had a speech. I mean, they would rely on Coolidge versus New Hampshire in 1927, I think. Fourth Amendment case. We're past that. Uh, and that was the discussion. Discussion was okay, I heard you, you denied. This is the law now. Um, no reason to fight with the defendant, just make your motion and I'll hear you.

SPEAKER_01 31:21

So am I correct that uh your favorite line of legal work is doing criminal defense, not as a judge and not working with the legislature.

SPEAKER_02 31:33

The legislature job had certain things that really meant a lot to me. Uh, I worked on the gay marriage statute, I worked on statutes that really changed things, or the advantages of being so high up on the food chain that that's what you were working with. Um but it doesn't meet the rush of trying a criminal case.

SPEAKER_01 31:59

But but you were in uh in the middle of overturning the death penalty in Manhattan in uh in New York statutorily.

SPEAKER_02 32:07

Was but as a lawyer right in probably the statute of limitations on this has expired. Um when George Pataki became governor, he had pledged his first uh first bill would be a death penalty and it would pass. Um and there was a existing draft uh that had been floating around forever that frankly had a number of remarkably unconstitutional provisions uh in it, and some that had not caught up with the constitutional determinations. And so a group of us, a group of lawyers, met in secret and larded up the bill with all the unconstitutional provisions that had been decided by the Supreme Court and put them in the bill because we knew they were going to rush to pass it, uh, and then built the coalition uh in effect against the death penalty. There were a number of them, but we had little organizations. Uh, and the bill secretly got pushed forward by us to pass it, knowing that it just had all these uh bombs within it that would go off syriatum as each case came up to the Court of Appeals. And it worked.

SPEAKER_01 33:37

The movie traps.

SPEAKER_02 33:39

It worked, it actually worked, and in fact, we have a death penalty statute on the books that's unconstitutional and has never been amended to conform to the constitution.

SPEAKER_01 33:53

Uh at least when I um started doing criminal defense in the early 1990s, you were a mainstay uh in the continuing legal education programs. One of my favorites was when you were uh doing an uh I think it was um uh um a performance or an example of, for instance, of um cross-examining an expert witness for the prosecution. It was a doctor. And in the middle of this uh cross-examination, she said, uh doctor, what's that six-syllable word you said? You know, echimosis, echi, whatever, and you stopped in the middle in the middle syllable and you asked the doctor to finish the word, and the doctor couldn't finish the word.

SPEAKER_02 34:36

You had to start over at the beginning, right?

SPEAKER_01 34:38

Right. Where do you get up with get such ideas? Are they coming from all over the place? Where are you getting your brilliant ideas from?

SPEAKER_02 34:48

Well, they're brilliant, but they're certainly inspired. Um, uh they come from the moment. Um, I don't read my questions, I look at the witness, uh, I watch what the witness is doing, I see how they react. Um I cross-examined a psychiatrist in a death penalty case. Uh, and by the time I was done with him, they didn't use him again for quite some time. Uh he uh and I started him off right. I asked, Doctor, will you agree such and such? Well, blah, blah, blah, blah, blah, blah, blah. Doctor, will you agree such and such published in this journal? Oh, well, blah, blah, blah, blah, blah. Doctor, will you agree such and such published in this journal in an article written by you? Yes. Uh, the idea is say anything. And with that same doctor, I asked him about some project he was working on. And he did the routine where he turns to the jury and starts talking to him and got so in love with his own voice that he kept talking. So I left the podium and went back to my seat. When he was done, he had to look around to find where the examiner was. And the idea was, you know, I'm done with this one. Uh, it's just not worth listening to. So some of it's the theater of it, some of it's the moment, uh, being aware of the courtroom, uh, and having command of your case. I mean, command of your case lets you get away, get away with a lot of different things.

SPEAKER_01 36:24

Right. Well, so what is it in your life history um that makes you come across as being so in command of what you're doing in the courtroom, so confident. I mean, I I had a guest on, I won't uh name the person's name, another stalwart of uh NACDL speakers who talks about being nervous as anything in court each time. I mean, does that describe you? Where do you get your gumption from? Where do you get your mojo?

SPEAKER_02 36:52

Oh, don't don't mistake this. I'm terrified every minute. Every minute. I mean, uh my colleague after the cross of the doctor I was just talking about said, you know, I want you to know my heart was in my mouth the whole time. I looked at him and I said, Mine too. I mean, if you're not afraid, you're not paying attention. I mean, anybody tells me, oh, I love cross, oh, it's uh they're out of their minds. I mean, this is live. This is for all the marbles, this is dangerous. This is somebody else's life, for crying out loud. So if you're not afraid, you're not paying attention.

SPEAKER_01 37:29

Right, but you still have the uh the persuasive creativity. I remember, for instance, uh you were talking to us about the the Dunbert case soon after it came out. And you you talked about um, you know, Demberbert, for instance, um, prevents the promuscular from putting on um a so-called expert witness who's an expert um uh uh about that um the those um air the those fresheners and urinals are not mints, for instance. So where do you get all the inspiration for all these ideas you come up with? Other than just being in the moment, there must be something more than that. Maybe it was a rough and tumble upbringing. I don't know. I'm trying to figure it out.

SPEAKER_02 38:05

Beer. Looking like an idiot. Literally. I'm okay. And it's more important to witness look like an idiot than I did, so it's a competition.

SPEAKER_01 38:17

But did any of this uh does any of this have roots from before you went to law school, from just being out on the streets in New York?

SPEAKER_02 38:24

I mean, I was a Brooklyn kid and everything that came with it. Uh I uh was a radio reporter for four years in college. I learned how to ask a question and I learned how to shut up and listen, uh, which is probably the most valuable thing uh that taught. Um and and a lot comes from that. Uh radio is live, they can't see you, so you've got to do all of it.

SPEAKER_01 38:50

Yeah.

SPEAKER_02 38:52

And uh that helps the ability to describe, to tell a story, to see a story and act it out. All of those things are part of what I do. And I think about these things all the time. I mean, I may not have a case in mind, but I think about them all the time. I kind of collect the odd story that may help. Uh it's it's I'm a history buff. I pick up on that. I've read as many biographies of trial lawyers as possible, uh obscure and well-known, uh, and taken from that. I've watched when I was a baby lawyer, and even before, I'd watch other lawyers try cases and see what they did, what was right, what was not right. Uh, I tried a case for 18 months and sat next to a great lawyer who unfortunately can't practice anymore, named Ivan Fisher, and he would take any question I had. It was like a masterclass in how to cross-examine and how to try a case. Being exposed to it had more to do with it than anything else. And by the time I get to the courtroom, I've had all of those experiences and they're all available.

SPEAKER_01 40:11

Excellent. Uh your law firm's biography of you says that you represented Manuel Noriega. At what stage in his case were you representing him? And to what extent did you have uh uh person-to-person dealings with him versus just working remotely?

SPEAKER_02 40:28

I dealt with him directly. I was down in Florida on uh court appearances uh in the beginning. Uh I made the motion to have him declared a prisoner of war, uh, which changed his treatment and that they couldn't transfer him from prison to prison and gave him his own suite, really, in the jail under the uh uh rules of engagement or the Red Cross uh prisoner of war rules. Uh and the court granted it. So he was treated differently than any other defendant. And because of his status as a general of the army uh of Panama, he was entitled to be treated as a prisoner of war under the Geneva Convention.

SPEAKER_01 41:14

Uh and please remind me, I think he did go, he did get convicted through a trial rather than a plea, right? And uh and were you his lead lawyer at trial?

SPEAKER_02 41:23

I I was no longer involved after the motion for the prisoner of war. Uh the his money ran out. The court said they would appoint uh two CJA lawyers. Uh the lead guy was Frank Barbino, uh, and we agreed that he needed someone down there who can do the legal work and the legal writing. Uh, and I was just too far away.

SPEAKER_01 41:53

And uh you mentioned the IRA. What kind of work were you doing with the Irish Republican Army?

SPEAKER_02 41:58

Spent 15 years representing them in our federal courts in a number of cases, uh munitions charges, immigration charges, things like that. We uh the first Irish Republican Army case, the lead defendant ended up getting acquitted and marching down Fifth Avenue on St. Patrick's Day that year, when the Archbishop of New York would not come out on the steps of St. Patrick's to greet the uh marched uh marshal. Uh but I represented uh them. Excuse me. We traced guns from New York to North Carolina and from North Carolina into Paraguay and brought back the man who provided the guns. Uh the understanding was that it was a CIA operation. Uh we had Ramsey Clark testify uh that uh when he was Attorney General of the United States, the Central Intelligence Agency kept him in the dark on their criminal activity. Uh we even had Bernadette Devlin uh come in as a character witness for one of the defendants. Uh and we got him acquitted.

SPEAKER_01 43:17

What um what do you do to win cases other than and maybe you're gonna say this is all it is? Maybe you're gonna say it's just everything you talked about. Fear, concern for the clients, uh preparation, uh, you know, just your your your mass of knowledge. What else is there? Is there anything left?

SPEAKER_02 43:41

Preparation rule is a dollar uh uh an hour of preparation for every minute is my rule of thumb. Um because there's always something you're missing. You're never you're never ready. You stand up and say ready, but you're not. There's always something something you haven't thought of done. So that's one thing. And fear drives, you know. I used to tell the people who work for me, they're in jail on holidays, on weekends. When you're somewhere else, they're in jail. That's our obligation. That's what we're supposed to be dealing with. And I just am driven that way.

SPEAKER_01 44:27

Okay, so I think you're a great teacher. You talked about one of your teachers who you're in that uh long trial with who have been your other great teachers?

SPEAKER_02 44:42

Albert Krieger, easily from Miami. Larry Posner and Roger Dodd, who were actually more contemporaries of mine, but I convinced Roger to mark up all my cross-examination transcripts on a trial I was doing just to see what he thought. I wanted to know what he thought. Um they were great creatures. Um some of the local lawyers. Uh Michael Dowd is a lawyer in town who I clerked for, who I just followed around uh for a year watching. You know, there's so many. I mean Charlie Gary out in San Francisco who's passed away, who was representing Huey Newton uh and the Black Panthers out there, uh Jerry Spence who I've taught with. It's hard to like single out who they're all teachers. I mean, if you think about it, we're all kind of troubadours who go from place to place, would have our own act, and there are others watching us all the time. I I think it's important that we watch each other, and that's how we learn. Uh you learn how not to do things too. I mean, you want to watch something go wrong, best it's someone else doing it than you. Um and and sometimes uh the best teacher is the experience of making a mistake.

SPEAKER_01 46:31

When did you um when did you leave uh being a judge and come to your current law firm? And uh have you had any jury trials yet after leaving your role as a judge? And do you have any lined up?

SPEAKER_02 46:44

Um I've been in this firm about a year and a half. I uh retired from the bench and lasted three days, and immediately all these guys got it off. Um I don't have any lined up only because of the structure of our firm is such that you're not lined up until it's actually a trial date. So I don't have any, a lot of things I've been working on are appeals or motion practice in anticipation of trying some things. Um most of whatever I'm gonna try would be in federal court, but as you know, there's so few federal trials that most we please. So I don't have anything lined up at the minute, but I'm certainly you know willing to be lined up. Uh and uh I'm ready. I've I haven't tried a case in quite a while. Uh I'd like to think I'm rusty, but I'm not. Uh and uh frankly, I'm champing it the bit more than I'm anything else. Of course, God help you for what you want, but they ask me to tell you what you want.

SPEAKER_01 47:57

But there was a member of the NA CDL in the early 90s, and he said that a close relative of his was charged with murder. You represented her, you won the trial. That led to him becoming uh joining as a lifetime member in the NACDL. I'm not gonna pry into your attorney-client relationship there. I'm not gonna pry about whether you reduce your fee, but I'm gonna tell you, David, that's one of the things that has kept you as one of my heroes. Uh I said to myself, here's a fellow member of the NA CDL told you about the problem. Not only did you step right up to the plate, but you won the case. Not all these cases get won.

SPEAKER_02 48:42

You get lucky sometimes. You get the right case at the right time. I mean, it's really lucky to drawer, and and you work as hard as you can to figure out which is the one that's that. You know, you want them all to be like that.

SPEAKER_01 49:00

But right. Well, well, that's right. And then, you know, even when we have the so-called smaller case, you know, for the Laura might be a smaller case, but for the clients a big deal. So I said to my client who had this uh uh this misdemeanor case in court, I said, look, the prosecutor's offering to continue the case for a few months, consider dismissing the case. I don't trust her a bit. I think she's just gonna try to prepare the case better. But we do have this additional evidence that you may want to deal with and hold them off on, but we've got the best judge in the courthouse here. And um talk about colleagues helping out, David. I spoke to one of the uh uh most experienced public defenders in the courthouse. I said, look, I think I'm right that we need to go forward today. I said, my client's crapping in his pants. I had his permission, you know, to talk to her about whether to go forward today versus uh getting the case um uh tried later. We won. We won on the motion of strike, the motion on judgment of acquittal, without my client even having to testify. And I sent out an email to the public defender. I said, thank you so much for giving me a backup, that it wasn't just me talking to my client about having the uh the testosterone or whatever you're gonna call it to go forward and have a trial that day and win. Uh, but I had a colleague, you know, I was able to say this is one of the chief public defenders in this courthouse who knows this judge better than I do, and we went ahead and we won the case.

SPEAKER_02 50:26

Well, you're using the resources available to you. Um, I tried a case in Westchester that I lost actually, but uh in trying to figure out how to handle it, I convened a group of friends that worked at legal aid in Westchester County and tried the case for them, basically. Did the opening, worked on jury selection, using them as a sounding board. And the other thing I've done, which I recommend, and everybody's gonna laugh at me, but I will tell you if you can get the opportunity to teach a social studies class when you have a case for trial, and you use that class as a voidier panel, you will learn everything you need to know about the weaknesses of your kids. Because they don't have the social uh adjustment to not speak their minds. So they'll say things that you may or may not have considered, but you have to. The eighth grade is the most truth-telling grade in the I think in the entire education system. And if you can try your case to them, you'll learn a lot.

SPEAKER_01 51:38

Okay, and uh how do you go about getting access to these eighth graders?

SPEAKER_02 51:43

Call the local junior high or high, whatever grade is, and offer to teach a uh social studies class and tell them who you are.

SPEAKER_01 51:55

You mean you you become a guest speaker in the class? Right.

SPEAKER_02 51:59

Yeah. I don't know of a single teacher who isn't willing to let a responsible person teach their class and let them watch. It's an easier day for them.

SPEAKER_01 52:11

Excellent idea. Now, um what have what have your been a your approaches for dealing with clients who really are not playing with a full deck or don't seem to be playing with a full deck, uh, don't didn't seem to realize or don't seem to realize how great a lawyer they have in you, are just clients who think that they they're so smart, so much smarter than you that they can send you up a wild goose chase. And if you'd have to let them know, look, if you want my full firepower, don't be lying to me. You know, have have me going in the direction of preparing your case right, not in following false leads.

SPEAKER_02 52:47

Well, conversation that basically says two things. One, I don't like surprises, and two, you got to tell me the truth, otherwise, I won't know what to do, and I'll make a mistake in conviction. Absolutely conviction by mistake. And that tends to really weed out most of that. Uh, clients who, as you said, not playing with the full deck, it depends really what the situation is. I mean, some of them are delusional. Uh, the basic rule of delusional clients is that you live within the delusion to get to the purpose you need to get to. Because you can't fight the delusion, you're not going to get anywhere. That's the nature of a delusion. And sometimes they think they don't want you because if they, you know, a lot of times if you were court-appointed, they would say, Well, I need a real lawyer.

SPEAKER_01 53:41

Right.

SPEAKER_02 53:42

You know, and the judge might say, you know, you got this guy's on the panel as a favor to us. It's like, uh, I want a real lawyer. And I've had a couple come back and say they've made a mistake. Um, but that's the nature of the business. And it is a business. I mean people shop cases, they shop around even if they've got a case. In New York, an awful lot of people go in and say, I can get you a better deal to basically poach the case. Uh, there's very little of that going on now, but it used to be much more prevalent. Uh, they used to have paralegals who shake the tree, go into the jail and sign everybody up. They could. Um, but that's the client's decision. I mean, there's a reason they're clients, poor judgment usually.

SPEAKER_01 54:36

Right. Well, you know, I I want to address that. So, how much were were you on the receiving end of uh of other laurers trying to poach clients from you? And and what would be your response than just telling your client, look, I you know, I I what I tell my clients or potential clients is I want the best result for you, no matter who you're with, whether it's with me or someone else. You want to go with another lawyer? I mean, I just hope they do a great job for you. You know, it's it's nothing about, like you say, it's about the defendant, it's not about the lawyer, you're not supposed to be.

SPEAKER_02 55:06

Right. And if you want to go somewhere else, go. It's you know, uh, it's a mistake, but it's your mistake, not mine. I mean, no one's then no one's all gonna like you. Right? Sometimes the best relationships I've had with the clients are when we don't like each other. Ironical enough. Because it's like this is what we're doing, I'm doing this. I'm doing this to get rid of you, to win this case so I don't ever have to speak to you again, kind of. I mean, you don't say that, but it's kind of in the back of your mind. Um, and a lot of times they come to you and say, Well, I heard that I can get it's like, okay, who told you that? Well, I've heard from a guy. I said, Well, tell him the guy have his lawyer, call me, because I'd love to know how to do that. Well, don't call me because if I could find out, I'll do that for you. And that's sort of that's the end of it. You don't hear it again.

SPEAKER_01 56:04

Have you had um close relatives or neighbors, you know, people knowing you on a day-to-day uh basis who are hostile towards the work you do? And and something that sums this up for me was uh that I worked at the old Irving Trust Company, you remember them, uh, during the year before, uh between college and law school, as an and I was an internal financial auditor. This was 1985 to 86. And and I'm there over at their uh uh their cafeteria with my colleagues at 10 Barclay Street or whatever it was uh on the uh Hudson River, and uh and and I and I mentioned that I was a card-carrying member of the ACLU. I I realized that would get to go to some people. And uh one of the my colleagues he said, can I see your your uh your membership card? I said, sure. And I handed it over to him, and he he found a knife and he said, Should I cut it up? And I said, I'll just get another one.

SPEAKER_02 57:02

Um I tried a case in which a uh off-duty police officer shot and killed someone who had menaced his father with a bat in uh the town adjoining where I live. Uh and as my practice uh with my children, anytime I took a case that would be notorious, uh we'd have a dinner table conversation. Like, this is what's going on, you're gonna hear stuff. Anything you want to ask me, ask me. You know, don't nothing that you hear in the house comes out of the house. Uh and when I was doing this case, the social studies teacher in the grammar school had my son stand in front of the class and explain why his father was trying this case, defending this case. Um, so I had a chat with the superintendent schools about what's proper and what isn't. Uh, and uh the same case they had a mass meeting. We were trying to get discovery. The DA was Janine Pierrot, who you could watch on TV now.

SPEAKER_01 58:15

Yeah, she's interviewing me.

SPEAKER_02 58:17

Yeah, and uh they wouldn't turn over the autopsy, which made no sense. It's a shooting case, we needed it, they're required to turn it over even under the discovery laws in effect then. Um and so I basically said in open court that if we don't get the discovery, and we don't get the autopsy, I'm gonna move to dig them up under the public health law. And that caused quite a stir, I might add. Uh, first because it was racial, supposedly, and second because it was just so horrific to even think that way. And they had a mass meeting in the church in the adjoining town to deal with this somehow. I don't know how they're gonna deal with it. Um so I went. I went and I sat in the back of the room till someone jumped up and yelled, Eddie's here, you know. And I and I stood up and I, you know, and I waited time. I yelled a little bit, and I said, Do you want to know why I'm doing that? Don't you want to know why? Yeah, yeah, why? I said, Well, because we're entitled to the autopsy, and she's not giving it to us. Call her, tell her to give it to us, we won't dig them out. Right. And it sort of took the wind out of everybody's sale. There was a lot of sense that I was gonna try that on a racial basis, and I didn't. It wasn't a racial case, it just happened to be a fact.

SPEAKER_01 59:48

Yes, David, I told you we're gonna finish at five o'clock as much as I'd love to go on and on with you. However, I think you've you're gonna say you've said everything you think you need to say, but is there anything else you want the audience to know before we uh part for the day?

SPEAKER_02 1:00:06

Thank you, though.

SPEAKER_01 1:00:08

Well, thank you for the 33 years of inspiration and teaching you've given to me. Uh, I've said it to so many of my uh hero guests like you, that one of my martial arts teachers, uh David Walls-Kaufman, says, do not let your teachers forget how much you appreciate them. I appreciate you so much. Just months can go by and all of a sudden your voice, your words, your teachings come uh come to light at just the right time or come back to my memory. I appreciate it so much. Everybody, you've heard from David Lewis, a great lawyer, a great person. David, please remind everyone the name of your law firm if they want to find you over in New York.

SPEAKER_02 1:00:55

And we're in midterm in that.

SPEAKER_01 1:00:58

Thank you, David. This has been John Katz with Beat the Prosecution. I'm a criminal defense and DWI defense lawyer in Fairfax, Virginia. David, please stand by.

SPEAKER_00 1:01:09

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. Nothing discussed on our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or to individuals who have paid for a consultation. We welcome you contacting us via email at info at beatheprosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.