Norm Pattis

Fieger Trial: A Special Thanks To Spence

I'm home now, back in Connecticut, after a long day of travel and alot of time to think about the doings in USA v. Fieger. The Government is about to rest, and then there will be fireworks aplenty. But before reassessing the trial, a long look in the mirror is in order. What I see will take a long time to sort out.

I hadn't seen Spence in about eight years, and our correspondence broke down when I decided to shake loose of the man. I've been hard on him since, and publicly so. But I still wanted to see him in action, critique the courtroom persona against the man walking the hills at dawn in Wyoming. I was nervous, though. I did not want a confrontation with him. Indeed, I expected not to talk with him at all.

I stood outside Judge Borman's courtroom one morning, arriving early to make sure I had a seat. As I read, I heard a familiar voice booming down the hall, not quite so loud in the early morning hour. A man turned the corner. I looked down. But I could see the man pause as I came into view. There was a moment's hesitation, and then he came toward me, arms wide open. We hugged and took one another's measure. The we sat to talk about the trial and the ranch.

Odd how it seemed as though nothing had changed. We were two fishwives, comparing notes on the cost of justice. For the two days I observed trial, Spence flattered me by finding his way to where I was sitting, each time asking how he was doing, wondering whether he had pushed the envelope too far. How was the jury reacting?

I kept telling him I really don't know. I've been following the case in the papers, with snippets of gossip tossed my way from time to time. "You know," he said. As we talked, he pulled his client aside. I took Fieger's measure, and he mine, no doubt wondering why his famed lawyer was consorting with a tired looking man in jeans and a pony tail. Spence asked me to tell Fieger what I thought of something in the trial. I tried to protest, but Spence is, well, Spence. I was harsh, as is my way. Fieger was good natured and teased me about it the next day.

Folks came out to see Spence, just as I had. One stopped us as we talked to get a book autographed, another wanted to talk, sometime, someday, about something. After the first day of trial, I left quickly, leaving room for others.

"You snuck out," Spence said this morning.

"I figured you needed room to breathe," I said. He smiled.

At day's end, I put my hand out to tell him goodbye.

"You're leaving? Now?" he said.

"Yeah, I'm checking out a bookstore and heading home." I turned to go. Goodbyes are always hard for me.

"Norm," he called out, sitting in his chair, spent after a day of cross. I turn and start to walk toward him.

"You know, I've never stopped caring about you." Simple words that stun me into silence. I mumble something and turn to walk out the door.

All day I thought about his greeting and his farewell. All day I thought about what I learned from him in his Wyoming barns. I know now that he is no different in court than he is at the working play at the ranch. His talk matches his walk.

But I learned a whole lot more this week. The genius of the man is his embrace of fear. He could have returned my scorn by simply walking away. It occurred to him for a moment. But he never runs away. His hug was a confession of sorts, and it unstrung me. And the farewell? Again courage. There was blood on a courtroom floor and strangers milling about. Yet simple kind and loving words that took courage to utter.

I lacked the courage to return them then and there. I regret that.

The truth is that I've never stopped caring for him. Perhaps these words will find their way to him.

Fieger Trial: The Tyranny of the Reasonable

There comes a point in every trial where lines are drawn and warfare yields bloodshed. Today will be such a day in the case of US v. Fieger. To win this case, Fieger's lawyer, Gerry Spence, must strike boldy and without fear. He must topple a tyrant today, and that is the tyranny of the reasonable.

"Why did Spence take this case?" a fellow asked me in the gallery yesterday? "Don't ask me," I said. "I am just a spectator." But the stakes are pretty well displayed in a note to yesterday's post here "Will Spence Matter?," sent pseudonymously by "Deepthroat". The case is less about Fieger than about the Government's power to consume its critics under cloak of law, he writes.

Deepthroat writes with the passion of the converted. He reminds me of a student I saw at TLC, a wealthy man in his own right from the Southwest who has declared himself a latter-day Sam Adams; he literally bought himself a place in the hearts and minds of students and staff alike. He, like Spence, knows the people and their needs. Leave him be to fight the people's fight. He, like Spence, knows best. In Deepthroat's view the Fieger trial is a political trial. Fieger may be a fool, but so is everyman; so, for that matter, is the Government. Hence, the fight. Perhaps. (Memo to Deepthroat: I have not received a target letter, but I have thus far in my career been advised to take the Fifth when once the Government asked questions.)

In US v. Fieger the atmosphere in the courtroom is calm, sometimes circuslike. Judge Paul Borman struggles valiantly to create an aura of good cheer. At sidebar, he smiles, nods, cajoles the parties to see the law as he sees it. It is easier to rule that that way. Government's counsel stands, arms-clenched, jaw tight, a vice squeezing itself. Spence, by contrast, lumbers; he stands close to the judge, preaching the people's case. Today he must find a way to preach to the jury and not the judge.

Lawyers and judges share a hermetically sealed world of case law and convention. We take the fact patterns of other lives and impress them into forms known at law. Over the course of years, we acquire a sense of what is reasonable based on what has occurred before. Reasonableness can cripple a lawyer.

Spence needs today to shake loose of Judge Borman's tethers. The facts and the law work against Fieger in this case. If Deepthroat is right, and this case has larger significance, then Spence must take the case to the only people who really matter in this case, the jury. He can't do that at sidebar. When the Government objects today, as it will, and the Court calls for a sidebar, Spence should stand his ground and withdraw the question. Let the people hear the case, he should intone.

Of course, all jurisprudential Hell will break out at that point. And perhaps it is time that such a thing happen. Jury's can't nullify, we say in the law's chambers, but they do decide cases. Their vision of what is reasonable will yield a case's outcome.

Of course, such a course can backfire. The law, some say, is reason's thread, the tie that binds us together. A jury could well find that Fieger's conduct showed arrogance bred of wealth. The testimony yesterday certainly shows how soiled is the election of judges; the Fieger firms spends a good deal of time and money supporting candidates of its choice. Just who elected them to represent the people anyhow?

And what of Spence, the man who never lost a criminal case? I have not, Deepthroat, come to bury this man. I've come to watch to see what I can learn. I have great misgivings about his pride, and about your arrogant claim to be some sort of secret representative of "We the people," knowing what is best for us when we ourselves are too daft to notice. Reading Deepthroat's note reminded me of long summer day's and nights in Wyoming on Spence's ranch, and the mad scramble among the converted and those who wanted badly to be regarded as notiates to see who had the biggest, er, anatomy of all. Deepthroat, my dear, yours are fine, but a psuedonym? What cowardice? Say what you mean and own it man. I've said my piece about Spence and have, as I did yesterday, looked him in the eye after saying it. Truth doesn't lurk in the shadows.

Is this a trial about an evil administration bent on destroying the people? I don't think so. I think it is a case about what Fieger may well have done to himself. Whether Spence can make the jury care enough about his client to acquit is a test of his greatness. Whether the jury gets to that issue is the test that answers whether even a great lawyer matters when confronted with bad facts and bad law.

Fieger Trial: Will Spence Matter Tomorrow?

I may as well be in Dayton, Tennessee in 1925. A great lawyer is going to cross-examine a buffon tomorrow. It's Gerry Spence versus Special Agent Ayr O. Gance. Spence will slice, dice and shred this wisp of man. He will entertain and perhaps educate the jury using all the tools of a trade he has mastered in a lifetime of brilliant work.

Will it matter? Darrow lost the monkey trial -- the facts and law were against him. But history recalls the loser. Why? The message was more compelling.

In modern times, bumbling federal agents often make trials far more interesting than they should be. Why? They cannot give a simple answer to a simple question. They spend too much time trying to outwit the defense lawyer during cross examination. I've never seen a deer stare down a speeding car.

Here are some inescapable truths the FBI agent in this case ought simply to give up lest he and the bloody mat covering the courtroom floor become indistinguishable:

1. The FBI does not have a policy requiring that interviews of subjects be electronically recorded. That is because law enforcement wants flexibility in its investigations. It might make for a better record in cases to record interviews, but it is not done. Yes, it would have been more fair to tape all interviews in this case.

2. The agents involved in this case were all hot and bothered about taking down Fieger. The brash lawyer has been taunting law enforcement officers for years. His apparent fall from grace was a source of some twisted satisfaction the agent cannot deny.

3.  The Fieger investigation was special. It was directed from Washington and scores of agents were used in a manner unlike any other campaign finance investigation the agent is aware of. You don't hunt elephant with a fly-swatter.

4.  The agent was from time to time rude and overbearing, and, at times he misled folks. Civility is not required by the law. Indeed, the United States Supreme Court has sanctioned deceit by law enforcement officers.

In other words, the agent should stop acting like a, well, Richard Tracy, and just answer questions. Instead, misplaced pride will yield a wildly entertaining cross-examination. The agent will be at times defiant, reflective, evasive and even truthful. But he'll also come off as a used car salesman.

Who is responsible for the training of federal agents on testifying in court? That person should be tarred, feathered and shipped to Iraq in a prayer rug. I have never cross-examined a cop or FBI agent and not had a field day. Truth is simple and univocal. Speak it in words such as yes, no and I cannot answer that question with a yes or no.

Have fun tomorrow, Gerry. Slay the beast sitting smuggly on the stand. But don't lose sight of the following: When the show is over the jury still wants to know why Fieger was using strawmen to finance a fellow trial lawyer's dreams of power. The facts seem clear enough on this record.

The sad reality of criminal work is that just as a prosecutor can indict a ham sandwich, a prosecutor with a pulse can sleepwalk his way to a win. Lynn Helland showed nothing in court today, except patience. Sadly, that may be all he needs to get a verdict.

What Happened To Detroit?

I am on a busman's holiday in Detroit and had some free time today. I drove over to the East Side to take a look at some of my old neighborhoods. I graduated high school and fled this place a long time ago.

No way I can go home again: Most of the houses I lived in are gone, erased, kaput, vanished. Even the Ivy Elementary School has been plowed over.

We moved from year to year, always in search of a better rental. I got to see alot of the East Side. But the house we lived in near Jefferson and Philip? Gone. In fact, the whole block is all but gone. There were dozens of houses there once. Now there is nothing.

I traveled a few miles to check out the house on Marlborough. Gone. Elmdale near Chalmers? Boarded over. The houses of friends are gone. One place I remembered well was still standing, but every portal was boarded over. Block after block after block of devastation. I felt as though I were in a third world country, or that, perhaps, I had tumbled into too long a slumber and awoken like Rip Van Winkle some 20 years later, although this time after a plague.

The city seems to be dying; at least the part of it housed working people hoping for something better someday. What happened?

Fieger Trial: The Special Agent Testifies

I did not quite score a front-row seat in US v. Fieger today. Those were taken by the lawyers trying the case. But I wasn't far behind the bar. It was a good day for the Government, if the jury was paying attention.

Fieger and a partner stand accused of violating campaign finance laws by using strawmen to contribute to the presidential campaign of John Edwards. There was an avalanche of evidence today in support of that claim. U.S. Attorney Lynn Helland produced hour after hour of documents and monotone by the lead agent in charge of the investigation.

Most powerful evidence? People working for Fieger earning $1,100 in biweekly salary contributed $2,000 to the campaign. They were then immediately reimbursed for the contributions by Fieger's firm. This much seems indisputable.

It should have taken a half an hour to produce this evidence by way of an illustrative chart, but Helland seemed intend on milking the clock for all it was worth. He is short man, not quite trim, with the bearing and countenance of the owner of a failed apple orchard: everything is a scowl. What personality he had at birth has been submerged and hidden by a mountain of sorrows.

Of course, one needn't have a personality to be a prosecutor. Indeed, passion is an invitation to claims of prosecutorial misconduct. Defense counsel get to act up. Defendants should not.

I sat several rows behing Fieger and I was stunned. Judge Paul Borman uses a white noise device to fill the courtroom with an annoying static while side bars take place. The jurors seem to have bonded, and were animated during the morning's side bars. As they giggled and gabbed, we spectators sat quietly. Not so, Fieger. He beamed as though he were still running for Governor. I kept looking to see if his bright countenance was returned or ever acknowledged by jurors. It appears not. Is he kissing babies at a morgue?

The day's session ended at 1 pm. Helland could not quite fillibuster the day away without turning the proceedings over to the defense. Gerry Spence wasted no time grilling FBI agent in charge of the investigation. Why hadn't one of the agent's interview with Fieger been taped? No federal policy to tape such interviews, the agent said. Yet the same agent tape recorded a telephone conversation between a fired Fieger employee and Ven Johnson, Fieger's partner.  It was a classic encounter between agent and defense lawyer: ask a simple, but pointed question, and then suffer the monotonic chatter of an agent who wants to be in control.

The day ended dramatically, which, I am sure, was no accident. When Spence challenged the agent by asking whether the case was a big deal to him, the agent sputtered. Spence then asked, "Can you tell me a case in the history of the world in which ..." "Objection," the prosecution interjects. "Okay, the United States," Spence says. The court summoned counsel to a sidebar, tossing aside that the question would be improper even if confined to Michigan.

Oddly, the judge dismissed the jury and then resumed the side bar when the jury was not even in the room, insisting that the white noise still sound so that assembled spectators could not hear legal argument. What kind of nonsense is that, Judge Borman?

Cross-examination resumes tomorrow. Spence is clearly a great showman, and the jury is entertained. But the evidence, well, the evidence speaks for itself, and, depending on the judge's charge to the jury, it may be enough to convict. The defense needs to decide on its primary theme: either the conduct is perfectly lawful and it matters not what the defendants knew, or the defendants knew nothing.

And the biggest question of all: Will Fieger testify? Based on what I saw today, I would beg him not to take the stand were I his counsel. He seems not to understand just how perilous is his position in that courtroom.

Fieger Trial: A Kiss, And Now A Trial

  Reprinted with permission of the Connecticut Law Tribune.

I didn't get much sleep last night, so forgive me if I ramble. I don't have much time, and then I am running out the door. I want to get to the courthouse early enough to be sure I am admitted.

You see, I write this from a hotel in Detroit. Yesterday afternoon, I cleared my calendar, rushed to the airport to catch the last plane from Hartford, and booked a room at the Marriott at the Renaissance Center. I got to bed around 1 a.m., tossed and turned, and then sat up waiting for my 5:30 wakeup call.

All this to watch another lawyer cross-examine an FBI agent.

The case is captioned USA v. Fieger. It's been limping along in the Eastern District of Michigan in the courtroom of Judge Paul Borman for about three weeks. Geoffrey Fieger is accused of violating campaign finance laws by using straw men to avoid contribution limits in 2004 to shuffle some $127,000 to John Edwards's presidential campaign.

Fieger is a high-flying plaintiff's lawyer, sort of like all of the folks in the Koskoff firm combined, but without the Connecticut firm's apparent class or self-restraint.

Whether he wins or loses the trial is of no moment. What I came to see is Gerry Spence. I have heard the legendary trial lawyer talk the talk, strutting like a peacock in his barns in Wyoming. But until today I have never had a chance to see him in court. He is now 78 years old; this may be my last chance.

I am filled at once with affection for a man I have publicly scorned over the past decade. After attending the trial lawyers college he founded on his ranch, and then serving on the college's staff for a couple of years, I decided I would carry no man's briefcase. I would rather sink or swim by own feeble efforts.

But here I am in Detroit. What is it about Spence that so engages me?

In some respects, he is the father I never had. We got close in Wyoming; perhaps too close for the likes of me.

I recall a hot August day in the milk barn. There were 10 or so of us engaged in psychodrama in a small room. We were enacting powerful scenes from our personal lives, getting in touch with currents busy lawyers are often forced to ignore.

I plunged into darkness and decided to explore the role my missing father had played in my life. He disappeared from our lives when I was eight. Did his absence explain my angry swagger?

Spence played the role of my father. Things unfolded and there he lay, as still as death on the floor of the barn. I was standing beside my father's casket. I told him how much it hurt me that he was gone for so long. And then I told him I loved him still. I bent to kiss the lips of a departed man.

After it was over, Spence sauntered up to me. "No man has ever kissed me on the lips before," he said. I assured him my intentions were benign. We spent time afterwards together at his home and in other cities.

Years later, my father reappeared as if by magic and has since died. I attended his funeral. I said my goodbyes. Spence was there, too; at least in my mind he was.

Detroit is the city I lived in when my father disappeared. It is the city in which Spence now tries what will most likely be his last case. I won't seek his attention. He is in trial, fighting the government, a role he relishes with the commitment of David looking for just the right stone. Spence is our generation's Darrow, but with the unreconstructed heart of William Jennings Bryan.

I am here to watch a great cross-examination, I tell myself over and over again. But I know a larger truth. I am also here for reasons having everything to do with a wayward kiss given one day a decade ago.

            

Fieger Trial: The Last Chance To See A Master

DETROIT -- This afternoon I checked the news to see what was happening in the Fieger trial. It appears that on Thursday, the Government will put its case agent on. Then Gerry Spence will cross-examine the man. I sat down to write about this showdown between the lawman and one of the last remaining populist cowboys in America.

"I would give an eyetooth to see that," I started to write. I looked at the clock. It was just after three. To hell with the eyetooth, I concluded. I booked a flight to Detroit and am now at my hotel in the Motor City, some eight hours later. I'll be up early tomorrow to get a seat in the courtroom.

I went to high school here, graduating from Denby High School a long, long time ago. The city scared me then. It seemed friendly tonight as I made my way downtown. I plan to check out some of the old neighborhoods after trial tomorrow: the court day goes only from 9 a.m. to 1 p.m.

On the flight over I wondered why this extravagance? Haven't I enough to do in Connecticut? But then I remembered traveling to Spence's ranch in 1997 to spend a month at the Trial Lawyers College. I returned the next two years to serve as staff. I went to Wyoming to see what Spence had to say. But I never got to see what he could do. That will come tomorrow.

But it is more than simply wanting to learn from a legendary lawyer. As the plane bumped across the near midwest, it struck me: Spence is our century's Darrow-like figure. But, oddly, he is more of a populist than Darrow ever was. He's not book-learned, although he is the author of many books. Imagine William Jennings Bryan as a trial lawyer; Spence as the great commoner. Reverse roles at the Scopes monkey trial and imagine Spence as Bryant devouring Darrow.

Tomorrow and the next day I suspect I will see an age-old theme re-enacted: David sauntering up to Goliath in the name of the people, trying to topple the behemoth. The themes may not quite fit the facts in this case. Fieger isn't exactly Pa Kettle fighing off the robber barrons. But great trial lawyers paint in colors bold enough to find their story in even the most dissonant facts. Tomorrow is Spence's last chance to preach about the people and liberty when liberty is quite literally on the line.

There's a light drizzle in Detroit tonight. I've packed a fresh shirt and will request an early wake up call. I want to get a seat in the courtroom, if I can. Tomorrow may be the last chance ever to see Spence cross-examine an oh-so Special Agent of the FBI. I'm glad I made the trip all the way here, eyeteeth or not.

I'll keep you posted.

A Powerful Argument Against Mass Transit

Or, good thing Bernard Goetz wasn't on the train. Hat Tip: Mike C.

Why Did Dickie Do It?

I admit to jealously of the likes of Richard "Dickie" Scruggs. That must explain the glee I experienced when he stumbled. "You see, those flying too close to the Sun are doing something wrong," a nagging and hateful voice hissed. I suppose that helps me justify my place in the middle of the law's pack. I don't get big verdicts because I am honest but no less able.

This is thin gruel, but on such do I feed.

This week's New Yorker featured an article by Peter Boyer on Scruggs, The Bribe: How the Mississippi lawyer who brought down Big Tobacco overstepped. How did a lawyer who has earned more than a billion dollars in legal fees manage to stumble into an indictment arising from bribery of a judge?

Boyer's piece lacks heavy-handed moralism. He doesn't cluck with disdain. He traces Scruggs' rapid rise to wealth, he only made the cash cows really bellow in the mid-1990s, and his just as rapid fall with grace. Ironies abound. Scruggs is known as a great trial lawyer, yet he's gone to verdict no more than ten times, a busy year for actual trial lawyers. He was generous to a fault with strangers, but tight-fisted with those to whom he had made promises. Scruggs was a master of manipulation, preferring to attack outside the courtroom, calling on lawmakers, the media and lavishly paid whistleblowers to make cases against corporate giants.

It all came tumbling down around Scruggs over a fee dispute with another lawyer. Scruggs became embittered when folks asked for their share of a fee. He'd rather fight than pay. This man with money to burn would rather smell smoke than make amends. Which of the seven deadly sins was his undoing? It was not greed; he was generous. I suspect the sin was pride, or maybe simple sloth regarding the things that really matter.

In the end, Scruggs was unstrung over a $50,000 bribe to a state court judge in Mississippi, Henry Lackey. It appears as though Scruggs did not instigate the plan to pay the judge. Credit for that goes to a hanger-on by the name of Tim Balducci, who threw Scruggs' money around as though it were his own. Judge Lackey was stunned by Balducci's audacity, and agreed to wear a wire. After the feds nailed Balducci, he, too agreed to wire-up. He then marched into Scruggs' office looking to save his own hide by delivering Scruggs'. As reported in the New Yorker, Scruggs said just enough to place his neck in a federal noose.

Scruggs' has pleaded guilty to a conspiracy count and may be sentenced next month. When I first learned of his plea, I was angered and convinced that a prison term was required. After reading the New Yorker piece, I am not so sure. Scruggs was larger than life, to be sure. And bribing a judge is a serious crime. But he was not the principal actor in the bribery plot; Scruggs merely fell into it without looking, throwing money around as if it meant nothing, which, I suppose is the sad truth in this case.

I'm still envious of Scruggs and the big settlements. But I would not want to be in his position when he faces a federal judge for sentencing. Thanks to a fine piece of writing by Peter Boyer, I suppose I am also grateful for the mere modest talents I possess by comparison. It would be easy to err as Scruggs did. Another viewpoint

Class Day 2008, Who Is The Speaker At Yale?

Give me a break, will you? I pumped about $150,000 into Yale College for the past four years, educating my youngest child. (Let me boast: the future doctor is a science whizz, claiming both a bachelor's and master's degree this year.) Graduation ceremonies are set for the Memorial Day weekend.

I loathe graduation ceremonies and did not attend a single one of my own: not high school, not college, not graduate school, and certainly not law school. Attending these ceremonies has only become mandatory by order of my wife for our kids' graduations. That means I had to sit through Rudy Giuliani's gibberish at Middlebury College for my oldest a few years back. (We all brought books and read in protest as he chattered. You see, my wife is a red baby, and her parents remain to the left of left. I am proud that my father in-law, now deceased, did federal time rather than swear a loyalty oath in the 1950s.)

Yale does not deign to have a commencement speaker. It is too proud to do things simply. I suppose the graduation is to speak for itself: we got the degrees, what more can be said? But there is a big time speaker at class day, a ceremony taking place the day before graduation.

Yale is not disclosing the identity of this year's class day speaker. The State Department has asked it not to. Secret Service agents are visible in New Haven. Rumor has it the speaker will be former Prime Minister of Great Britain Tony Blair, who is scheduled to teach at the university next term. Yale Daily News

All this cloak and dagger play is offensive. And what compels the overlords at this status factory to bend a knee when the Government says bow?

I've litigated plenty of cases against Yale and involving Yale employees. Subpoena an administrator and you are treated with contempt. The university is older than the United States, and it acts every bit the snotty older sibling. This simpering decision to keep secrets is offensive, and, perhaps, a sign of just how quick we are now to make the old fundamentalist hymn "Trust and Obey" the new national anthem.

Shame on you, Yale! At a minimum why not let those of us who sweat blood to pay the ungodly cost of an education know what we have paid for. And why not set a better example for this year's graduates? All this hush-hush is unbecoming.