Tag Archives: Prosecutor

Bishop Street Address — Hawaii Lawyer

Playing the law like a harpsichord since 2004

Eagle-eyed observers have seen the address on the sidebar has been updated.  Yes, the new physical location of the Landsberg Law Office has opened!  It is a soft open: we’ll slowly be making the house a home, but during that time, we’re celebrating!

It’s been a long time looking for just the right office.  We’ve looked at more than one, some we were ready to settle on. But:

This one’s perfect.

Come check it out.  Now taking appointments!

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Choosing the right attorney — Hawaii Lawyer Today’s Story

Hawaii Criminal Defense Lawyer, best criminal lawyer, honolulu, hawaii

The Choice is Yours

“You can’t do that” the Prosecutor told me, but I expect her to say that.  She gets paid to say that.  Exasperated, but not obnoxious.  She simply doesn’t need one more thing to do.  The manila folder on her desk, three inches thick with paper slammed shut as her index finger ran along the edge of the table. “I don’t know what you want me to do, it can’t be done.”

I just need you to let me address the judge.  I don’t care how, but I need to address the judge.

Yeah, you can’t do it Marcus.

Now this second voice I didn’t expect to hear.  Another Defense Attorney had chimed in, to tell me I can’t do something?  He doesn’t get paid for that.

It’s an interesting life being a Defense Attorney.  It’s an interesting camaraderie.  On one hand, we’re in precisely direct competition with each other: every dollar I make is a dollar he doesn’t; every time he drops his price, I lose money across the board.  But on the other hand, no one else can relate to what we do.  It’s very hard to be required to descend into the bowels of humanity for X hours everyday.   Our goal is to find that small slice of innocence we can hold up as an example of redeemable good.  But to find that slice, we wade through a lot of muck.  It is impossible to do it and come back unchanged.

And so Defense Attorneys become some kind of a fraternity.  There’s certain stories I don’t tell on my blog.  There’s things we’re required, by law, to do that I don’t brag about in public society.  There’s one case in particular I’ll probably never explain on this blog.  Surrounded by Defense Attorneys it becomes almost my rank or insignia.  If anyone questions my merits, another attorney who knows will mention the ten word synopsis, and the response will be, “What? You were able to do THAT?” And they’ll be no more questions.

You can’t do it, Marcus, you’re going to have to get it done another way…

I tuned out.  Why was this guy even talking?  On one hand he wasn’t kissing the Prosecutor’s butt in order to curry favor.  That was an option, but I didn’t  believe it.

See Marcus, you can’t do it.  What you need to give us…

Give us? Give US? You’re a Defense attorney!  And I tuned out to the rest of his speech as I tuned in to the problem.  He wasn’t one of us.  He hadn’t joined, in his own mind, the fraternity of the Defense Attorneys.  Don’t get me wrong, he collected money to “defend” people.  He stood next to them as he pled them guilty to crimes they may or may not have committed.  He explained to them their right to plead guilty, the right to throw themselves on the mercy of the court.  The right to pay him a flat fee that includes nothing but showing up.

“Give US.”  See, he was an ex-prosecutor, but something worse.  He still self-identifies as a Prosecutor.  He still self-identifies as someone who wants MORE people in the system, rather than less.  But people pay him for it, maybe I’m wrong.

And I turned to the real Prosecutor, “I just need to get before the judge”.

I stepped outside and made a phone call down to the Beretania Police Station to get my facts straight, then came back inside.  I sat in the front row and waited. Long. I had to wait until the rest of the calendar was done.  When the judge got to the end of his schedule he asked the Prosecutor if there was anything else they could take care of before the break.

As I jumped to my feet, the Prosecutor dismissively allowed me to address the judge. I would have yelled had she not.  The judge heard my request and  said, “Well, Mr. Landsberg, that sounds like a reasonable request to me. Granted”.

120 seconds. Done.

And as I looked around the court, the “Defense Attorney” was not there. Too bad, I wanted him to see me win.  I collected my things, placed them in my bag, and on the way out the door I saw him in the hallway talking to his client with a familiar refrain:

I understand you think you can win this case, You can’t do it. It can’t be done.  You can’t win here…

And I shook my head, And sung to myself:

You can get with this, or you can get with that.
You can get with this, or you can get with that.
You can get with this, or you can get with that.
I think you’ll get with this, for this is where it’s at.



Exciting Changes Coming Soon!

Well, we’ve been building up to this point!

Keep checking back to this webpage for the announcement. but there should be exciting changes coming soon. The webpage for one thing should have a complete overhaul. We’ve already announced our Facebook page (please like us):

http://Facebook.com/Hawaiilawyer

And follow the twitter at @LandsbergLaw where I post

The latest updates in Hawaii Law.
The latest news I receive on roadblocks or potential police infractions.
Anything I’m in the mood to post!

A good way to get started is to follow the twitter and go back and read some of my favorite posts. Already, my research shows I’m the highest Klout ranked lawyer in the State of Hawaii, and that was within about two days of joining Twitter.

Soon I’m launching “Free Legal Advice in 140 Characters” Any question you can ask in 140 characters on twitter, I’ll do my best to answer in the same. We have to pick a day. Or maybe one random day a week? Not sure. Feel free to start with questions now though.

It’s an exciting time at the Landsberg Law office. Recently work has picked up, and that means less time spent on the website. See you in Court!

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Judaism and Defense Lawyers

Judaism and Defense Lawyers

Today I had two people ask me, at completely unrelated times “How do you defend people when you know they are guilty?”  And people don’t realize how 1. Clearly insulting that is, and 2. they have no concept how the system works.  OR I should say, how the system is supposed to work. And they always have one other thing in common:

They’re not Jews.

Bagel timeI’m not saying you have to be a Jew to be a defense attorney, don’t misunderstand.  What I’m saying is that Jews never question the necessity of constant and regular vigilance and questioning of their government.

The Genesis of Justice : 10 Stories of Biblical Injustice That Led to the 10 Commandments and Modern Morality and Law

Bibilical bibliography: Alan M. Dershowitz The Genesis of Justice

One of the most interesting things I learned from this book is the Jewish interpretation of the command “To do and to believe”.  Traditional sources imply that the doing is more important than the believing.  Compare this to the Lutheran “Justification by Faith Alone”.  Jewish custom stresses the performance of the commandments, over the belief in what they signify.  The Lutheran concept stresses the belief in the holy, but discards the necessity to follow the rules.  (Of course, this is a simplistic view of a massive dichotomy, but it’s interesting.)  Put in legal terms, being Jewish demands you follow the letter of the law even if you disagree with it, being Lutheran means you believe the public policy behind the law is more important than the particular elements you are charged to uphold.

It starts to make sense why you have so many Jews who can recite the “Four Questions” from the Haggadah, but self-identify as atheist.

I’ve written previously about the Jewish view of the Torah, (or the Old Testament) being seen as a Covenant, or a contract with God.  Jews see God wrote it, so when they find a loophole within the Covenant, and God means all things, then God put that loophole in the Covenant.  God meant for you to exploit the loopholes in the Torah, because he purposely put those loopholes in there!  How does that relate to Jews as lawyers?  You have a people who have been trained for Six Thousand years to look for loopholes!

Now who do you want as an attorney?

But none of this has to do with why Jews instinctively understand the need for Criminal Defense attorneys.  Attorneys whose sole purpose is to make sure the police, the judge, and the prosecutor are taking no shortcuts.  The reason why is this:

  • Russian Pograms
  • Christian Crusades
  • The Spanish Inquisition
  • And before all of this, The Egyptian killing of the newborn sons. (Exodus 1:22)
And of course, the Holocaust.  All of which were run by governments.  By people wearing that period of time’s military, or police uniform.  The need for healthy suspicion of your government is so ingrained in people raised Jewish, even if not religious, that it is just naturally understood.

Yes. Jews put God on Trial. Watch the movie to see the verdict, and maybe more importantly, the sentence.

So when people ask me, “Marcus, how do you defend someone you know is guilty,” I give a variety of answers:

“Because even if I do my job perfectly, all the government has to do is do their job competently and they will win. I will lose.”

“I want to give the Prosecutor practice, so when she has the big case with the really bad guy, she doesn’t screw up when it’s really important.”

“Because I had a particular client tell me, y’know Marcus, you’re the only person in my life who ever took my side.”

I hate to say “Because when I finally get the innocent client, I don’t want that to be my first case I try for real” because that implies most of my clients are not innocent.  And when we go to trial they often are wholly innocent.

“He’s not guilty unless I lose.” Is probably my favorite when I’m in a good mood.

But underlying the principle is this:  All that is necessary for the triumph of evil is that good men do nothing.   Because in all of the examples I gave, the Jews being killed were surrounded by good men doing nothing.

And no matter the rap, I strongly feel Defense Attorneys are often good men doing something to stop the tyranny of evil.  I have no problem if the State wins, fairly and honestly.

But my role is to make sure they do it,  fairly and honestly.  And the more I do it, the more I realize what a necessary, fundamental role that is.


Responded to comments

Responded to comments

This is a picture of me 100 years ago in North Korea. Yes, NORTH Korea.

So my good friend, and Law Professor in Korea Ben Wagner commented on one of my articles with a very good question.  I figure, let’s discuss it as a main post, rather than bury it in the back of a comment thread.  His original comment is at the bottom of this post, but it can be summed up as (with heavy editing for simplicity):

My understanding is that the prosecutors would have to disclose this stuff motivated by their duty as “officers of the court” … which leads me to wonder how often do such disclosures occur?

And as Ben knows, the perfect law school answer is “It depends”.

Each Prosecutor interprets their duty individually.  Your question is really two-fold, so I’m going to break it in half. 1. How much will Prosecutors disclose information they have. 2. How much will Prosecutors search out relevant information that disproves their case.  Let me take each question in turn.

The answer to #1 is:  Not as often as you think.  My experience is that Prosecutors turn over most of what they know is in their possession.   I can tell you specific stories of a Prosecutor who refused to tell me a certain witness had died (in order to strongarm a plea) who dismissed the case only after I demanded trial (He’s now a defense attorney).  As a matter of course, Prosecutors will insulate themselves from witnesses (using Victim Witness Advocates) so as to protect themselves from having to turn over “new statements” they may make.

About a year ago now, Prosecutors in Honolulu were refusing to turn over the handbook and the specifications for the “Speed Gun” that Police were using to cite people for speeding and excessive speeding.  This went on for over six months or so.  Cases were getting continued or dismissed because Prosecutors refused to turn over this information.  They had a number of different reasons, but it seems if they’re going to introduce an instrument that proves a fact, the instrument better have some science behind it to prove that fact. And a defense attorney has no way to tell that the instrument is anything more reliable than a “Magic 8-ball” without the documentation.  This is just one example of the Prosecutors not turning over important information. see Sat Freedman’s cross-examination in State v. Assaye.

Currently, good luck getting the mainland criminal record of a Prosecution witness without a court order. It seems a clear violation of BRADY v. MARYLAND, 373 U.S. 83 (1963).  But the Office of the Prosecutor reads it differently and they follow it their own way.  The most recent rumor I have heard is that the deputies of the Office of the Prosecuting Attorney in Honolulu has been ordered not to turn over subsequent witness statements that contradict original witness statements, particularly for Abuse-type cases. The rumor goes that a number of local prosecutors quit, rather than follow this rule which they see as unethical.  Again this is a rumor…

Let’s look at sub-question #2: How often will the prosecutors search out information that contradicts their case.  To this I have say, in my experience, the answer is has been an unequivocal “NEVER” with one minor equivocation that I’ll get to in a minute.

My experience is Prosecutors take the reports from the police, any background they can get easily.  Anything their investigators have picked up while trying to serve witnesses or doublecheck locations, and make a choice, conscious or otherwise.  This choice is to believe everything that supports their case, and discard anything that doesn’t support their case as a lie.  And that’s it. Finished.

 

 

His speech on Prosecution should be mandatory reading.

Attorney General Robert H. Jackson got to this question before me in a speech he gave to the Department of Justice in 1940:

One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.

So, as they admittedly can’t investigate even their own cases, they’re not investigating the Defense’s.  It is an interesting debate (and beyond the scope of today’s post) whether the presence of a Defense Attorney provides the Prosecutor with a reason to be a) lazy, b) secretive, or c) overly conviction oriented.  Doesn’t the presence of a Defense Attorney give the Prosecutor the excuse of “well, if it isn’t fair, the attorney will stop it”?  It is the exceptional prosecutor that remembers his duty is to the truth, rather than the complaining witness.  Every time a Prosecutor has called that witness his “client”, or treated the witness as such, lays bare their true thought processes.

Back to the point already!

So here’s the caveat that ties together with the original post.  When do the Prosecutor or his investigator turn over, or find, information that benefits the defense? When it is requested by the Defense Attorney.  That’s how it all comes full circle.  How am I going to get priors in an abuse case? By finding out about them first, and then making a good faith request from the Prosecutor.

When I make certain requests, as defined by the Rules of Evidence and Penal Procedure.  The Prosecutors are required to make a Good Faith Effort to find this information, make a determination if I receive it, and then response to the request, either with the evidence or why I don’t get to receive it.  In Hawaii, this was recently reiterated by HPD v. Town.

Is Strauss-Kahn the best example of this?

Maybe, and here’s why.  There were no Defense Attorneys three weeks ago (or whenever) and the case was filed, pressed, and he was locked up with a bond of 5 million dollars. When he bailed out, he had to remain at home and notify the prosecutors every time he wanted to leave.

What has changed?  Did the Prosecutor’s duties change? Did the fact that she may have lied on Federal Documents change? These are not new facts.  These are facts the Prosecutors had every opportunity to find before the arrest, before the bail requirements that cost Strauss-Kahn $250,000 a month on top of his bond.

What changed is, he started defending his case.  He did not own up to it immediately and ask for leniency.  And now the Prosecutors are realizing what they should have done prior to pressing the charge.  And they still haven’t dropped the charges, they just turned the discovery over.  But it sounds like they’re starting to doubt their own accusations.  And if they have doubt, ethically they should probably drop the case.

Look, do I have any idea what happened in that bedroom, wether it was between two consenting adults, or wether it was a vicious rape by a sadist, drunk with the power of all the money in the world? Absolutely not.  But I don’t think the government even has probable cause anymore. Remember probable cause is:

Information sufficient to warrant a prudent person’s belief that the individual had committed a crime.

And the more information I get, the less likely I think there is probable cause here.  But then, I’ve never been accused of being a prudent person.

Let me leave you with the closing of Jackson’s speech, as true in 1940 as it is today:

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

 


Shove this Jay-Oh-Bee

Here’s why you’re not going to find too many Jewish Prosecutors:

Satan as a Jewish concept is not the classic Beelzebub devil.  He doesn’t collect souls or rule over an underworld.  Not at all.  He plays the role of “prosecutor” in God’s court.  And he doesn’t just collect evidence.  No, no, no.  Not satisfied to collect what is out there,  he creates it.   And he’s a ___ about it:

“Skin for skin!” Satan replied. “A man will give all he has for his own life.  But now stretch out your hand and strike his flesh and bones, and he will surely curse you to your face.”

The LORD said to Satan, “Very well, then, he is in your hands; but you must spare his life.”

So Satan went out from the presence of the LORD and afflicted Job with painful sores from the soles of his feet to the crown of his head.  

Job 2:4-8

And Job was acquitted.

It’s true. It’s true.

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Hawaii Criminal Defense: The Legal Blog

Issues in Hawaii Law.

Below is a collection of Articles I've written about Hawaii law.  Most are about criminal defense, Honolulu trial work, or future legal trends. Courtroom experience is probably the most common.  Others are comments on local or national law.  Hopefully there is something for you to find and enjoy.  If nothing else, you'll see the way I feel about certain issues, and the thought processes I put into legal problems we solve.

And some stories are just too funny NOT to tell.......

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