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Friday Roundup

Getting an edge.  Athletes are notorious for superstitions and performing certain rites.  Basketball players will bounce a ball the same number of times before a free throw.  University of Georgia field goal kicker Blair Walsh eats a miniature box of Raisin Bran in the locker room before every game.  My favorite was former Indians first baseman Mike Hargrove, whose elaborate ritual of stepping out of the box after each pitch, tapping his cleats, tugging at his uniform, fixing his cap, and so forth, led him to earn the moniker "the Human Rain Delay."  Baseball stathead Bill James had the best comment on this, noting in one of his annual reviews that Hargrove's routine was proof that the players had gotten softer; "thirty years ago pitchers would have used him for target practice."

But belief in appeasing the gods of fate is not limited to athletes, it turns out; according to this New York Times article (h/t to Legal Blogwatch), lawyers can be every bit as superstitious.  Some confine themselves to wearing a certain item of clothing, like Bernie Madoff's lawyer, who "always wears a certain kind of Hebrew University tie during his opening statement."  Others perform more demanding rituals:

For three straight days while awaiting a verdict in the recent terrorism trial of his client Ahmed Khalfan Ghailani, his lawyer, Peter Quijano, ordered a cheddar burger and bloody mary from the same waitress in the same booth at the Whiskey Tavern on Baxter Street.

Mr. Quijano, as he did in that case, also tries to insert the name of his Scottish terrier, Watson, into summations.

And if you're homeless, you'll want to target Gerald L. Shargel, who's represented various mob figures and won't pass up a beggar while he's in trial, typically giving each a $20 bill.

Trial tip of the day.  You've had easier trials, to say the least.  Your client Gerald is accused of the drive-by shooting of four people.  You've done everything you can preparing for trial, carefully reviewing all the reports and statements, outlining your cross-exam of the key state's witnesses, mapping out the voir dire questions you want to ask in your effort to indoctrinate the jury.  You've even spent some time with Gerald, explaining that it might be better if he didn't show up at trial wearing the baggy pants with his underwear showing, or that he might want to dispense with a t-shirt like the one at right in favor of something with long sleeves so as to hide the tattoo of Satan on his arm.  You're racking your brain, trying to think of something, anything else you can do.

Well, you might take Gerald to Lenscrafters.  According to this story (h/t to Overlawyered) in the New York Daily News, "nerding" up the defendant by having him wear glasses at trial is the Latest Big Thing:

"If a jury thinks the defendant looks incapable of a brutal crime, then it's certainly an advantage for the defense," one prosecutor said. "The glasses create a kind of unspoken nerd defense."

The last accused killer to pull off the four-eyed legal gambit was Thomas Cordero, a housekeeper hired to work in the buff.  A Bronx jury acquitted him last month of the stabbing death of John Conley despite overwhelming evidence.

Cordero sported bifocals throughout his trial, but ditched them the moment he was free.

Funny how an acquittal will improve your vision.  It's a miracle!

Open palms.  Another election season has come and gone, and that includes judicial elections.  One of the common pleas judges running for re-election here was under federal indictment at the time.  She lost, but by less than 6% of the total vote, which revived the pointless discussion of merit selection of judges.

I say "pointless" because the discussion has been going on ever since I became a lawyer, and we're no closer to that point than we were then.  Despite the fact that there's virtually no way for the average voter to make an informed, intelligent choice about which judge to vote for, the voters have indicated no desire to relinquish their right to make that choice. 

And when judges run, they need money, and when they need money, they look for contributors, and that means me and other lawyers, especially those who take court-appointed cases.  The distinction between this and bribery is often quite blurred.  The 34 judges here rotate their time in the arraignment room, but it's not unknown for judges running for re-election to jockey for an extra couple of weeks there.  Why?  Because it's the arraignment judge who assigns lawyers to cases.  Sometimes the line isn't blurry at all.  I remember about twenty years ago getting a call from a bailiff whose judge was running for re-election telling me that if I came over with a check for $50 that day, I could get an assignment.  Everybody else in my office got the same call.  He lost.

Well, New York apparently has taken a second look at this arrangement, and has announced a new rule requiring a judge to recuse himself from any case in which a lawyer has contributed $2,500 or more to the judge's campaign.  Scott Greenfield takes a look at this and points out that some have come up with an unforeseen angle to it: 

If I'm in New York state court, and dislike the judge my case has been assigned to, can I get a new judge for the mere cost of $2,500? If there's a twelve-judge division, can a $27,500 investment ensure that I get the one judge I'd prefer my case to be assigned to?

Forget $27,500.  "Mere" cost of $2,500?  Sorry, I'll take my chances.

Open discovery.  On Wednesday, I discussed the possibility of the Supreme Court accepting jurisdiction in State v. Biro, where the trial court had excluded the defense efforts to establish one of the state witnesses as an expert, because the defense hadn't submitted an expert witness report.  The 8th upheld this, and I expressed the view that the Supremes might want to take a look at this because the new rules of discovery expressly require parties to exchange expert witness reports.

There's some other problems with the new open discovery, especially the growing use of the "counsel only" designation.  The rule permits prosecutors to mark documents in this fashion, which prevents the attorney from giving them to the client (or anyone else, for that matter, although you can read the document to your client).  The rule expresses no standard on how that decision is to be made, with the result that some prosecutors will use it on everything, and some won't use it at all.  It's doubtful that's going to be addressed by case law; the rule will probably require amendment on that point.

But prosecutors do seem to be taking seriously their obligation to turn over material.  I'm presently handling a felonious assault case, and received an email that the discovery had been posted on the prosecutor's website.  I went to retrieve it, and found one document marked "Defendant's statement."  The prosecutor certainly wasn't going to give me room to claim that I was unaware of what my client had said; you can read the entire statement here.


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