Jay Milano Attorney and Counselor at Law

The Policeman Is Your Friend*, Homicide Case Dismissed

This is not the accident scene.

[teaser]* Unless he thinks you are guilty[/teaser]

“I am not a criminal-so what am I doing sitting here waiting for a criminal defense lawyer- Jay Milano?”

There sat the client and his wife on a bench outside of a courtroom.

They were young, good looking, hard working and had been trouble free. They were about to start their family. They had just received the news that she was pregnant. They looked much like they would have looked sitting and waiting for her OB/GYN- except they were surrounded by the usual suspects that haunt criminal courts.

They were frightened. They were also confused.

There had been an accident. A man had died. There had been two independent witnesses. Both had a clear view. Both said it was not the client’s fault.

Nevertheless, there they sat. He had been indicted for Vehicular Homicide. Vehicular Homicide means you killed a man with your car. It was your fault and the result of you breaking the law. The allegation alone changes your life.

This client was driving down a straight road in Lorain County. It was a sunny Saturday afternoon. No drinking, no drugs. He was traveling within the speed limit, following a car but not tailgating. Traffic was average.

The road was a bit confusing because there was a cross road, but it did not pass straight through. It came in on his right and dead-ended. The left turn was a few hundred feet further on the left.

As they came to the road on the right, the car in front of him slowed down. It looked like it was trying to turn left, but had nowhere to go. It moved forward a bit, started to turn left, hesitated and then started to turn again.

Like a video game the scene in front of the client exploded. The turning car was struck head on and started to spin. The client tried to avoid it but was struck and ended up in a ditch.

Everyone seemed all right. The old man in the left turning car did not appear to be injured. As a matter of caution, he was taken to the hospital. The highway patrol came and took pictures and interviewed everyone. They exchanged insurance information. Bad day, but things happen.

The old man died at the hospital.

The client learned of the death when a highway patrol officer came to interview him. The client reported that it all happened very quickly. It appeared the car in front tried to turn, hesitated and was struck by an oncoming car. It began to spin. The client tried to avoid the car as it spun, but he hit it and went off the road. “Weren’t there witnesses?” he asked. He felt terrible, but it was not his fault.

That was it, he thought. It was over.

In a few days he got a letter from a lawyer for the deceased’s family telling him to notify his insurance company, that he had caused the death. The insurance company informed him that he might be charged in the accident. They told him they would defend him in a civil case, but not a criminal case.  They sent him the complete police report.

It was not over.

At this point, like most people, he thought that this would resolve itself. The police report had statements from two witnesses. They saw the accident exactly as he had seen it. The car tried to turn and was struck head on. The criminal part, he thought, would never happen. His insurance company would take care of the rest.

But he called and made an appointment. He thought it prudent to talk to a criminal defense lawyer since he was told he might be charged.

He came in with his wife. I reviewed the reports, told him that I would contact the Prosecutor’s Office and the Highway Patrol-just to make sure. I did. I got no answers except that the case was under investigation and they would let us know.

Three months passed, along with phone calls from the client and unanswered inquiries. Then he was indicted. He was charged with Vehicular Homicide. He was charged with causing the man’s death. It made no sense.

So there they were on a bench, in the hallway of the courthouse- him scared, her scared and pregnant.

Cases start with the Prosecutor and Defense Lawyer meeting to exchange information. I went, assuming that a close look at the witness statements would cause the Prosecutor to come to his senses.

The Prosecutor gave me the police reports to look over. There was a problem. There were pages missing. The only pages missing were the independent witness statements. The exact statements that exonerated the client were not there. They had not been presented to the grand jury that charged the client with a crime. They were not given to the Prosecutor.

There was no logical explanation that I could see. I believe to this day that the Policeman had taken sides. It is my opinion that someone deliberately withheld the witness statements.

Right or wrong or a coincidence, the only two independent witnesses were gone. If the client had not gotten the original police reports, then chances are no one would ever have known about them. They would have ceased to exist.

I pointed out to the Prosecutor that there were missing pages- very important pages. I showed them to him.  He shrugged it off and said he would look into it.  We were postponed a month. The clients were disappointed.

A month layer, same hallway, same bench, same scared client and his wife, her a little more pregnant.

The Prosecutor had no explanation. He had taken no action. He said that he and his colleagues would “round table” this case and likely dismiss it.

Hope. They were going to be reasonable. Despair, another delay. Being charged with a crime weighs more on you every day. You wake up in the middle of the night, and stay awake, thinking about nothing else.

A month later, same hallway, same bench, same scared client and his wife, her a little more pregnant.

This time we had a new Prosecutor.  The Highway patrolman was also there.  He sat down to explain to us how he knew what happened. He went through his version of the events and never mentioned the witnesses. The ones who said he was wrong. The ones who said the client was innocent. He walked out, cock sure that since he was a policemen, all would believe him.

The new prosecutor said she was concerned about the statements, but she had to look into it. Amazingly, she called to tell me that they were going to have an expert from the highway patrol examine the accident to see who was right. The argument became heated. She did not need an expert, that there were two eyewitnesses. The statements had been concealed. I did not dissuade her.

Two dynamics of criminal justice were at work here. First, once a charge is filed, it carries weight. It is very difficult to undo. A victim has been named. His family has rights and a very loud voice in court. To dismiss the case dishonors his death. Second, police and prosecutors work together every day. Prosecutors will do everything reasonably (and sometimes unreasonably) possible to protect their policemen.

A month later, same hallway, same bench, same scared client and his wife, her a little more pregnant.

This time a young highway patrolman came in and declared,  without any hesitation, that he knew who had caused the accident. It was the client.  He could tell by marks on the road that the witnesses were wrong. He was sure. It was ashtonishing that he dismissed the witnesses with such clarity. He had no real evidence. This young highway patrolman fully expected me to say “Yes, sir” and go out and tell the client that he and the witnesses were had met a greater force. He must surrender. He had better pled guilty.

Put it in writing, I said. Let us have an accident expert test your theory.

It is my opinion that this young highway patrolman who called himself an expert was willing to stretch his expertise (read the truth) to accommodate his friend (who, by this point, knew he had a major problem with hiding evidence).

Now we were set for Trial two months out. The wife would be 7 months pregnant by then.

The Judge ordered the prosecutors to produce the young highway patrolman’s report. They never did. We let the Judge know two weeks before the trial that the State had not done what he told them to do.

Two days later, I got a phone call from the Prosecutor. The young highway patrolman would not put his opinion in writing. They would dismiss the case.

Three days later, as if another insult was necessary, we went back to Court. The clients sitting on the bench as they had done 7 months before, she very pregnant, both of them very relieved.

The case was dismissed. It had been a year since it started.

My opinion: the original highway patrolmen took sides. He decided that it was the client’s fault and then, rather than investigating, just built a case. He did so even to the point of hiding evidence. His young buddy covered his ass as best he could, but in the end would not put himself on the line by joining in the lie.

People take criminal justice for granted. They assume the police are out to help them. If they just explain what happened, it will all be fine. Regularly people come to us in serious trouble, after having trusted their instincts or the policemen or an inexperienced or ineffective lawyer to “Straighten it out.”

Right now we represent a professional woman who thought she could explain away sloppy paperwork. She got charged with 6 felonies. A friend walked into our house, unannounced, a few weeks ago, desperate for information because her son’s lawyer would not talk to her. Had he done his job, the young man may never have been charged.

Criminal justice is hard. And it is counter-intuitive. It is not something you can do yourself.


PS The baby will soon be born. I will keep you apprised.

If anything comes up, for you or someone close to you, anything for which you might need a lawyer, just call. If it is not a problem, I’ll tell you. I am not in the business of scaring people. If there is a real problem, we will put it behind you.

How to Win Cases – Part I

[teaser]Jay Milano, criminal defense, malpractice, and personal injury lawyer and law professor in Cleveland, Ohio teaches how to win cases.[/teaser]

Unless there is a vigorous objection, this is the first of a series of columns on trial practice. They will all be by me. In fact, we are already looking for authors qualified on the topic (read, willing to write).

Jimmy Buffet introduces one of his songs as a “love song from a different point of view.” This will be trial tactics from a different point of view, an attempt to cover ground not well trod. (The fact that the song is entitled “Why Don’t We Get Drunk and Screw” should not be held against the County Bar).

Any analysis should start with a baseline. In this case we should look at the core principals of effective trial work. They are, I believe:

  1. Credibility,
  2. Integrity,
  3. Education,
  4. Control,
  5. Creativity, and
  6. Simplicity.

Before you dismiss this assessment as too basic, stop and think of how many lawyers you know who don’t hit 2 of the 5 on a daily basis.

1. Credibility

Each year I have at least one law student tell me that it is okay to assist the client in manufacturing a story that will help them to win. Too often we see practicing lawyers who follow that creed. We live in a country where “plausible deniability” and “spin” are considered art forms. Try to practice that way and you will kill your clients and kill your practice.

There is nothing, nothing, nothing more important to the success of your practice. The Justice Center and the Federal Building are very small towns. You get caught hedging even once and people will know. One way to think of credibility is as your duty to tomorrow’s client.

Credibility is also bound up with the concept of how you present your claims. We have all seen lawyers who make outrageous demands in an effort to bluster their way to victory. It is a very shortsighted strategy. Stake out the furthest reasonable position and hold it.

2. Integrity

Integrity is close in concept to credibility, but the difference is operative. For this purpose, integrity means the willingness to do the work necessary to complete the task. No one is going to do you any favors, certainly not someone in a more powerful position than you. The only way that you will succeed over time is to do the work on each case. That means digging in and reading the statutes and rules before all else. As an aside, if you want to understand a new concept, look at the jury instructions.

3. Education

We must stop considering ourselves as warriors and start to look at ourselves as teachers. It is the job of the trial lawyer to educate: first ourselves, then our clients, then our opponents, then the judge, and finally the jury. Do not expect anyone to understand your case. Take the time to explain. Pretrials are for educating the judge as to your point of view. Settlement conferences are for educating your opponents. Office meetings are for educating your clients. Educating ourselves is a continuous process.

4. Control

Here comes the first internal contradiction. To be a good trial lawyer, you need to be a teacher. Control is about the wars we fight.

You need to control yourself. First, look at the practice as an intellectual exercise. A lawyer cannot afford the luxury of recreational anger. (I did not make that up, but cannot remember the name of the lawyer from whom I heard it many years ago.) If you are dealing with a jerk of an opponent, play above or below him. Do not engage, as you will lose focus.

You need to control the situation. Form the issues in discussions. Be the person in the courtroom to whom the jury looks for the right answer. Be the person to whom the judge looks for guidance. Do that by being prepared for the questions. Read the rules and statutes and the cases. If there is one common complaint among judges, it is unprepared lawyers. Knowledge is control.

5. Creativity

The finest compliment you can hear is: “We have never done it that way, but it sounds fair, let’s do it.”

Do not copy and here is why. You need to understand why you are doing something before you can learn it. Why am I asking this question? Why do these facts fit my case? Why did the court rule the way it did? What is the logic? We spend too much time calling each other to ask for a copy of a complaint or interrogatories or a motion. You do not need to reinvent each time you undertake a task, but you do need to know what you are trying to do before you blindly follow.

6. Simplicity

In many ways this is the most important principal. What if the way to measure intelligence is to determine at how many levels of abstraction a person can think. Chess players think many moves ahead, contemplating all of the possibilities. Most of us cannot think past lunch. Jurors may be smarter than lawyers, but in the context of a trial, will hold to the most basic and easily understood principals. Do not get lost in the upper tiers of argument.

We have set the baseline. Nowhere to go from here, but up. See you in the next issue.

Law and Fact
The Journal of the Cuyahoga County Bar Association
April 2003

How to Win Cases – Part II

[teaser]Jay Milano, criminal defense, malpractice, and personal injury lawyer and law professor in Cleveland, Ohio teaches how to win cases.[/teaser]

What makes trial exciting is the heat. Cross-examination is the crucible which, when used correctly, will burn away the mistakes and the shadings and the lies, and leave the truth.

David Pomerantz, in the article preceding, treats the subject of expert cross-examination with depth and precision. As is the nature of this series, let’s divide out a single point. In this piece we will look at how to cross-examine a “target witness” (usually an expert) through an “innocent” witness.

Of the five constructs on which this series is premised (Credibility, Integrity,  Education, Control, and Creativity) control applies most directly to cross-examination. We have all heard, and believe to our bones, that control in cross is manifested by the closed-end question. That is absolutely true. (Of course there are times when you have been so effective that you invite an expansive response, either because you know the answer helps rather than hurts, or because you have progressed to a point where the answer makes no difference.)

That concept of control applies, as do almost all strategies of cross-examination, when directly confronting a witness. Isn’t it true doctor…? Isn’t it true officer…? Isn’t it true sir…? This is the form that we have all used.

We want to look at control from a different…and maybe more creative…point of view. Think now about the idea of using one witness to cross-examine another. What if you could control your “target” witness through the testimony of an “innocent”? Here is how you would do it.

Begin with the premise that one method of effective cross is to move from the general to the specific. Again, we are working with an expert or professional witness. Your strategy is to have them agree to general relevant principles first and then move to the specifics of your case. You apply the general constructs to what happened or what they did. Think in terms of the way a shark hunts, circling its prey more closely with each pass, bumping occasionally to check for reaction. You are circling by means of generally accepted ideas. Your bump as cross-examiner is the mildly pointed questions early on to gauge the reaction of the witness to confrontation. The kill occurs if you can show the disparity between the general principles and the specifics of the witness’s testimony.

I will use a criminal case as an example. Generally there will be a detective sitting at the trial table for the entire proceeding. It is his case and he is very experienced. It is unlikely that you will be able to “break” him. It is far more likely that he will break you. He generally testifies last to clean up.

But what if your general questions are asked of a preliminary “innocent” witness? A uniformed policeman is a good example. Early in the case, a uniformed officer will testify. Usually the first on any scene, she provides background information and any evidence which she might have gathered. Under the standard model there will be few if any questions.

However, under this model you want to use the “innocent” to lay the foundation of general principles that will underlie your point. Let’s assume you have a case where no fingerprints were taken. The “innocent” will gladly tell you about how easily prints are taken and how infallible they are and how they solve cases. The target then sits and squirms knowing that eventually he will have to answer for why he did not do what that nice young woman in uniform told the jury was appropriate.

You have laid the foundation of general principles upon which you will cross-examine the target without yet having asked him a question. He has had no ability to see you coming and to shade his response.

Please don’t limit this technique to criminal cases. Physicians will opine on general principles as well. Use your opponent’s expert to acknowledge literature upon which your expert relies. Emergency room doctors make excellent “innocents.”

The point of this piece: 1) determine first what your issues are, and then 2) look to who might give you the evidence to support your position. Look outside the obvious. Be creative while strengthening the ability to maintain control.

Law and Fact
The Journal of the Cuyahoga County Bar Association
July 2003

How to Win Cases – Part III

[teaser]Jay Milano, criminal defense, malpractice, and personal injury lawyer and law professor in Cleveland, Ohio teaches how to win cases.[/teaser]

“There are no rules in a knife fight.” — Butch Cassidy

Many lawyers, good ones, view dealing with the media as a knife fight. They don’t trust reporters or their editors and feel that even if they win, they will come out bloody. As a result, they take the gentlemanly way out and utter “no comment” at every opportunity. They may be right.

But then again, a competent lawyer should at least think through the options before deciding on a course of action. In fact, there are some rules in the “battle” between lawyers and reporters:

Rule 1: As in all situations, your ethical duty comes first.

Read the disciplinary rules (DR7-107). Given the amount of pretrial comment that goes on, and assuming that you are on solid ground with your statements, you should be able to comply quite easily. Remember, however, that the world tends to dump on the less powerful.

Rule 2: Determine what you want to say before you get near the interview.

The camera (even a reporter’s notebook) acts as an aphrodisiac. Once you get a whiff, you might not be able to stop. You will end up talking until drool runs down the corner of your mouth. Nothing you cared about will get in the story. As a result, it is imperative that you plan in advance exactly what points you want to make. First decide if there are any broad issues of interest to the public, outside of, but related to, your case. There may be a pattern of abuse or a law that needs to be changed. Next, determine the single case-related fact most important to your reason for giving the interview. Move down through your points in descending order of importance. The longer the interview, the more points you can make. If you are trying to get a message out over time, repeat it word for word each chance you get. It will take time to register with the public, but it will.

Rule 3: Consider your media and then fashion your quotes to fit.

For TV you get 10 seconds, maybe 20, to get your point across. In print count on 2 sentences. Before the interview think of how you can fit your thoughts into that framework. Speak English. Sound intelligent. Sound profound. Sound uplifting. Sound plain-spoken. Just don’t sound like a lawyer.

Rule 4: No matter what they ask – follow Rules 2 and 3.

TV has to fill the box everyday. They need words and pictures. A newspaper story needs words. If they are there talking to you, they want you. Say what you need to say, regardless of the questions that are asked. The reporter will then fashion their story around you. You can control what is printed or televised by what you are willing to say. You can devise and string quotes to write their whole story. If you are doing a print press release, consider including only the quotes that you want printed.

Rule 5: Everything is on the record.

You cannot take anything back. Set the ground rules first. Here is a loose interpretation of reporters’ rules:

On the Record: Everything you say is fair game until you say otherwise.

Off the Record: You will not be quoted by name, but you may be quoted in such a way that you should not be able to be identified.

Background: The item cannot be used without separate confirmation. You will not be quoted.

Rule 6: Establish a relationship with the reporter based on credibility and trust.

This is not about reporters using you or you using them. Your ability to function effectively in this arena will come only by being credible over time.

Rule 7: Think simply. Speak plainly. Act decisively.

Law and Fact
The Journal of the Cuyahoga County Bar Association
October 2003

How to Win Cases – Part IV

[teaser]Jay Milano, criminal defense, malpractice, and personal injury lawyer and law professor in Cleveland, Ohio teaches how to win cases.[/teaser]

Fifteen years ago Milliard Farmer, a legendary death penalty lawyer, came to Ohio and spoke. He decried the loss of civil confrontation within the courts. He told us that lawyers were becoming afraid to speak their minds, and that justice would pay a price. We were too worried, he said, about our practices to let the bench know when we thought they were wrong. He talked about a spiral where lawyers became more timid and judges less accustomed to open discourse. I don’t know if he was right, but:

I am afraid to write this column.
I am afraid to say that I am afraid to write this column.
Lean over close so I can whisper to you.

Nothing, absolutely nothing, more surely injects fear into the heart of a solo or small firm lawyer than the thought of the suspension of his license.

Even a six-month suspension kills a practice. You must cease work on all cases, notify your clients, and close your office. No income, no realistic ability to find other meaningful employment: you will have to start over. You are publicly and privately disgraced. Your family knows, your kids know, your friends know, their friends know. You dread the most cordial “How are you?” You are unable to pay your employees. They are out of work.

Mark Gardner was suspended for six months for saying bad things about a Court of Appeals. He said them in a brief to that Court. Among other things he stated the the court had a “prosecutorial bent.” The Supreme Court considered it “an unfounded attack against the integrity of the judiciary.” By all accounts Mr. Gardner acted out of character.

It is not that Mr. Gardner was sanctioned. It is the severity of the sanction. He could have been found in contempt with a finite sanction such as a fine or even cooling his heels in jail to consider his intemperance. He could have been reprimanded, as the hearing panel suggested. He could have been suspended with the suspension stayed, as the board of commissioners recommended. Instead, he was suspended from the practice of law. That is a life-changing punishment.

Now, how many of you lawyers will ever say anything critical, even remotely critical, of a judge or tribunal? Who will split the hairs of what is or is not appropriate if the consequence for the first offense is so grave.

I believe that the majority of lawyers will remain silent. I also believe that if that happens, the integrity of justice will be compromised. Lawyers need the ability to speak their mind. Again, it is not total freedom to deride the judiciary with impunity that is important. It is that the punishment fit the crime.

By the way, after you have read Gardner, read Office of the Disciplinary Counsel v. Wrenn, (2003) 99 Ohio State 3d 222. It was decided one month before Mr. Gardner’s case. In that case, Mr. Wrenn, a prosecutor, withheld exculpatory evidence, including DNA testing, from both the opposing attorney and the court. The Court stated at 225:

Respondent breached his duties as an officer of the court and his public responsibility as an assistant prosecutor. He had ethical and legal obligations to disclose discoverable information that was relevant, exculpatory, and not privileged and he failed to do so on more than one occasion. We do not accept respondent’s assertion that it was an innocent misrepresentation. When the court inquired about the DNA test results at the pretrial, respondent failed to disclose that he had knowledge that testing was complete and the results were favorable to Derr [the Defendant].

Respondent’s failure to disclose the information before the first plea was inexcusable and undermined the integrity of the criminal justice system.

Mr. Wren received a 6 month suspension, stayed.

Read both cases. Make an independent decision as to whether they are different enough to warrant so great a disparity in punishment.

Call me. We will talk about it – in private.

Law and Fact
The Journal of the Cuyahoga County Bar Association
January 2004

How to Win Cases – Part V

[teaser]Jay Milano, criminal defense, malpractice, and personal injury lawyer and law professor in Cleveland, Ohio teaches how to win cases.[/teaser]

All lawyers, and most other Americans, know about Gerry Spence. He is the long-haired, fringed suede, book writing, TV commentating, trial lawyer. Some, myself included, believe him to be the best of us at understanding and then teaching juries. On the other hand some, myself included, fear he has passed over into the stage of his career that Dick Feagler once described as, “Old lawyers do not retire, they turn into caricatures of themselves.”

So what?

Gerry Spence once defended a young man named Escabel, charged with murder. The defense was insanity, except Spence had no psychiatrist willing to opine that Mr. Escabel was insane. He did, however, prove insanity and win an acquittal using the cross examination of the State’s psychiatrist.

Like I said, you’re not Gerry Spence, so go hire yourself an expert.

The following rules apply to both criminal and civil cases, admittedly in differing degrees:

1. Always have an expert in science or other appropriate cases, either to prove your case or to act as a counter-weight.

Though this seems axiomatic in civil cases, we have had defense lawyers proceed without one, usually to a generous settlement.

In criminal cases, too often because of lack of resources, defense experts are absent, usually leading to jail time. A clear example in DUI cases is the need for an expert to teach the jury field sobriety tests are unreliable. Juries, even with proper cross, are seeing the tests are infallible.

2. Credibility. Your credibility is what wins cases. Your expert’s credibility will do likewise for you.

All of us can spot a hooker in a Las Vegas lounge. What makes you think your opponent…or more important, the jury…is any less skilled in this arena.

3. Develop a list of experts from whom you can obtain preliminary opinions.

They do not have to be used as trial experts. They are not necessary in all cases. They may, however, save money and a trip down a blind and expensive alley.

By the way, under all circumstances, get to an expert early. It is a most common complaint among them that they are called by lawyers two weeks before trial.

4. Get the CV, then ask your expert such questions as:

“How often have you testified?”

“Have you been attacked?”

“How might you be attacked?”

“Do you have transcripts?”

“What lawyers have you worked with and may I call them?”

Don’t be afraid to ask “the doctor” questions about himself.

5. You teach the jury, the expert teaches you.

Clients expect us to already know the science that proves their case. Experience teaches us some, but it is impossible to be an expert in all areas in which you might try a case.

Simplistically speaking, science is based upon peer review literature. That means that it has been tested by the scientific community. Get the literature from your expert, whether it be a test-book or articles. Learn the science. Use your expert as your tutor.

6. As you receive the information on your opponents case, use the expert to point out the errors so that you can prepare the cross.

Conversely, determine from your expert how his opinion will be attacked and build defenses to the attack into your direct.

7. Cross an expert from the general to the specific.

The more dramatic of us consider this as cross examination using the method which a shark uses to hunt. Circle the expert with general and irrefutable principles related to his testimony. Bump him once in awhile with pointed questions, just to see how he reacts. Move your circles closer with more detailed cross based upon the science which you have learned. Of course, you will control him by using closed-end questions.

You need to be persistent. We are all used to nodding in awe as doctors make and explain decisions about our lives in language we don’t understand. Learn the language and don’t let him off the hook.

In the end, for the last question, maybe once in a career, you will have placed their expert in such a position that you can ask the open-ended question. Most likely it will be something like, “Doctor, we’ve agreed that the June article in the Journal of the American Medical Association presents the latest data on this issue. You have it in front of you. Now please read to the jury the section that supports your position.”

Ask the question and if you are sure you are right, sit down in one of the chairs in front of the bar and wait for an answer that will never come.

8. The direct of your expert is different.

It is a dance, as is all direct examination. You lead, the witness follows.

  • Don’t go through the CV in the order it is written. Use things your expert has done as a jump-off point into your case.
  • The magic phrase is, “Doctor, what is the significance of…?” It allows them to talk forever.
  • During your direct, build in defenses to the cross. Set up the scenario that you anticipate and let the expert explain during his direct.
  • Most important, although said before, find an expert who is a teacher. Let them teach the jury.

Spence tried and won Escabel without an expert. The flip side of the coin happened to me in a case where a young man was accused of murdering a baby by punching him so hard that he ruptured his intestines. Our expert was a Harvard educated, elected county coroner. He was convinced that the science proved the young man innocent. I traveled the hundred miles to see him over and over so that he could teach me the science and we could then dance in the courtroom.

The trial came and he was called. I tried to use all of the rules above. During his testimony, however, each question I asked him brought only a curt yes or no. We weren’t dancing; he wasn’t teaching, and I was sweating. Finally, after about 15 minutes of this torture, panic set in and I asked him the only question that I could think of:

“Doctor, would you like to explain to the jury what happened here?”

“Thank you, Jay.”

He proceeded to set up his projector and spent almost two hours teaching a fascinated jury just how this child died and how it was not the fault of the young man on trial. I sat and watched the whole thing. When next I spoke I knew I had to say something brilliant, which was “Thank you, Doctor.”

The jury acquitted on the first ballot.

I haven’t spoken to Dr. James Patrick of Toledo in a few years. I hope he is well. Most of what you have read, I learned from him. Much more than the ideas about how to use experts, he taught me (more by example than by lecture) the core concepts which underlie this entire series.

Your credibility, your case’s credibility, and your expert’s credibility are your sword and shield in trial.

That war metaphor notwithstanding, an effective lawyer is a teacher first and a warrior second.

Law and Fact
The Journal of the Cuyahoga County Bar Association
April 2004

The St. Bernadette Defamation Case-Teachers Vindicated-$1,000,000 Verdict

[teaser]Defamation, slander and libel are serious and personal injuries to your reputation. If you have been damaged you need the lawyers of Milano Weiser. So imagine for a moment that you are a grade school teacher at a local Catholic school…[/teaser]

For 24 years, you’ve worked day in and day out with young girls and boys, helping them with math, science and reading classes. You’ve watched younger brothers and older sisters move through from kindergarten on up until they are ready for high school and every weekend you continue to watch the children and the families grow at Sunday mass.

After 24 years of faithful service, however, the world changed – for the worst. Suddenly the new priest and the new principal don’t want you around anymore and decide not to renew your contract. Parents, who’ve been with the school for years, demand to know why the teacher who oversaw the educational development of their children is suddenly being told to leave.

There is a public meeting, in the Church. More than 400 people from the community gather at the meeting to find out why a teacher with such a long history at the school had been told to leave so abruptly. Reporters are there from the local papers.

The pastor, your boss and your spiritual advisor, walks to the pulpit in his full priestly garb, just like it was a mass.  He then issues the astounding claim that the Diocese has conducted its own investigation into the issue and agrees with the school’s decision to let you go. The priest looks out over the large crowd gathered at the church and holds up a stack of papers. He tells your friends and family and the whole world that if they knew what was in those files then they would understand why the church had not renewed the contract. None of it is true. There was no investigation.Your career was flawless. How could this happen? It was apparent to you, but unfortunately not to anyone else, that the priest was trying to cover his own hind end. If he made a bad decision it would only add to the body of criticism already swirling around him. If the Diocese made the decision it was unassailable.

[pullquote_left]In a heartbeat, your entire world has changed. Not only are you out of your job, but more than 400 people want to know what you did that was so wrong to warrant why you were fired. The implication is that you are a criminal.[/pullquote_left]

Yet you know the truth – that the Diocese never conducted any investigation and that there isn’t anything is your personnel files that can justify for the way you’ve been treated. What are you supposed to do now?

For three local teachers this was more than a nightmare – it was the reality they faced.  So “the ladies” found themselves sitting in our office, looking for a solution to an unsolvable problem.  In the glass walled conference room of our building’s first floor the three teachers and their husbands sat and did their best to explain everything that had happened leading up to the meeting- leading up to what they called the most humiliating experience of their lives.

We listened to the entire story. What happened was defamation. That is when you lie about someone and it damages him or her. They had a case.

Cases are easy-apply law to facts. But putting the ladies’ lives back together, restoring their dignity would not be so easy.  We knew, and explained to them at that first meeting, that taking on an entity as powerful as the Catholic Church would be a difficult proposition. The Diocese would fight and spend and accuse to protect their own-right or wrong. That was our opinion, based upon our experience.

We would fight for vindication-to clear their names. The case could not be about money, not for them and not for us.  In the end, however, the amount of the verdict-the money-was clear evidence of the outrage of the jury.

[pullquote_right]Over years of fighting together we become close to our clients. “The ladies” would meet with us in our conference room and then stay on for hours after the lawyers left to work together with the burden of the effort. It was intimidating and tiring for them. They were, however, resolute.[/pullquote_right]

The case started in the summer of 2006 and kept going for more than three full years. During that time the teachers kept answering more and more questions, and we kept digging for more answers and more proof that they were purposefully defamed and humiliated. For its part, the church fought every inch of the way claiming that the teachers and several other parishioners were just trying to attack the priest and the parish. “How dare you?” was their unambiguous response.

But this wasn’t just a case about the church or a priest, or even about teachers. It was about what happens when a bad boss makes a mistake and then tries to hide behind the company or the institution rather than accept responsibility. For three years, the boss tried to dodge responsibility for his words and actions and it was our job to make sure that in the end he was accountable for the embarrassment and heartache that he caused for those teachers. The trial was brutal. The defense was that anyone who criticized the priest or the principal was part of a “gang of 90,” out to ruin the parish. The priest’s defense included the proposition that he had subjected himself to civil authority for two weeks and that was punishment enough. Again and again, it was “How dare you challenge us?”

The jury verdict was clear and unambiguous.  The priest’s words and actions were false, and they had caused serious damage to the teachers’ lives and reputations. The jury awarded more than $300,000 to each of the teachers for a grand total of $975,000; giving the teachers the thing they wanted most – vindication and the right to say they hadn’t done anything wrong.

P.S. Both sides had the right to appeal. On the day the appeals would start (and with an appeal, another 5 year fight) the case was settled and dismissed.

P.P.S. Jay, why would you take on the Catholic Church, both in this case and the sex abuse cases?

First, we do not pick our targets. It does not matter who the opponent is. If we were intimidated by power or perception, we would have no value to our clients.

[pullquote_left]We accept clients. If a client comes to us and has been treated unfairly, or felt the abuse of power, or was hurt by a serious mistake; and if they need and deserve help: then we accept their case.[/pullquote_left]

We would never attack God or the faithful. Faith and belief are important and helpful for people and we would never attack those values. However, sometimes some people use the faith of others for their own benefit-for power, for greed, for prestige, for money, or for sex. Those people are not holy. They are hypocrites. Interestingly enough, Jesus had a name for them, “Whited Sepulchres”. That was the name for the stones that covered the burial caves above Jerusalem. They were whitewashed and looked pretty from afar. When you approached-they stank. Of course, when you attack a hypocrite, what do they do? They claim you are attacking their institution or the values they seek to hide behind.

This case, at least from our point of view, was not about the church. It was about hypocrisy and abuse of power. That is the way the jury saw it. Eight people from differing backgrounds, brought together to do justice.

“I will track you to the ends of the earth!” The Death of the Youngstown Mafia

Jay Milano, law professor and nationally known criminal defense, malpractice, injury, and accident lawyer in Cleveland, Ohio writes what it is like to represent a client charged with the death penalty in Federal Court.

So said our client (who killed people for a living) to Jay Milano just before the trial. (Sounded like a death threat to me).

It was the “Great Mafia Sit Down of 1999”. Present were the reputed head of the Youngstown mafia, his best childhood friend and two of his muscle. They were, to use the contemporary phrase, lawyered-up.

His brother had just made a deal with the government to tell everything – everything. They needed to decide what to do.

The meeting took place not in a hotel, or bar, or steam bath (with everyone naked so no one could wear a wire) but in a Federal Courtroom. They were all in jail. The Judge had allowed them time together to talk about their defense. All sat handcuffed and shackled at a very large conference table, under the Seal of the United States of America. Around them stood 15 U.S. Marshals, silent but watching everything – like so many eunuchs guarding the concubines.

Every criminal defense lawyer should try a mafia case. It is one true rights of passage (death penalty cases being the other). This one began with a phone call from the judge, asking if I would represent a man charged with what was then the first federal death penalty case in the Northern District of Ohio – conspiracy, gambling, drugs, murders. The client did not have money to defend himself. The answer was yes without reflection.

There were two prosecutors; one my teaching partner, and the other a close acquaintance (our kids were growing up together).

In a federal death penalty case the defense has the opportunity to travel to Washington early in the case and present to the Justice Department why death was an inappropriate penalty. Off we went, one other lawyer and I.

The presentation was  made in the Attorney General’s conference room to a panel that included the Assistant Attorney General in charge of death penalty cases around the country. This was not just a conference room at any federal building. It was Janet Reno’s conference room at “Justice”. It looked like it. Fireplaces and wing chairs and portraits. We were duly intimidated.

Our argument was simple and straightforward. The government had charged two black men with the death penalty for carrying out killings. They did not charge with the death penalty the mafia leaders who ordered the hits. It was a bonehead move I thought…but did not articulate…and unjustifiable. They agreed and the death penalty was removed. No one has ever explained why they would have charged that way in the first place.

(The cheapest way, it turned out, to get into Washington was to fly to Baltimore and then take a limo to the Justice Department. The government paid our expenses and we were ultimately called before the judge to justify the limo. We were right, but she was not amused.)

The case itself was a masterwork – not by the lawyers but by the mafia don. Every single defendant, and there were at least 20, cooperated with the government. While the boss sat in jail for more than almost two years, he directed the action. One by one his underlings pled guilty. They each gave information on the next higher up. No one went to jail. The government was the willing victim in an informant Ponzi scheme. They were after the biggest fish and were willing to use the freedom of lesser criminals as bait.

Which brings us back to the sit down. The brother, second in command, had just turned. He, too, became a government informant.The don was not concerned, he had a plan. My client was very concerned and feeling very betrayed.

I had once, in another case long before, represented the brother. In the client’s eyes, at this moment, I was part of the plot against him, a snitch along with his former boss.

He got hot. He shouted that he was being betrayed. The lawyers and the criminals looked away. The marshals stood on alert, hearing everything, ready to move but motionless.

“Anyone who has betrayed me, I will track to the ends of the earth”. He had, by all accounts, killed people. There was no doubt about his meaning and there was no doubt that I was among “anyone”. He screamed, but he would not look at me. I screamed back – “Look you motherf*cker, if you are going to threaten me look me in the eye. Right now I am the only person on earth who gives a f*ck about you.”

The screaming went on for ten minutes, no one else saying a word. Then it ended.

(This man was not the only person (who killed people) who threatened me. You will, however, have to get me drunk to hear the other story.)

I left the meeting, and tracked down an expert on ethics for advice on what to do. We sat in his car. Others, including the marshals, had heard, so there were no secrets to keep. Though I had a right to leave the case, if I believed it had blown over I could ethically stay. Even a**holes, dangerous a**holes, are entitled to a defense. I knew he was a snake when I took him in.

I truly believed that my reaction convinced him of my integrity and that I could try the case without fear.
Well, almost without fear.
But without fear that affected my effort.

Next came the final payment on the informant Ponzi scheme. As had been his intention, the don, minutes before trial, turned on his bosses in the Pittsburgh mafia. Get out of jail free. The government now had bigger fish and a whole other set of headlines.

I swear he has never been to jail, though the government says otherwise. I used to tell the prosecutors and anyone who would listen that we would see him during the trial driving to and from the courthouse in a convertible with two blondes – lighting his cigars with $100 bills.

While the don was entering his plea in open court, the last three defendants sat in a cage in the basement of the courthouse. They were jammed on one side of chicken wire in a holding cell built for one. Their lawyers equally jammed into the other side. Both groups were locked in.

Bernie the Jew was adamant. His lifelong friend would never betray him. They had been together since they were six. Did we know all of what they had done together? It could never happen.

After the don had testified, told everything about Bernie and Youngstown and gambling and drugs and murders, Bernie the Jew leaned over to his lawyer and whispered “Well, kid, you got your work cut out for you.”

The government claimed they took everything from the don. They took a hotel in the Bahamas. They took his house and his bank accounts. Everything.

After the government was through with its examination in front of the jury, it was my turn. I knew him.

“Mr. Strollo, where did you bury the cans?”

Let me explain. Italians, and most Europeans, did not trust banks. This was especially true, as you might imagine, of mafia members. As a result, they buried their money in milk cans. Burying money in cans, digging up cans of money – it’s a running wise guy joke. His fellow boss in Cleveland was reputed to have buried $50,000,000 in cash in a field next to his sister’s house in St. Louis. The government sent bulldozers, without luck.

He knew immediately what I was talking about – but could not let on – except to me. Unlike my client at the sit down, Mr. Strollo had no problem looking  me in the eyes. For that moment I was far more afraid than I had been in the face of a much more direct threat.

“What are you talking about?”

“You are a mafia don. You have been in the underworld all of your life. Where is the cash?”

“I do not know what you are talking about.”

He knew. I knew. The government knew. The jury probably knew, too. It did not make much difference because Mr. Strollo was probably telling the truth – about everything. And he told about gambling and dope and murders.

The three who went to trial were convicted after two months of testimony. Their sentences were life without parole.

I had no problem representing Jeff Riddle.
The jury believed he got what he deserved.
I did all that I would to see that he was treated fairly.
In the context of his case, he was.

In the big picture, someone was cheated. The entire Youngstown mafia got off, in return for snitching on the Pittsburgh mafia. The Government got headlines all around. Whether it got (or even cared about) fairness is a different analysis.

The Baptism, Under Fire, of Rachel Weiser

[teaser]Milano Weiser malpractice, injury and accident lawyer, Rachel Weiser experienced more in her first trial than other lawyers do in a lifetime.[/teaser]

February in Cleveland 1999, Rachel Weiser stepped out of the sleet and in through the front door of the Federal Courthouse on Superior Avenue. She was three months pregnant, suffering from morning sickness, and preparing to defend a member of the Youngstown mafia. The case had begun as the first federal death penalty charged in Cleveland. But as she walked in that morning, the stakes were not quite so high. The client faced life in prison, with no possibility of parole.

At 23-years-old, and just months removed from passing the Ohio bar exam, Rachel was  stepping into the middle of one of the most widely publicized federal trials in Cleveland. This was to be the death of the Youngstown mafia.

Rachel sat down next to her client, Jeff Riddle. The government claimed (and the jury believed) that he was the hit man for the Youngstown mafia. He had once shot a lawyer in the leg just to get a case postponed.  Sitting on the other side was her boss, Jay Milano, who was the lead chair for the defense.

She was nervous – but more.

“I was just enthralled the entire time,” Rachel said looking back at the case. “I was just out of law school, just passed the bar, and the first trial I worked on was this huge mafia case that was all over the news. Jay even made me do the interview with one of the local television stations. People watching the news that night had to be thinking, ‘Who is this girl?’ This was a huge case and here is this 23-year-old lawyer on television talking about it.”

As if those circumstances weren’t enough to get a young lawyer excited and intimidated, Rachel got to watch two of her former professors duke it out throughout the trial. The prosecutor and the defense lawyer together taught her how to try a case. “Jay, and the prosecutor for the case, James Wooley, were my professors for my trial tactics class just a year before when I was still in law school,” Rachel said. “There I was working my first case, that was this huge intimidating mafia case, with my two professors watching me.” She also got a chance to watch them. Was what they had taught her real, or a law school hypothetical that broke down in front of a jury?

The case was the product of a four-year FBI investigation of the mob in Northeast Ohio.  In the months leading up to the trial, news outlets and newspapers prepared for what was called the last mafia trial in Cleveland, but then just before the trial started the biggest headline hit. The main defendant in the case, the don of the Youngstown Mafia, Lenny Strollo, had taken a plea deal with the Federal Prosecutors and would testify about everything he knew about the mob and the other defendants.

Suddenly the case was down to three men, Riddle and his cousin, Lavance Turnage, who were both accused of being the mafia’s muscle, and Bernard Altshuler (aka Bernie the Jew) who was accused of being an associate with the mob.

[pullquote1 align=”right”]For six weeks the trial raged on as Rachel sorted through hundreds of sworn affidavits, kept track of evidence, and researched every law she could think of while her two former professors battled back and forth, cross-examining witnesses and pushing to make their cases.[/pullquote1]

“It was incredible. I was sitting in Federal Court with the top lawyers in the city, and sitting next to scary but also very savvy clients, who were all facing life sentences,” Rachel said. “Everything about it was intimidating, but at the same time it wasn’t intimidating. I was there with my teachers, with these respected attorneys who helped me.”

So the case that should have been the most intimidating case in the world for a young attorney, wasn’t.

It turned out to be a springboard for Rachel. She learned early on that if you are prepared and keep a cool head, you can always put on a good case for your client.

“I got to see lawyering at its best in that case,” Rachel said. “Too many attorneys make decisions and do things that aren’t in the best interests of their clients because they are intimidated, or scared and not prepared. You can’t let the fear of a case control you. You have to be so prepared that you never make a decision out of fear – you make decisions because you are prepared to make them.”

Rachel is not yet 35. She has a plaque on her desk: “You’re Rachel Weiser?” It’s the question she has been asked too many times by old lawyers who represent powerful clients and who are shocked to see this young woman in charge of the case against them. They always start with the dismissive, ” Young lady, I have been doing this for…”. That remark is quickly followed by an offer of $5,000.00 to settle the case. Then comes the admonishment, “If you know what is good for you, you will take it.”

Rachel has won multiple $1,000,000.00-plus judgments for her clients. There is nothing more satisfying than to see the look on the faces of these “experienced” lawyers when the jury announces the verdict.

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