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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Another person who got on twitter to support my private attorney life is my old friend Big Teeze. You all know Big Teeze from as a veteran of Hawaii Radio, currently on 93.1 Da Pa’ina Radio station Afternoon drive time.“When life throws lemons at you, let Marcus throw them back”. – Danny Chang, Wang Chung’s after an the Honolulu Liquor Commission.
Landsberg Law Office is a proud member of the Waikiki community. And we do what we can to support other members of our community. It is with great pleasure that I was able to help a tiny bar, Wang Chung’s, get the Liquor Commission to reconsider a previous ruling. Before the case came to me, the Liquor Commission handed down a ruling that would have effectively shuttered this local watering hole.
In a very intense hearing, we got the Liquor Commission to reconsider that order, allowing the bar to stay open for all of its patrons.
These are the moments I dreamed of in Law School.
Read it in Danny’s Own words: Wang Chung’s Review of Landsberg Law Office
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Some attorneys win upwards of a Billion dollars in their Tobacco Litigation. I won a hug from a crying woman.
Christi was 26 and adorable. Worked hard for her family of five. They live in the part of town where you can afford to have a house that sleeps five. Plus grandparents. Plus Uncles and Aunts. Plus cousins. Plus cousins’ cousins. And Christi was born in the Philipines. Everyday Christi would catch the bus from her side of the island into Waikiki to work in the tourist industry. Not a great job, but a real one. One that helped support her family.
And Christi was in love.
Christi had a boyfriend in The Philippines. A boyfriend who she loved. A boyfriend who proposed and was now a Fiance. A boyfriend who she had worked with to file paperwork to get a Fiance visa so he could come to Hawaii to get married. Paperwork that was now in Limbo, because Christi had one more thing: a criminal case.
See, on her last trip her grandmother gave her gifts, omiyage, to bring back to the extended family in Hawaii. One gift for uncle, one for mom, one for dad. One for enough other people to add up to ten. Each gift? A pack of Filipino Marlboro cigarettes. Did I say a pack? I meant a carton. Each one wrapped in twice with a nametag attached. Love, Grandma.
Grandma never though this would get Christi stopped at the border coming in.
And Christi told the Customs agent exactly what she had, like seven cartons of cigarettes. And the customs agent told her she’s not allowed to take so many into the U.S. And Christi said okay. And then the customs agent gave her one carton back. The Carton for Uncle, mom was not going to receive her cigarettes. And Christi thought it was over.
And the the Attorney General’s office called. And they told her “you better go get an attorney, because if you don’t we’ll arrest, you, put you in jail, and then you’ll have to put up thousands of dollars to bail out.” So Christi went to three different attorneys, two told her to plead out. But one or two referred her to me. See, the other attorneys didn’t realize why Christi was refusing, under any circumstances, to plead guilty.
Christi, was in love.
Any guilty plea could destroy her Visa application for her boyfriend. Actually, as I remember it, she had to finish her green card first. I came in after this paperwork was already in process. But no one could guarantee that, if Christi pled guilty, even to no jail, a deferral, a minor fine, whatever, that her fiance could still move to America. She got a lot of “ifs”, “maybes” and, “mmmmm”s. Those don’t make a Defendant feel safe. And she could care less about a conviction, the love of her life was the only thing she could think about.
And did I mention, this was a felony. The Attorney General of the State of Hawaii’s stance is that declaring to the customs agent that you have more than one carton of cigarettes to bring into the country, and then surrendering them to the customs agent is punishable by up to five years in jail. According to the Attorney General’s office.
My job was to make the judge think otherwise.
Strategy
So why did the State take such a hard line on this? Remember that billion dollar amount I spoke about above. It turns out, the settlement that Cigarette companies worked out with each individual state included a clause that said the companies ONLY have to pay if the State enforces certain laws. Smelling a vast revenue stream, States could only roll over to pass these laws fast enough. Basically, the cigarette companies dictated the Laws states would pass to protect these cigarette companies against outside “illegal” cigarettes from entering the market.
By paying this money, Marlboro and the rest insured their oligopoly. In every state.
And oh yeah, the Cigarette companies have oversight. They can demand a statistics on which laws were passed, and how many people were prosecuted under these laws. And the state was running in fear, that without any prosecutions, the cigarette companies would choose to not pay the money, embroiling the state in further legal costs. If I’m not mistaken this was already beginning in other states. So everybody who brought five or more cartons in, and surrended them at the customs counter (where my understanding is, they are supposed to) was charged by the State. Everyone.
And so far, everyone had pled guilty, gotten a deferral. Hawaii got their prosecution statistics. And then came Christi. And she brought me.
Our plan was this: avoid trial to preserve the Deferral option as long as possible. And then institute a one-two punch. This is a common technique I use. But it’s sort of the opposite of the jab-haymaker that is the standard approach. I start with the arguments that sound worse and hurt more.
In this case, prosecutorial misconduct, improper motives, fiduciary interest. All the things I could get to show that the State simply should not charge these people. I think we even threw in pre-emption and jurisdiction, as Federal law should govern anything up to and including the customs table. If the judge agrees with all this, it can open an entire can of worms for the Attorney General and these laws at all. Because these laws are locally instituted nationally, it could make national news. And the judge would be saying the State cannot earn the massive amount of money from the settlement agreement.
I don’t believe judges decide solely based on extraneous issues, the way certain attorneys do. But really, how could they not pay attention to it.
I went deep into the the history of the cigarette laws, present evidence of the lobbying. The yearly report of the State committee whose whole job it is to keep track of what happens with these funds. The fact that these funds actually provide the money to pay the salary of this attorney general.
Said another way, if these funds went away, this prosecutor would not have a job. She better prosecute these laws and hope the Cigarette companies don’t freeze the funds.
That was the “one”, then came the “two”. The two was a deminimis motion. A standard motion in drug cases, but not one often used in this context. Basically that she had such a low amount of cigarettes, it wasn’t a big deal. Also the fact that she brought them into the country/state for such a short amount of time. Again, not a big deal.
The one that stupefied the judge is that, on her way out of customs, the customs agent goes “Hey, wait. You get to keep one! Here, take this one!” How could bringing ten cartons be an issue, if ten people could bring in ten cartons. He was a little incredulous.
But this was the safe way out for everybody. The judge could deny my first motion to dismiss as the rantings of a lunatic attorney, but insulate against an appeal by granted the same result, a dismissal, for the safer, cleaner reason of just “it was so minor, nevah mattah. Small kine”.
So of course that’s what happened…
And Christi got her green card. And she got her visa. And she got married.
And her Grandmother sends back cookies as gifts instead!
Before trial the Prosecutor’s supervisor walked into the room. Everyone knows the prosecuting deputy was new. I knew her to be a good attorney, but by simply being in the room the supervisor was going to make the new prosecutor more nervous, I asked the supervisor “What, you come to see me in trial?”
“I came to make sure you don’t try to pull anything.”
I thought we were still joking, “Why, you couldn’t when we went to trial.” Smile, smirk.
“You just got lucky.” Was her honest reply.
It’s never the facts of the case. It’s never the quality of the argument or the work. It’s just “luck”. And they’re the ones with the jailhouse keys. They’re the ones charged to protect you when you’re in danger.
She stayed for about half of her young prosecutor’s case in chief, and then left. Never saying a word, never making a suggestion. Never being helpful at all. Shook the prosecutor up so much, one witness took the time of a 6 person trial.
______________________________________
A dentist once explained to me how to do a root canal. How they take the top of the tooth, go in, get all the “gunk” out, fill it back up with “filler” and then put a cap on top so it looks good as new. I went home and performed my own root canal. It didn’t go so well.
I give a lot of free advice on the phone. A lot. That’s just the way I am. Generally people are thankful and want to hire me. I say a lot of “What I’ll try and do is this…. What we’ll work on together is that….”
Well, one particular seemed relatively easy, and it was referred from a friend, so I gave the girl a discounted rate. But she wanted to sleep on it. Turns out, overnight she called the attorney on the other side and tried to work out an agreement based on what she gleaned from our conversation. When I called her up and asked if I needed to be in court with her, she said she wanted to do it herself “I’m just that kind of girl.”
I’ll never forget that.
Anytime a person calls me and starts with “Don’t worry, I know I’ll win” I get nervous.
This is because the case becomes a “no-win” for me. If they won, they were going to win anyway. If they lose, it is my fault. And often it portrays an attitude that just doesn’t play in front of a judge or jury.
As you predicted, her case didn’t go so well.
I went to the dentist and asked him to fix my root canal. I told him, “I already did half the work, you don’t even have to do as much, I already took the tooth off and got rid of most of the inside”. He didn’t give me half-price, he charged me eight times as much.
She called me back after the hearing and asked if she could hire me. I quoted her eight times the price. There was a fundamental misunderstanding of how the system works.
You may feel like you’re getting a root canal, it may even be sore for a week or more. But we’re trying to stop infection here. You’re allowed to do it yourself, but sometimes, when stakes is high, you might want someone in your corner. Someone who’s been there before.
What kind of girl are you?
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“Oh my God! Are you okay?” The prosecutor asked, with entirely more emotion than should be allowed.
It’s just a punch. I could take it, I was more worried about falling down…
“Falling down, why?” As if the everyone in the jury didn’t see the man walk in on his cane.
Well It’s my leg. Ever since the accident, I have to use this cane and my balance isn’t very good.
“Your balance isn’t very good.” The prosecutor was engaging in the time honored technique of “repeating the last thing the witness said for maximum effect”. I do this now ironically. “So after –”
I also have a brain tumor.
Now the witness wanted to engage in the time honored technique of volunteering information. This robbery had nothing to do with a brain tumor. It was about three Samoan men trying to steal beer at a liquor store at 9:00 in the morning. That’s all. And the neighbor grabs one by the shoulder, he got hit.
See, the liquor store was right next to Palolo Housing. So it’s not the first time they got hit like this. I talked to a cop later who told me he can see it happen, he knows where people line up to stand to grab a six-pack and dig out. Just take off.
Well during this case the man testifying grabbed a Samoan men (not carrying beer by his shoulder) and the Samoan turned around and punched him in the face, the man didn’t fall down. And they ran away.
And while we could have gone with no identification: come on, cross-racial identification after a 15 second conflict, a highly suggestive ID and no other connection to the scene. Not to mention you throw a mango any direction in Palolo and you hit a Samoan (and then run as fast as you possibly can).
My client wanted to be honest. He wanted to testify. He wanted to tell the jury that this guy grabbed him so he pulled away. When the man wouldn’t let go, he slapped the man once. This made the cane wielding man the man let go, but not fall down. My client then ran, he knows what happens when a Samoan man from the housing slaps a haole. Plus, he had to find somewhere else to buy milk and eggs, so his girlfriend’s mom could make pancakes for the family.
It never would have been an issue except they wanted pancakes.
Well, the jury went out, and they were still deliberating, when I saw something not one of them ever got to see:
The next morning, out in front of the metal detectors/security station on the first floor is the same man who had a cane the day before. No cane, yelling, carrying on, screaming about money the prosecutors owe him, and jumping around in front of the security officers. Security officers who kept telling him to leave and not harass them.
He had a bum leg and a brain tumor in front of the jury. Could hardly walk to the witness stand. Outside the courtroom he was fit as a fiddle.
And the jury never got to see this behavior, all they were allowed to see was the tragic story presented on the witness stand.
But they saw right through it, and my defendant walked out the front door. I sometimes wonder if he ever got his short stack.
He was a nice elderly Japanese gentleman. I asked him his job and he said he was a pastor, but he also a photographer and a fix-it man. What I’ve learned since is that the more jobs your Defendant tells you he has, the fewer jobs he depends on. He wore a frayed brown coat, over a mismatched check shirt. Corduroy jeans and a corduroy tie. I was surprised that much was matching.
He was accused of a hit and run. The elements of a hit and run are, basically, there’s an accident, there’s damage to something and one party drives away without giving information. He drove away from the scene, but he was adamant about one thing: he was chased away.
You’re not required to be abused, bullied, or harassed. You don’t have to give your information to someone who wishes to do you harm. He was scared, and he wanted to tell the judge how scared he was, but he never got the chance.
My questioning of the complaining witness went like this:
Now, you had the option to tell the prosecutor what the damage you your car was, right?
I told him, there were scratches to the bumper.
And your car wasn’t brand new?
No.
And you had the option to get your bumper fixed.
Yeah.
And you told the prosecutor how much your bumper was worth.
No.
‘Cause, c’mon, there was really no damage.
Not really.
I sat down so hard the chair broke. BROKE. She just admitted there was no damage. With no damage the judge had to dismiss the case. Of course. That meant my sweet defendant couldn’t testify.
He wanted to testify, he just wanted anyone to hear his story. No one would listen. The other party wouldn’t listen (they were screaming). The police wouldn’t listen (they were arresting him). And now his attorney wouldn’t listen (I was winning, get out of the way!).
SO the judge made the right decision and dismissed the case. Many people don’t understand how serious these cases are. While the jail penalty is low, between insurance and restitution, we’re talking penalties upwards of $10,000 or more dollars. Potentially the value of a car and a halfway verdict for use in civil court. His case was dismissed.
And my poor defendant followed me around the courthouse all day, just trying to find someone to listen to his story.
While I was walking around the courthouse, just trying to find someone to listen to how I won!
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.
I’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.
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:
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.
Now that the last post is out of my system, let me talk seriously about this case. And if you are deeply invested in Casey Anthony’s guilt, then know my heart goes out to the whole family in this and Casey will have to live with whatever she did for the rest of her life. She will never be afforded a normal life, and will be marked as “guilty” no matter what the jury says.
Also, like the movie Final Destination, Justice comes back to get its own: see OJ Simpson.
And please don’t read the rest of this post.
[youtube=http://www.youtube.com/watch?v=su2PuprjMCY]
(embedding is disabled but it’s an interesting take, minus the lack of modesty in victory.)
Casey Anthony is not who you should be mad at.
Jose Baez is not who you should be mad at.
You should be mad at the talking heads who are right now congratulating themselves for knowing better than the jury. The same people who told us she would be found guilty, now tell us she should have been found guilty and anyone else is wrong. The same people who said Jose Baez is a horrible attorney and will lose the case, are now saying Jose Baez is a horrible attorney and won by accident.
Jose Baez didn’t make them predict the entire case wrongly last Friday. This was as much of a “dry bones” case before the verdict was read. So who is the person who knows less about the legal system now?
So Is Jose Baez as bad an attorney as they say? Is he the next Johnnie Cochran?
Slow down. These are two of the questions I’ve received since this case started and the answer is, slow down. Baez gets his moment of the sun. No matter how horrible is, he won. And to the victor go the spoils. He gets to celebrate. He gets to charge more for his next few cases. That’s the rule. But you’re only as good as your last case.
This week, he’s the best in the world. And he has the perfect rebuttal to anyone who criticizes him. ”You go win that case.”
Baez reportedly acts like he doesn’t know basic courtroom rules. Acting amateur is an old, useful scheme many people use. One of my most recent cases I purposely misspoke a rule of law during Voir Dire. I knew the judge would catch it, correct me in front of the jury, and that the rule would mean more coming from him. This is the one rule I planned to argue in closing. And I did. And I told the jury “You remember at the beginning, I said _______, the judge interupted, he said ‘No, __opposite___’, and I said ‘Really?’ and he said ‘yes __opposite__ is the rule.’ It was that important. The judge corrected me and told you TWICE what the rule is. Now, FOLLOW IT.” My client walked out the front door because the jury followed the law.
I would also point out Baez completely ignored the chloroform evidence in his closing. I would have done that too. I think that’s a smart decision even though I think many people would demand he address it. I can’t be mad at that.
More people to be mad at:
You should be mad at the attention in the case. Publicity comes with good attorneys who come with investigators who come with jury consultants who come with medical examiners. All wanting to get one sound bite on camera to make a career.
Be mad at the Medical Examiner for making an absolute rookie mistake and being a completely unbelievable witness. By testifying to something that was so clearly untrue (that she was able to determine it was a murder) she undermined the whole prosecution’s case. If you don’t know how someone died, you can’t say it was a murder. Period.
Be mad at whoever suggested “Beautiful life” is somehow a tribute to Casey’s life after Caylee died. It just doesn’t ring true and jeopardizes every other argument. Getting a tattoo as a tribute to your dead daughter’s lost “beautiful life” sounds way more realistic.
Be mad at the American system. We let some of the guilty go free in order to assure the innocent go free. We insure the rights of the guiltiest among us so that the innocent among us get that same assurance of procedural fairness. Decide what number of innocent people are allowed to be in jail, or put to death, in exchange for what number of guilty people are allowed to go free. The traditional standard is 10 guilty must go free to save one innocent person.
Now decide when that innocent person is your brother, your mother, your wife?
Be mad at whoever sold you that a jury trial is about “Justice for Caylee” If you feel “Justice for Caylee” is more important than assurance of fairness for the defendant, I’m afraid we can’t be friends. Not because i’m against justice for the victim. (The first client I signed since going private was actually a victim’s rights client.) But because you’re a horrible person if you believe convicting someone, anyone is somehow justice if that person isn’t proven guilty under the rules you’ve agreed to in advance.
Be mad at anyone who gave this case coverage. The largest jury panel I ever had was in excess of 150 people. The first question the judge asked was “Who has heard of this case” Over half the room raised their hands. So everyone who has read the paper, reads the news on the internet, watches television news or updates, or listens to morning radio, all these people were instantly dismissed! Understand, in a high publicity case, anyone swayed by the publicity must be dismissed. It is an entirely different jury pool if you disqualify anyone passingly interested in daily, local news.
If this case was not championed by the lawyer TV circuit, it would have been a much different case.
The final takeaway for this is simple: What makes a good episode of Nancy Grace, doesn’t make a good murder case. For some reason prosecutors seem to buckle under media pressure when Defense attorneys thrive on it (see: Marcia Clark/Christopher Darden). Every time I’ve seen an attorney act as if his case was a slam dunk, he’s lost. Run every race like you’re ten feet behind.
It’s a tragedy what happened to Caylee. But that doesn’t mean we should compromise our underlying principles to convict her mother. One tragedy isn’t fixed by inflicting another. Compromising traditional, long-standing values is always a tragedy. An eye for an eye leaves the whole world blind.
Insure the process and perfect the means. As soon as the ends are more important that the means, the whole system is lost.
No matter what the system is we’re talking about.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Now, here’s where my memory plays tricks on me. I know for a fact what I remember the word being. But I also know for a fact it absolutely was not that word, even though I cannot imagine what the word actually was. When I try to remember what it actually was, this is the word I remember, but logically looking back it couldn’t have been this remembered word. So with that forewarning, let me tell you my memory tells me the word she had been saying was:
“Sh__faced!”
So with my best Perry Mason finger-point I ask the witness:
And the witness, friendly and having seen all of this, leans forward in her witness chair, and entirely too loud into the microphone answers :
Leave a comment“OH YEAH!”
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