Defense Articles

INTRODUCTION

In Florida v. Nixon, the United States Supreme Court unanimously decided that the fact that an attorney conceded a client’s guilt in the first phase of a capital case without the client’s express consent is not sufficient to sustain a claim of ineffective assistance of counsel.1 In reaching this decision, the Court applied the Strickland test,2 which determines retrospectively whether a lawyer’s representation was so ineffective as to declare the trial unfair, thereby compelling a new trial.3 The Court never answered the question of the appropriateness of the lawyer’s decision to concede guilt without the client’s consent. Rather, the Court’s holding merely explained that the lawyer’s behavior was not sufficient to grant the client a new trial.4 Therefore, when a court holds that a lawyer’s representation did not fall to the level of constitutional ineffectiveness that entitles a client to a new trial, it provides little meaningful assessment of the lawyer’s representation, which may still subject the attorney to sanctions. In the absence of guidance from the courts, a lawyer faced with the decision of whether to concede an unresponsive client’s guilt in a capital case must look to the Model Rules of Professional Conduct (”Model Rules”) to ensure that his behavior is appropriate.
While the Model Rules are designed to ensure that the lawyer provides appropriate and diligent representation in the client’s best interest, the Strickland standard is designed to afford relief only when the representation provided was so ineffective as to make the trial unfair.5 Therefore, the Model Rules set a stricter standard for thelawyer’s representation than the Strickland test, as lawyer behavior that does not violate the Strickland test may still be unethical and a violation of the Model Rules. It would appear that a stricter standard would be more likely to prohibit a lawyer from proceeding with a course of action so appalling as conceding a client’s guilt without the client’s consent. This is not the case.

This Note will argue that the Model Rules not only permit the concession strategy, but require it. Part I describes the Strickland test. Part II then discusses the facts, history, and holding of the Nixon case. Finally, Part III examines the applicable Model Rules and explains why they necessitate the counter-intuitive result of requiring a lawyer’s concession of guilt without the client’s consent.

I. THE STRICKLAND TEST

In 1932, the Court decided Powell v. Alabama, in which it interpreted the Due Process Clause of the Fourteenth Amendment to require that the assistance of counsel guaranteed by the Sixth Amendment be effective.6 In 1984, the Court decided Strickland v. Washington, in which it developed a two-prong test to determine whether the assistance a lawyer provided to a criminal defendant was constitutionally ineffective.7 In an opinion by Justice O’Connor, the Court emphasized that the effectiveness of a representation is measured by an “objective standard of reasonableness.”8 To fall below this standard, a lawyer’s errors must be “so serious as to deprive the defendant of a fair trial.”9

The Strickland test requires the defendant to show first that his counsel’s performance was deficient.10 Justice O’Connor’s opinion in Strickland requires judges to be “highly deferential” to the lawyer and creates a strong presumption that the lawyer’s actions or inactions were the result of “strategic choices.”11 Failure to overcome that strong presumption results in denial of relief to the defendant.

Strickland next requires the defendant to prove that the deficient representation “prejudiced the defense.”12 In order to prove prejudice, a defendant must show that “there is a reasonable possibility that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”13 Many argue that, in practice, the only way a convicted defendant can satisfy this requirement is by proving his innocence.14 If this is true, then the Strickland decision created different standards of effective assistance of counsel depending on the strength of a defendant’s case-effective assistance of counsel is required only for those defendants able to prove their innocence, while the mere presence of counsel is all that is required for those unable to do so.

This contradicts the Court’s holding in Powell that ineffective assistance of counsel violates the Due Process Clause of the Fourteenth Amendment.15 The Strickland decision disregards the requirement of effectiveness described in Powell and instead establishes that the Constitution permits assistance of counsel to be ineffective as long as the defendant is unable to prove that the result would have been different if the assistance of counsel were effective.16 The Strickland decision is also inconsistent with the structure of the criminal justice system in that it places the burden on the defendant to show innocence when theoretically the burden should be placed on the government to prove that the defendant is guilty beyond a reasonable doubt.17 Despite its problems, the Strickland test has survived, and was applied by the Supreme Court in Florida v. Nixon.18

KYOTO, July 12 Kyodo

The Kyoto District Court ruled Thursday that police acted illegally when they blocked a lawyer’s interview with a suspect in a police holding cell in Osaka Prefecture.

Presiding Judge Satoshi Mizukami ordered the Osaka prefectural government to pay 100,000 yen in compensation to the lawyer, Yoshiya Wakamatsu. The judge said the police cannot interfere with a lawyer’s interviewing a suspect, once the interview has begun.

But the court failed to hold the state responsible in the case, which Wakamatsu also demanded in his suit.
According to the ruling, a policeman interfered while Wakamatsu was interviewing a male suspect arrested for assault. The incident took place in a detention cell at the Asahi Police Station of the Osaka prefectural police in July 1998.

The policeman grabbed Wakamatsu by the arm and forced him out of the room, saying a public prosecutor had not authorized the interview.

Wakamatsu, who belongs to the Kyoto Bar Association, claimed interviewing suspects is central to criminal defense and using violence to block such interviews violates the Constitution.

The Osaka prefectural government contended the police stopped the interview to make sure it was authorized by the prosecutor and, they allowed it to resume afterward.

Toshio Shigetoshi, a senior officer of the prefectural police’s administration department, said it is regrettable their claims were rejected in the ruling. Shigetoshi said the prefectural government will decide whether to appeal.

A defense attorney Thursday asked a district judge to hold the 4th Judicial District Attorney’s Office in contempt of court for failing to engage in court-ordered plea bargaining in a first- degree murder case.

Rick Levinson, who is representing Robert A. Rodriquez on first- degree murder charges, asked 4th Judicial District Judge Ronald Crowder to force the district attorney’s office back to the negotiating table.

Doug Miles, chief deputy district attorney, told Crowder his office made a plea offer, but prosecutors don’t intend to make another one and they are disputing Crowder’s authority to order them into mediation.
Crowder said he will rule on the motion by Monday. His decision could challenge prosecutors’ discretion in offering plea bargains.

The 4th Judicial District’s criminal mediation program, one of the most active in the state, is funded in part through a state grant because it’s been so successful in resolving cases without lengthy and expensive criminal trials.

Levinson’s request came just before Rodriquez’s preliminary hearing was set to begin.

Police say Rodriquez, 20, was taking part in a robbery when a co- defendant shot John Henry Smith, 19, in the chest during an Oct. 22 drug deal gone bad in Widefield.

Fort Carson soldier Anthony Marquez, 23, who is accused of firing the shot that killed Smith, has been ordered to stand trial on first- degree murder charges. A third suspect, Pedro Zayas, 17, has been charged as an adult with firstdegree murder.
El Paso County sheriff’s detectives allege all three were armed and planned to rob Smith.

In his motion, Levinson said the district attorney’s office has not negotiated in good faith. He alleges a deputy district attorney was sent to the mediation table without any authority to bargain, only to ink the deal on the offer that was made.

Miles said the deputy prosecutor had the authority to negotiate and blamed Levinson for the breakdown in talks, saying the defense attorney canceled the last meeting.

Colorado law states a district attorney “may” negotiate, but the ultimate decision is up to them, he said.

“The criminal mediation process is voluntary,” Miles said. “Our position is that by ordering mediation with a court order, the court is beginning to involve itself into plea negotiations, which is prohibited.”

He also threatened that if deputy district attorneys are cited for contempt of court for not mediating, they will never agree to mediation in criminal cases.

“I’m not the first judge to order mediation,” Crowder said. “Judges routinely order it. So I’m sure this is going to be a test case” for the district.

Crowder delayed the preliminary hearing until Wednesday, after he rules on the mediation issue.

Miles said they would challenge Crowder’s order if he forces them back to the table.

“The danger we see here is that defense attorneys are starting to file contempt citations if they don’t get the offer they want,” Miles said.

Introduction

“Gentlemen, Chicolini here may talk like an idiot, and look like an idiot, but don’t let that fool you. He really is an idiot. I implore you, send him back to his father and brothers who are waiting for him with open arms in the penitentiary. I suggest that we give him ten years in Levenworth or eleven years in Twelveworth.” (1)

How does the government get “Chicolini … ten years in Levenworth or eleven years in Twelveworth?” (2) Conversely, what can or should the defense do to ensure that Chicolini’s new mailing address does not end in “worth”? This article, a potpourri of sentencing cases, highlights those cases, including cases applying waiver, that military justice practitioners should be aware of to successfully represent either the United States government or those service members on the front lines defending the United States. Divided into eleven sub-parts, this article addresses the following areas: pretrial agreement terms affecting sentencing; personnel records; summary courts-martial convictions; aggravation evidence; rehabilitative potential evidence; the unsworn statement; the case in rebuttal; instructions; argument; sentence credit; and sentence rehearings.

Pretrial Agreement Terms Affecting Sentencing–Rule for Courts-Martial (RCM) 705 (3)

Rule for Courts-Martial 705(c) (4) governs the terms and conditions of a pretrial agreement. (5) For sentencing purposes, counsel need to focus on RCM 705(c)(1)(B) which prohibits a term of a pretrial agreement which deprives an accused of “the right to complete sentencing proceedings.” (6) United States v. Libecap, (7) United States v. Edwards, (8) and most recently, United States v. Sunzeri (9) are three cases addressing RCM 705 (c)(1)(B).

In United States v. Libecap (10) the appellant entered into a pretrial agreement in which he agreed to request a bad conduct discharge. (11) On appeal, the appellant argued he was entitled to a sentence rehearing because the term requiring him to request a punitive discharge was both prohibited by RCM 705 and contrary to public policy. (12) The Coast Guard court agreed, finding the term violated RCM 705(c)(1)(B) because “as a practical matter, it deprived the accused of a complete sentencing proceeding.” (13) The court found, in effect, that any effort by the accused to avoid a punitive discharge through the presentation of evidence on sentencing would be negated by his specific request for such a discharge. (14) Applying the same reasoning, the court also found the term was contrary to public policy. (15)

In United States v. Edwards, (16) the Court of Appeals for the Armed Forces (CAAF) confronted the same issue that was before the Libecap (17) court: whether RCM 705 or public policy prohibited a term of a pretrial agreement. After charges were preferred, the appellant’s area defense counsel (ADC) contacted the Air Force Office of Special Investigations (AFOSI) to advise them of his representation of the appellant and to further inform them that all requests to question the appellant should go through him. Despite acknowledging the representation, the AFOSI nonetheless contacted the appellant directly, interrogating him without notifying the ADC. (18) As part of the pretrial agreement, the appellant agreed not to mention the AFOSI interview or any rights violations associated therewith. (19)

On appeal, the appellant argued that the AFOSI-interrogation term of his pretrial agreement violated public policy. (20) The service court disagreed. (21) In affirming the lower court’s decision, the CAAF found the term was neither contrary to public policy nor prohibited by RCM 705. (22) The court focused on whether the term deprived the appellant of a “complete sentencing proceeding”–specifically, whether the term limited the accused’s right to present matters in extenuation, mitigation, or rebuttal. Noting the right to make an unsworn statement is “not unlimited,” the court looked to the text of RCM 1001 (c)(2)(A) which allows an accused, in his unsworn statement, to present matters in extenuation, mitigation, or rebuttal. (23) After examining the rule and the pretrial agreement term at issue, the court found that the alleged unconstitutional interrogation, even if unjustified or inexcusable, did not “serve to ‘explain the circumstances’ of the offense [extenuation], tend to ‘lessen the punishment to be adjudged [mitigation],’ or rebut anything presented by the prosecution [rebuttal].” (24) The term, thus, did not deprive the appellant of a complete sentencing proceeding.

The last case in this area is United States v. Sunzeri. (25) In Sunzeri, (26) the appellant, as part of his pretrial agreement, offered the following term (paragraph 18f of the agreement):

That, as consideration for this agreement, the
government and I agree not to call any off
island witnesses for presentencing, either
live or telephonically. Furthermore, substitutes
for off island witness testimony, including
but not limited to, Article 32 testimony,
affidavits, or letters will not be permitted or
considered when formulating an appropriate
sentence in this case. (27)

State, defense team end the week by selecting jurors

The state of California’s criminal prosecution of eight current and former employees of Avant! Corp. for the alleged theft of trade secrets from Cadence Design Systems Inc. entered the trial phase last week.

From a legal standpoint, the case, filed in Santa Clara Superior Court in Santa Clara, Calif., is said to be highly atypical and surprising.

“It’s a very unusual case,” said Peter Toren, a partner specializing in intellectual property protection at New York-based law firm Sidley, Austin, Brown & Wood. “It’s very unusual to have these high-level engineers and executives stand a chance of spending quite a bit of time in state prison.”
In its April 2 annual report and May 15 quarterly report to the Securities and Exchange Commission (SEC), Avant! (nasdaq: AVNT) warned investors that the company could be materially impacted by the loss of any of these valuable employees and specifically said that the impact would be the worst should Gerald C. “Gerry” Hsu, Avant!’s chairman, president and chief executive officer, be prevented from working for Avant!

Hsu, who is among the eight people indicted, is known to keep very close tabs on all aspects of the business, and current and former Avant! employees have said that he is extremely important to Avant!’s operations. The company’s headquarters are in Fremont, Calif., but Hsu runs the business from offices in China and Taiwan. Still, the warnings in the SEC filings are meant to present investors with all of the risks to a company’s business and often cover such worst-case scenarios as a matter of legal protection.
Toren said it’s also very surprising to him that the case is still pending, considering the first alleged theft took place about l0 years ago. “That’s almost unheard of,” he said. “I’m surprised they haven’t settled.”

Toren said he represents other companies in the EDA field, but has no professional relationship with either Avant! or San Jose-based Cadence (nyse: CDN). He has been following the case from the sidelines because, he said, the courts are just beginning to adjudicate trade-secret theft as a crime as opposed to a matter for the civil courts.

“Even the civil litigation over these kinds of intellectual property issues has only occurred in the last 10 or 15 years,” Toren said. “There have been very, very few criminal cases. But the value of this kind of information has just skyrocketed in recent years, so that information becomes very valuable property that can be stolen.”

At press time, the state of California’s criminal case continued as lawyers from the Santa Clara County district attorney’s office and from the various law firms representing the defendants were selecting a jury.

Clayton Parker, the Avant! Corp. head of corporate marketing, who as a lawyer has led the company through several court battles (two class-action securities suits were settled in March with Avant! agreeing to pay $47.5 million), declined to comment further on the criminal case. The Cadence vs. Avant! civil case that is going through the federal court in San Francisco is on hold pending the outcome of the state’s criminal case, to which Cadence is not a party.

Needless to say, Cadence is watching closely. Ray Bingham, company CEO, has said continually that he believes Avant! Officers committed crimes and that the civil courts should award Cadence the nearly $1 billion in damages it seeks. “After years of delay by Avant!, we’re pleased that the district attorney finally will be able to present the people’s case to a jury. This is a major milestone considering that he is up against Avant!’s team of more than 20 lawyers from nine law firms,” said Kevin Kimball, vice president for corporate marketing at Cadence.

Toren said that the size of the Avant! team could reflect simply that each defendant has his own lawyer, but he said this also reflects part of the case’s unusual nature.

“On the Avant! side, they have their life and freedom riding on (the outcome of the criminal trial). And they have made a lot of money in this business, so they can hire whomever they please,” he said. “And that is unusual. It’s sometimes unusual that defendants in a criminal case have the financial ability to hire the best and brightest.”

Avant! Invests $130M Outside the EDA Market

Avant! Corp., Fremont, Calif., may be hedging its bets in next-generation place-and-route technology with significant investments outside the EDA business.

According to the company’s annual report of April 2, Avant! (nasdaq: AVNT) is investing $100 million in a new Cayman Islands-based corporation called Semiconductor Manufacturing International Corp. (SMIC), which the report describes as a development stage company in the process of establishing a semiconductor fabrication facility in China. The investment is stretching from Dec. 31, 2000 to June 15, 2002 in various sized payments for the acquisition of shares in SMIC. The report said Avant! may invest more if SMIC or Avant! see fit to do so.

Charges of covering up U.S. war crimes and conflicts of interest have led to the resignations of key members of the International Criminal Tribunal for Yugoslavia.

As first reported in Insight (see “Just What Is a War Criminal” Aug. 2), on July 8 the International Ethical Alliance, or IEA, submitted legal pleadings to the International Criminal Tribunal for Yugoslavia, or ICTY, calling for evenhanded justice in the prosecution of war crimes. The IEA supported the prosecution of President Slobodan Milosevic, but it also charged the ICTY’s prosecutor, Louise Arbour, with covering up war crimes committed by President Clinton and Secretary of Defense William Cohen. Drawing upon facts first detailed by former president Jimmy Carter in the New York Times relating to the use of cluster bombs and the illegal targeting of civilians, the IEA pointed out that ICTY was receiving substantial contributions, including compensation for members of the panel, directly from the United States and other countries involved in the alleged crime — resulting in a substantial conflict of interest.
Despite the fact that IEA’s filings seemingly were ignored by the conflicted panel, three of the five justices cited by the IEA for conflicts have resigned before the end of their terms, including Arbour. Transmitted by fax and priority air mail, the pleadings included a request for a preliminary hearing by Aug. 10. But IEA received no response until Aug. 25. A cursory note from a deputy registrar sent by ordinary mail said, “Your letter has subsequently not been filed, but has been forwarded to the Office of the Prosecutor.”
The term “Office of the Prosecutor,” of course, referred to Arbour’s own office. The IEA had petitioned the tribunal to disqualify her (as well as four other justices) for “receiving compensation from funds contributed to the Tribunal in whole or in part by NATO countries; and biases in favor of NATO countries.”

Christopher Black, a Canadian lawyer with more than 20 years experience in criminal-defense practice, has investigated the tribunal’s funding. He advised the IEA that the ICTY is not financed solely from the U.N. budget, as required by its authorizing statute.

According to Black, in the last year for which public figures are available (1994-95) the United States provided $700,000 in cash and $2.3 million worth of equipment. In the same year, the court received substantial tax-deductible private financing from such groups as the Open Society Institute (a foundation established by billionaire George Soros), the Rockefeller Foundation and the Central and East European Law Institute (created by the American Bar Association and lawyers close to the United States).

In more recent years, the ICTY’s chief justice, Gabrielle Kirk McDonald (an American) and prosecutor Arbour (a Canadian) both have been engaged in soliciting tax-deductible donations for the tribunal from private sources, Black reports. However, since 1995 the ICTY has published the amounts of private contributions and the names of donors.

In alleging that Arbour was ignoring war crimes by Clinton, IEA’s pleadings included verbatim quotes from an article by Carter in the New York Times May 27, calling “the destruction of civilian life … senseless and brutal” Carter also attacked the use of antipersonnel cluster bombs that caused damage to hospitals, offices and residences of ambassadors.

The IEA’s unfiled pleadings charged that the acts described by Carter were being ignored intentionally by Arbour even though they indisputably were violations of U.N. treaties.

On June 10, shortly after the Carter article appeared, more charges of NATO war crimes were published in Spain’s Articulo 20. It was reported that Capt. Adolfo Luis Martin de la Hoz of the Spanish air force had participated in NATO bombings but now denounces them as “one of the biggest savageries of history…. NATO’s repeated bombings of civilian victims and nonmilitary targets were not `errors.’”

According to de la Hoz, NATO chiefs were selecting such targets intentionally and also were using bombs containing uranium. De la Hoz and other Spanish pilots learned that “there was a coded order of the North American military that we should drop antipersonnel bombs over the [civilian] localities of Pristina and Nish.” The Spanish group refused to carry out the order. The Spanish pilots thus provided eyewitness corroboration of Carter’s prior charges. Although the de la Hoz article received much attention abroad, it went unreported in mainstream U.S. media. With the exception of Insight and the New York Times, Carter’s denunciation of the bombings also has been all but ignored by the U.S. media.

Also first reported in Insight was the endorsement of the IEA’s pleadings by Tom Hutson, who has served for 32 years as a State Department official. After spending the last four years as a top career diplomat in Yugoslavia, Hutson protested the bombings of Belgrade and left State. He also corroborates — and denounces — U.S. use of uranium-containing weapons.

How can the Catholic Church justify defending itself against lawsuits brought by those who claim to be the victims of sexual abuse by priests? Should not the church, in all honesty and humility, and in the spirit of penitence, work things out quietly with the plaintiffs’ lawyers, and pay out the cash damages they demand? Isn’t legal resistance–and sometimes vigorous resistance–simply a perpetuation of the pattern of cover-ups that helped create the problem? Has not the church, by choosing to litigate many of the claims against it, reduced itself to the level of those corporate malefactors who use their deep pockets to finance relentless legal defenses against the victims of their environmental crimes, defective products, or financial fraud?
Many critics think that the answers to those questions are obvious. A forceful legal defense by dioceses, archdioceses, and the Holy See itself against claims of legal responsibility, it is argued, is flatly inconsistent with the church’s claims of moral authority. The church is condemned as hypocritical and irresponsible for relying on “technicalities” such as statutes of limitations–which bar claims brought too long after the offending act–to cause claims to be dismissed. A defense lawyer’s attempt to undermine the credibility of the plaintiff is likely to be described as a “scorched earth” tactic or, even worse, blaming the victim. Even the mere attempt to negotiate the amount of a cash settlement to a level lower than that demanded by the plaintiff may be thought of as a nasty, lawyerly trick reflecting the church’s basic unwillingness to accept its responsibilities. The church’s insistence on its day in court is yet another proof of how the church just doesn’t get it.
To hint, furthermore, that the church’s defensive legal strategies might be appropriate will lead to the charge of complicity in the hierarchy’s denial of the seriousness of the problem, its unwillingness to take decisive action against priestly offenders, and its inability to act aggressively to prevent future problems. Even worse, making such a suggestion lays one open to the charge of insensitivity to the pain of victims.

Nevertheless, the conclusion that the church should not defend itself at law is wrong, or at least dangerously simplistic. The question of the church’s legal responsibility, and how it should participate in the process of determining the nature and extent of its liability, is not an easy one. First of all, legal responsibility must be disentangled from moral responsibility. Although obviously related, they are not co-extensive. The church’s institutional moral responsibility for the creation and perpetuation of this scandal is obvious. The perpetrators, facilitators, and bystanders stand condemned in the eyes not just of the rest of the world, but of the faithful themselves. The integrity of the church, and particularly of the hierarchy, will be measured by its willingness to respond to this profound moral crisis. That response, which must be comprehensive and multileveled, will have to include payment of substantial cash damages, both to compensate the victims for their suffering, and as a tangible act of expiation. Those payments, in a small way, will help restore the moral order of a fractured spiritual world. Acceptance of that moral responsibility, however, does not mean that every church institution must always accept the level of legal responsibility as defined by every plaintiff’s lawyer.

It is important to understand what this means. Each complaint filed by a plaintiff’s lawyer sets out a narrative identifying who was abused, who committed the abuse, when and how the abuse happened, how serious it was, and how a church institution or individuals within the institution were actively or passively complicit in the abuse or negligent because they failed to deal with it. The plaintiff’s lawyer will also put forward a legal theory of why the church institution and its leaders or administrators, and not just the priest who committed the abuse, should be legally liable to the alleged victim, and why the particular level of compensatory or punitive damages sought is justified. In other words, the lawyer representing the victim of sexual abuse will present, as forcefully and persuasively as possible, a definition of the nature and extent of legal responsibility for that abuse.

That definition, however, should not be confused with truth. This is not to suggest that the claims as presented by all plaintiffs’ lawyers are necessarily mendacious. It is to recognize that the factual narrative and legal theories presented by a plaintiff’s lawyer are highly instrumental expressions of advocacy. They are designed to produce a result: the establishment of liability for the defendants and the maximum possible damage awards. They tend to be black and white, unnuanced and overinclusive. They are, almost by definition, biased. Of course, there is nothing inherently wrong with that. In our adversarial legal system, we expect our lawyers to be zealous advocates. In fact, they have an ethical obligation to act that way. But their narratives and theories, as expressions of advocacy, must be evaluated critically by the defendants and, ultimately, resisted when the defendants determine in good faith that the claims are insupportable factually or legally. Even a church has no moral obligation to assume that every legal claim against it constitutes objective truth. Indeed, to the extent that our legal system can produce anything even remotely approaching objective truth, it will come through working out the conflicting views of the facts and the law. That’s what the adversarial process is all about.

By day, John V. Elmore is a successful criminal defense attorney battling injustices in the legal system. By night, he’s a devoted family man. The author of Fighting for Your Life: The African-American Survival Guide, which addresses the issues of Blacks (particularly Black youth) and the American judicial system, experienced a time when he was in need of assistance with his own children. Widowed in 1998, Elmore faced raising three children alone. “When my wife died, I suddenly found myself in a position of needing help. And with God’s blessings, I had family and friends who helped us,” he recalls. “I found out that it’s really hard work to raise a family alone.” Now remarried to third-grade teacher Redahila, Elmore is now the head of a blended family that includes Twilla, 23, Justin, 18, Kristen, 13, and Sonya, 24 (not in photo). A graduate of Mansfield University and Syracuse University College of Law, Elmore has been a defense attorney since 1989 and has law offices in Buffalo and Niagara Falls. His book, meant to deter Black youth from prison, has caused him to be in demand for speaking engagements and radio show appearances. “During the course of my career, African-American people, particularly young people, are ruining their lives because of bad choices, or because of being wrongly accused and not understanding the system,” points out Elmore, who mentors young people and is a recipient of the NAACP Medgar Evers Civil Rights Award. Even though his schedule is hectic, he still makes it a point to be involved in his children’s lives by helping them with their homework, taking family weekend trips and coaching their sports teams. The one thing he stresses is that fathers should allow their children to choose what interests them. Elmore, who ran track in college, found that out when he tried to push youngest daughter Kristen into sports. “Kristen was almost 10 when she told me, “Dad, I’m not into sports. Help me to explore my artistic side.’”
THE REV. MELVIN M. MAXWELL

Minister to Men & Youth, Metropolitan Baptist Church,

Washington, D.C., and father of three

“I know what it is like to not have a father,” says the Rev. Melvin M. Maxwell. In fact, Rev. Maxwell, who oversees the men’s and youth ministry at Metropolitan Baptist Church in Washington, D.C., comes from what he calls “a fractured family.” Born in Brooklyn, he remembers the event that delivered the crushing blow. “My father left home when I was 6 years old,” he recalls. “My mom raised all five boys and one girl by herself.” Yet the experience has only fueled his determination to be a good father to his own three children and to the 50 or so teenagers who flock into the 140-year-old church every Thursday night as part of his regular Bible study group. Rev. Maxwell estimates that about half of the young people who participate in “Thursday Night Teens” lack a positive male role model in their lives. He ’s hoping that his ministry will help fill the void by using practical disciplining tools, such as staged dramas, to make the Bible come alive for his youthful congregation. “We use many vehicles to minister to them so that they are empowered to navigate through the community,” says Rev. Maxwell, noting that group discussion topics range from sexuality to developing life skills. Once, he even brought in a person living with AIDS to address the group. And it’s obvious that Rev. Maxwell takes more than a casual interest in the young people he ministers. “I teach them to drive, go to their events, provide crisis intervention and go to school to talk with instructors,” he says. Today the well-respected church leader has 20 years of experience in the ministry. His youth ministry includes infants to age 19. In addition, he’s also devoted to and proud of his own family, including wife, Cherry, and their three children. Son Maurice, 20, has followed in his father’s footsteps and is active in the ministry. Daughters Mikaela, 16, and Mariah, 14 (not in photo), are regulars in the Thursday night group. So attentive is Rev. Maxwell to his own children–tutoring them in math, coaching them in sports and martial arts–that the people at his church have a nickname for him: “They call me ‘Mr. Mom,’” he laughs.

MICKEY MIDDLETON

Arlington, Texas, tax consultant adopted eight children

It was an unexpected turn of events–a television show, in fact–that would forever change the course of life for Mickey and Karen Middleton. It was a story about eight African-American children, brothers and sisters, who’d been separated and then shuffled through an unrelenting series of foster homes following the death of their mother and the incarceration of their father. It was a story that touched the spiritual and moral fiber of the Middletons, a couple with three children of their own. “I come from a family of 14, and I couldn’t fathom the idea of eight children from one family without parents,” says the proud father. “God put it on our hearts to make them our own. “Middleton, a tax consultant, and his wife, Karen, a teacher and administrator, purchased a bigger house and a minivan large enough to accommodate their newfound family: Robert, 20, Brenda, 19 (neither in photo), Delynn, 18, Matthew, 18, Brandon, 17, Demetria, 16, Jeremie, 16, Charles, 15, Trekedia, 13, Cori, 14, and Kevin, 12. They also had to enlist the support of trusted friends and family to help along the way. “Not everyone believed that we could do this in the beginning,” says Middleton. “But when people began to see the unity of our family and how God was working on our behalf, they understood that this was God’s plan. If you understand that we are all adopted as God’s children, it’s easier to understand the needs of our children,” he adds. “I never doubted that we could do this, but it wasn’t about me. It was about faith in God and a wonderful wife, who is my rock, to make our house a real home for us all.” It is a home, Karen adds, that is made complete by her husband’s inexhaustible devotion to ensuring that their children are afforded every opportunity to achieve their goals. “I don’t want to let a day go by without thanking my husband for being a stand-up father and husband. He spends his money, his time, his strength and his spirit to make sure that we are happy. He is phenomenal to us all. “Now, with their two eldest children out of the nest and two college-bound high school seniors, the Middletons are focused on trying to pay for college. “We cannot afford to pay for college for all 11 children, but we know that God will make a way,” they agree. “Parents are responsible for the input. God takes care of the rest.”

HARLAND Braun, the Century City attorney hired by actor Robert Blake to defend him against charges he murdered his wife, resigned from the case on Oct. 28 after Blake agreed to an on-camera interview with ABC’S Diane Sawyer. Braun, who says he believes Blake is innocent, maintains that setting up the interview was the “straw that broke the camel’s back” in his efforts to keep Blake out of the press. A former prosecutor who has been a criminal defense attorney for the bulk of his career, Braun is known for his openness with the media. He has spoken bluntly about the Blake case since Bonny Lee Bakley’s May 2001 murder Braun, whose past clients include police officers embroiled in the Rodney King and Rampart scandals, said he is already working on new cases in his three-person office.

Question: You resigned from Robert Blake’s defense because you didn’t want him to do an on-camera interview. What difference would the interview have made?

Answer: To tell the story, it would take about a day to a day and a half in court. There’s no way Diane Sawyer is going to put him on for 24 hours and unedited. You’ll have a 15-minute interview that’s done for entertainment. We’re talking about entertainment, not news. So they’ll take the facts out of context and make him look guilty just because that’s better entertainment. I’ve put people on television before. I don’t object to it. But in this case, it wouldn’t make any sense to do it.

Q: It was thought unlikely that the sheriff’s department would allow the interview — and it didn’t — so why resign over something that was unlikely to happen?

A: Scheduling the interview was the straw that broke the camel’s back. I had had ongoing discussions with him on the necessity of waiting until trial. We had been working on this for months. I allowed him to talk to a few people in the press, not on camera, just to satisfy his need to speak out. All of a sudden, I was presented with a fait accompli. I thought I could persuade him not to, but he’s an actor. He has in his mind to have a connection with the public. And it’s important to him that the public out there knows his side of the story. To me, I’m only concerned about 12 people in a jury box.

Q: Why is a media strategy so important?

A: To get a fair trial, ultimately you have to do a lot of press stuff. You have to stay on top of the press and speak for your client and get his side of the story out there. If someone makes an accusation and you don’t give a response, it’s assumed to be true. What’s the point of representing him if you’re not representing him in the court of public opinion that will make or break a jury trial? That would be like not showing up at the first day of trial.

Q: Doesn’t your resignation affect public opinion negatively?

A: I doubt it. In all the interviews, I said I still have faith in his case and innocence. But that was a choice he and his civil lawyer made when they decided to schedule an interview. (His civil attorney is helping pick a new criminal attorney.)

Q: You took some heat at the beginning of this case when you questioned Bakley’s character, days after her death. Why did you do it?

A: If you didn’t understand who Bonny Bakley was, you wouldn’t understand the fact that maybe Robert didn’t kill her. You have to get out who she was. When you do that, you initially look like the bad guy because you’re dealing with a dead woman and you’re calling her a criminal.

Q: Your legal tactics have been described as “outrageous” by many of your colleagues and opponents.

A: People are not used to the truth. Everyone is mealy mouthed. If I think a judge is not doing a good job, I’ll say, “Yeah, he’s got bigcaseitis.” I tell the truth. I’m not running for public office, so I’m not worried about that. I’m not a member of a firm, so I don’t have to worry about what my partners think.

Q: Were you ever part of a firm?

A: Never. I did one year in Washington D.C. in ‘67 and ‘68. Then I entered the DA’s office for five years until ‘73.

Q: Why did you switch to defense?

A: I don’t want to spend my whole life in a bureaucracy. So I went into civil practice, thinking I’d be a civil lawyer. I found criminal to be more interesting. Many cases that are boring from a DA’s point of view are interesting from a defense point of view because there’s a person attached to them. That’s the reason I left. Plus, the money. You top out at the DA’s office. You have to live so your kids can go to college.

Q: What’s your workload?

A: I’m probably handling 20 to 30 cases at a time. Usually about five to six are substantial and the others are smaller. I probably try a half-dozen cases a year. I probably put in about 70 hours a week.

Q: What was one of your first criminal cases?

A: It was of a mother accused of trying to suffocate a child. That was a very serious and difficult case. Her son had a health condition. She called the police and said, “I think I killed my son” because he went unconscious. The police wrote down, “I tried to kill my son.” It was a mistake, but she was tried for attempted murder. She was acquitted. She later killed herself by drinking Drano because she lost custody of this child. You can see the consequences of the police coming in and misinterpreting what happens. She was acquitted, but she lost her life. About a year ago, her son came in and asked me the story of his mother because he’d never really heard the true story. His mother was always portrayed as this evil person who tried to kill him. I told him the real story.

Last year, former McKesson Corp. CFO Richard Hawkins faced criminal charges after a $20 million accounting error was discovered at HBO & Co., a subsidiary McKesson had acquired in 1999. Together, the charges, including securities fraud and conspiracy, carried a maximum sentence of 25 years in prison. With executives from Tyco, WorldCom, and HealthSouth also on trial, and with public outrage at corporate scandals mounting, Hawkins decided to take a gamble: he waived his right to a jury trial.

“We didn’t have a lot of comfort that a jury would take the time to wade through the accounting rules–particularly in this climate, with so many other executives going to trial at the same time” explains Walter F. Brown Jr., a partner at Orrick, Herrington & Sutcliffe LLP in San Francisco and a co-leader of Hawkins’s defense team. The gamble paid off. The defense convinced the judge that the former CFO had made accounting judgments in good faith, after consulting with outside auditors. Hawkins was found not guilty on all counts, one of the few recent victories for a CFO on trial.

The verdict solidified Brown’s status as a member of a legal elite: the 50 or so white-collar defense attorneys who are regularly tapped to represent top executives of America’s largest companies. They include such stars as John Keker of Keker & Van Nest LLP in San Francisco, attorney for former Enron CFO Andrew Fastow; Reid Weingarten of Steptoe & Johnson LLP in Washington, D.C., who defended former WorldCom CEO Bernard Ebbers and is currently representing former Enron chief accountant Richard Causey; and Charles Stillman of Stillman & Friedman PC in New York, who defended former Tyco finance chief Mark Swartz.

This cream of the white-collar defense bar has been busy the past few years, as regulators and prosecutors have stepped up their pursuit of corporate wrongdoers. Civil and criminal investigations have focused on aggressive financial and accounting tactics, making finance executives inevitable targets of litigation. Companies are quick to distance themselves from accused CFOs, who are often pressured to cooperate with prosecutors or face the possibility of stiff penalties and prison sentences.

In this high-pressure, high-stakes environment, a finance executive needs the best legal help he or she can find–and afford.

The Howling Mob

Many top white-collar defense attorneys got their start on the other side of the aisle, as prosecutors. Many know one another, personally or by reputation; some worked in the same U.S. Attorney’s office. As a result, it’s clubby at the top, with attorneys regularly referring business to one another when schedules fill up or conflicts arise.

Those schedules have been filling rapidly with finance-related cases as the government has cracked down on corporate crime. For instance, Brown says 25 to 35 percent of his work involves finance executives, as defendants in civil or criminal investigations. Weingarten of Steptoe & Johnson says about half of his practice is devoted to defending finance executives, compared with 10 to 20 percent prior to 2001.

The surge in finance-related cases, often involving many millions of dollars of shareholder value, has been accompanied by increased public interest–and anger. “We’re living in this environment where it’s like you’re defending a nobleman in the French Revolution, and the guillotine is outside and the mob is howling,” says Weingarten. Keker agrees: “Since Enron, there’s been a huge amount of hatred directed at CEOs and CFOs.”

Accounting maneuvers that were once praised in the financial press as earnings management are now attacked in the courtroom as fraud. “We’re seeing cases of accounting improprieties that are being prosecuted criminally today that would not have been prosecuted that way 10 years ago” says David Schertler, a founding partner at Washington, D.C.-based Schertler & Onorato LLP. In 2002, Schertler defended WorldCom’s former director of accounting, Buford Yates, against securities-fraud charges. Agreeing to cooperate with investigators, Yates pleaded guilty and received a prison sentence of one year and one day.

It could have been worse for Yates, as prosecutors are seeking tougher plea agreements and longer jail sentences for white-collar defendants. “Suddenly, all people want to do is put chief financial officers in prison” says Charles Stillman, who defended Tyco’s Swartz against fraud and larceny charges. “That’s the game du jour.”

Cram Sessions

To have a shot at winning this game, defense attorneys have to digest complicated financial matters in a hurry. “Often these cases rise and fall on complex accounting issues and your ability to understand them,” says Brown, who studied the fine points of revenue recognition and the accounting rules regarding reciprocal transfer, or rights of return, for the McKesson case. “There is no substitute for immersing yourself in the GAAP literature and mastering it.” Brown has taken classes designed for lawyers who practice in finance-related areas, and says his firm has brought in representatives from the Big Four accounting firms to conduct seminars.