The classical art of memory is a set of techniques invented in ancient Greece. These techniques were used by the Greeks; by the African Griots; by St.Thomas Aquinas; by Cicero and other famous orators to memorize their speeches. The technology requires creating mental imagery so colorful, bizarre and shocking that it’s unlikely to be forgotten. That is why this skill is as much about creativity as memory.

Our modern world is filled with iPads, iPods, and smart phones. When we want any type of information it is only a Google search away. Obviously these are wonderful devices which assist our business every day, but one unintended side effect of all these devices is that we no longer seek memory training. We have lost the valuable ability to mentally store ideas, speeches, and poetry and to dredge them up when needed.

The ancients invested time into their memories, and cultivated them. Today, we have outsourced our memories to external devices. The result is that we no longer trust our memories.

This is not a great loss to most people because they don’t need this ability. However trial lawyers and public speakers are among the few who can benefit from memory training which brings the prized ability to speak without hiding behind a lectern and being a slave to notes and outlines.

This is a fertile area for trial lawyers. There are certain things we should have at our fingertips: rule numbers, case names and set pieces like describing reasonable doubt, presumption of innocence or the peroration. We know we will need to access them many times in our careers, so why not memorize them early on? It seems pretty efficient. While it is a little late for me, but the right time for most of you.

For quite a while I had an interest in memory training, but I didn’t have the perseverance to work on it. Instead I relied on the rote memory technique of repeating things in my mind until I could bring them back up. This is a highly inefficient way of memorizing and doesn’t last very long.

I spent a year at an old-fashioned english public school. They still used Victorian methods of teaching. The master pounded facts into our heads until we remembered them. Needless to say this was an unpleasant experience and it didn’t work very well. Repeating facts over and over again until memorized has been largely discredited in modern systems of education. We were lucky if we remembered these “facts” until the next exam.

Once again I decided to study the memory arts because of a recent success. I had memorized a short speech using the ancient loci method, and it worked splendidly. So I got back in the game by reading Joshua Forer’s “Moonwalking with Einstein, The Art and Science of Remembering Everything” (Penguin Press). Forer is a journalist who became mesmerized by the contestants he was covering in the U.S. Memory Championships. He trained himself in their techniques and the next year he won the championship. In the book, he takes us through his learning process. Although this is not a how-to book, readers will, nevertheless, get an excellent introduction to the technology.

Understanding memory

Developing a sticky memory involves mastering the technique combined with a basic understanding how our memories work. Everyone has the potential of a powerful memory but, despite legend, no one has a photographic memory.

Most impressions that enter our brains don’t need to be remembered more than a few seconds. We just have to react to them. This short term memory is severely limited. If we remembered everything, our minds would be quickly overwhelmed. Short term memory is like the memory cache in your CPU. Long term memory is the hard drive. The memory technology is designed to make short term stick and enter into our long term memory which can last for decades.

Our short term memory stores thoughts for 20 to 30 seconds only. The transfer of the thoughts from short to long term memory is called consolidation. Association and rehearsal turns short term into long term. So what is the technology to consolidate memories?

Mnemonics

Mnemonics refers to artifical memory techniques such as rhymes, patterns, acrostics, acronyms and more sophisticated systems such as Link, Loci, Peg and Phonetic systems. For speeches the best systems are the Link and the Loci systems and the Loci is far superior for our purposes. Later I will outline the Memory Palace system which is the best of the Loci systems.

Memory is based on three processes: making it memorable; finding a place to store it; and being able to bring it back when needed. There is a distinction between natural memory and artificial memory: natural memory is that memory which is embedded in our minds, born simultaneously with thought. The artificial memory, which we are interested in, is that memory which is strengthened by training and discipline. It is called artifical because it is created through memory techniques like the memory palace.

Human evolution explains why the Greek method works. Our brains are effective in dealing with sensory data. By correctly interpreting the five senses, our minds understand the environment and makes decisions. Among our senses, sight is the most sophisticated and developed of all. “..half of the human brain is devoted directly or indirectly to vision..” said Professor Mriganka Sur of MIT’s Department of Brain and Cognitive Sciences. For that reason, our brains are extremely effective in storing and processing images; especially of concrete, real world objects.

Trying to memorize abstract symbols, such as words printed on a page, is unnatural and inefficient. Words are useful units of communication, but they are not how our brains optimally process information. When you think of a cow your brain brings up the image of a cow not the letters: C O W. So images are our mental language not words.

The development of artificial memory has two components: images and places. The image is what we want to remember, the place is where the image is stored. It is a combination of visual memory and spatial navigation. Two things our brains are good at. You have probably used this method in the past without realizing it. Perhaps you lost something and you mentally re-trace your steps to find it. You go back to each place you were and try to think if you left it there. This works because our brains naturally work this way.

“Loci” is Greek for “locations.” The ancient Greek orators used the loci method to recall each point of a speech in its proper order. This involves mentally moving through a familiar place and storing each image to be recalled later in a specific place. This is a type of anchoring. During the speech, the orator would mentally visit each location in turn and mentally retrieve the item.

The Memory Palace

The Memory Palace technique is based on the evolutionary fact that we are extremely good at remembering places we know. A ‘Memory Palace’ is any well-known place that you’re able to easily visualize. It can be inside your home, your school, your work place or the route you take to work. That familiar place will be your guide to store and recall any kind of information. Let’s see how it works.

Find a specific route in your home. Motion is memorable so visualize walking the route. This will help you keep the items in proper order as you move through your route. Look for distinctive features to use as places. It might start with the front door, move to an entrance table, a picture, the sofa etc. Use places that catch your attention.

Now that you have the loci it is time to work on the images. The Memory Palace system works through visual association. Take the loci and combine it with the image you want to remember.

The creative part is in the images. The visual association has to be strong for this to work. Here is the best description I have read on images:

“Make it crazy, ridiculous, offensive, unusual, extraordinary, animated, nonsensical — after all, these are the things that get remembered, aren’t they? Make the scene so unique that it could never happen in real life. The only rule is: if it’s boring, it’s wrong.”

What sticks in the cells of our brains are disgusting, bizarre and novel images. We forget things because they are unexciting and dull. Imagination and memory work together. The more vivid and surreal the image the easier it is to recall.

Putting this to Work

Using the Memory Palace method, I decided to memorize the Rudyard Kipling poem “If.” I didn’t want to learn every single word, only the most important word in a line. This is how we memorize speeches. Cicero stated the best way to remember a speech was not word by word but point by point by creating an image for each major topic.

The first line of the poem goes like this:

“If you can keep your head when all about you are losing theirs and blaming it on you;”

The most important word is head. So I started at the front gate to my driveway and imagined Adolf Hitler’s head impaled on it surrounded by brimstone and fire. I could feel the heat and smell him burning. This is a memorable image which allows me to recall “head” on the beginning of my journey. I won’t go through the rest since bizarre sexual images help men remember more than any other. Ludicrous and bizarre images must be used for this to work. Next I walk to my front door and have an image for “trust” which prompts the next line. I go quite deep in the house for all the lines.

The great talent of the mnemonists is the creation of bizarre images on the fly so they won’t be forgotten. That is why at the beginning of this piece I said creativity is the important skill. At the championships, they memorize several decks of cards by seeing each one for only a moment. They can flash the bizarre images almost immediately to set the memory of the card in their minds and then recall them in perfect order.

Results

In order for this to work, you must be like the mental athletes in the memory championships and push your memory as hard and as far as you can.

This last Sunday I tried out the Memory Palace technology and worked on the poem  by Kipling. As I related, I picked out the main word in each sentence and placed them on a journey through the first floor of my house. It took about 15 minutes to capture the poem. The words other than the topic ones I had to use rote memory. I thought it too much work to visualize every word. Try this yourself.

I recommend you spend about 15 minutes a day working on your memory techniques. Start a conscious program of memory training. Perhaps to remember a poem or a quotation and store it in your long term memory.  Just as with everything else the more you practice these techniques the better you will perform them.

I also decided to start teaching this system in my UM law class to give the students an introduction to memory training. When I started this blog, I wrote that the main reason was to work on things I wanted to learn or improve on. I wrote this piece to be sure I grasped how the system worked. Perhaps my description is not good enough to get you started, so let me recommend the following books I read this last week besides “Moonwalking with Einstein”:

“The Art of Memory” by Frances A. Yates
“The Mind of a Mnemonist” by A. R. Luria
“The Memory Palace of Matteo Ricci” by Jonathan D. Spence

“Your Memory How It Works And How To Improve It” by Kenneth L. Higbee

“Learn to Remember” by Dominic O’Brien

“The Memory Book” by Harry Lorayne and Jerry Lucas

“The trigger of a semiautomatic pistol is pulled, and a firing pin in the back of the gun darts forward, slamming into the primer on the rear of the cartridge holding the bullet and causing a small explosion. This ignites the gunpowder in the cartridge, blasting the bullet out of the barrel with tens of thousands of pounds of pressure. That blast goes both ways, driving the left-behind shell casing backward hard enough to leave an impression from the inside of the gun on the shiny brass. The pistol ejects the casing, hot and spinning.”

This is how you elevate the mechanical function of a gun from boring to interesting and make it stick in your audience’s mind. Much of our language is abstract, but life is concrete. We need to turn our messages into concrete examples that the audience can easily grasp and remember. It is the difference between an engineer’s schematic and a working model.

My favorite example of this is the fox and the grapes from Aesop’s Fables. We all remember the story about the fox futilely jumping to get the grapes and when he gives up says they were sour anyway. All one has to say is “sour grapes” and we immediately get the point. This story is still with us after 2600 years. If Aesop instead had said, “Don’t be a jerk when you don’t get what you want,” no one would have remembered it. That is the power of a vivid concrete image. Our brains are wired to retain concrete images.

The moral of this story is to turn your message into something concrete.

Churchill said: “In the course of my life, I have often had to eat my words, and I must confess that I have always found it a wholesome diet.” So I followed my own advice in the “first minute” of the opening argument. I needed to get the jury’s attention right from the start. The publicity surrounding the case was so poisonous I was afraid it would be over by the end of the prosecution’s open. In jury selection, at least half of the venire was quickly dismissed because they expressed hatred for John. For a full treatment of the outrageous publicity please take a look at our motion for change of venue posted on this website.

Here is the “first minute” of my opening argument:

“If you were standing on the side of 120th avenue at 12:45 am, you would have seen John’s car as it traveled down the street. As it gets close to the stop sign you can sense there is something wrong with the car.

If you looked into the car you see John trying to control a huge car with an enormously powerful engine that won’t react to orders of its computer. Unknown to John, the throttle control system is not working right. The throttles to this huge engine, 12 cylinders 560 horsepower, won’t close. It won’t stop the fuel coursing into the monster of an engine.

You see John trying to figure out what is happening and he panics trying to stop the car, but without success as it suddenly accelerates through the stop sign and into the intersection smashing into Scott Wilson’s Hyundai.

You see and feel the tremendous force of the collision. Smell the engines and the gas and the smoke. You hear the crushing of metal and the screeching of tires as both cars transition uncontrollably through the intersection.  They are helpless passengers along for the ride, victims both of the immutable realities of physics:  speed, force and distance.

You see John’s head slammed against the driver’s side window hard enough to shatter it. He falls unconscious.

The automobile in which Scott Wilson was driving, now separated from John Goodman’s car, is over the bank, and upside down in a canal; dark murky water, thick with vegetation, and the car all but invisible to human eye.

When John wakes he doesn’t know where he is. He can’t grasp what just happened. He can’t wrap his head around it. You can see him getting out of the car looking around trying to make sense of what happened. He looks but sees nothing. It is almost pitch black. What did he hit? He can’t see another vehicle.

He starts walking towards his house to find help but he is so disoriented and lost he goes in the wrong direction.

He has suffered a concussion, a broken right wrist, and a fractured sternum. His already damaged spine is far worse from the crash. You can see him try to walk. The pain in his legs causing him to wobble back and forth.

As he walks the full force of the pain hits him. For the next hour his only source of pain relief comes from a bottle of alcohol. It deadens the pain.

You will hear from eye witnesses, experts and exhibits:

John Goodman was not drunk or intoxicated at the time of the collision. He simply had not consumed enough alcohol prior to the accident to put him anywhere close.

His car was defective causing sudden acceleration.

He suffered a grade 3 concussion causing confusion and disorientation.

He couldn’t see anyone to render aid to.

He left his passport and driver’s license in the car and was not attempting to flee.

Under the circumstances it was reasonable to look for help rather than stand on a dark deserted street.

This was a tragedy. A young man died. But this was an accident not a crime.

It is this tragic automobile accident that brings us together in this courtroom.

Now let me take you back 7 hours before the accident:”

I thought a good way to involve the jury in the opening was to let them see, feel and hear the accident for themselves. At least that was my idea going in. Unfortunately the judge sustained objections to that and I had to edit on the fly. The judge was very restrictive in his rulings and it made it much more difficult to be an effective advocate. I found myself self-limiting what I said during the trial in order to circumvent objections and avoid annoying sidebar conferences which interrupted the flow of the arguments. Judges seem to prefer a streamlined case without any real advocacy by the lawyers. A sort of “just the facts, ma’am” approach. And we wonder why the art of advocacy is dying in our courts.

I can’t see any objection to asking the jury to visualize what happened. After all isn’t that their job?

Move Over Ted Stevens, Here Comes Dr. Jordan: DOJ’s Next Brady Scandal?

[All of the facts in this post come from the 11th Circuit opinion in United States v. Ignasiak, publicly available on the 11th Circuit's website at http://www.ca11.uscourts.gov/opinions/searchdate.php or from PACER.]

Arthur Jordan used a counterfeit badge and posed as an on-duty U.S. Marshal in order to carry firearms onto commercial airplanes while on personal travel. He did this nine times. According to the United States Court of Appeals for the 11th Circuit, Jordan’s “criminal conduct” resulted in “multiple violations” of 18 U.S.C. Sections 912 and 1001 and 49 U.S.C. Section 46505, and “could have been charged as felonies.”

But Jordan wasn’t even charged with a misdemeanor. He got pretrial diversion from the South Dakota U.S. Attorney’s Office, paid $2,000.00, and agreed never to carry firearms on an airplane again, except while on official business.

Jordan is not your everyday citizen. He is none other than Dr. Arthur Jordan, who goes around the country testifying as an expert for the U.S. Government in Health Care Fraud/Controlled Substances Act prosecutions against pain management physicians. He charges $300 per hour and, during his November 2008 testimony in U.S. v. Ignasiak, claimed to have earned around $30,000.00 as a government expert up to that point in time. Dr. Jordan was the key government expert against Robert Ignasiak in the latter’s criminal jury trial, testifying for almost three days. (Roy Black was lead defense counsel during the trial.)

The 11th Circuit reversed Ignasiak’s convictions in January of this year, based on Crawford/Confrontation Clause violations. [See my earlier post here. See also 200910596[1]).

But there’s much more to the story. Given its reversal, and its finding that the evidence was sufficient, the 11th Circuit declined to address the other issues raised by Ignasiak on appeal–except for one.

You see, none of the Ignasiak defense attorneys knew during the trial about Dr. Jordan’s ”criminal conduct” or his South Dakota pretrial diversion agreement. Several months after the Ignasiak guilty verdicts, the government filed the Government’s In Camera Notice to the Court (“Notice”). The Notice, and an accompanying affidavit, were filed under seal. This post-trial Notice revealed Dr. Jordan’s conduct and his South Dakota pretrial diversion deal to Judge Lacey Collier and Robert Ignasiak’s defense team for the first time. The government requested that the Notice be kept under seal, in order to protect Dr. Jordan’s privacy interests.

In the Notice, the government also argued that its prior failure to disclose the Arthur Jordan impeachment material did not violate Brady/Giglio, because the Ignasiak prosecutor had not personally known about Dr. Jordan’s conduct, or the South Dakota pretrial diversion agreement, during the Ignasiak trial.

Judge Collier summarily granted the government’s request to seal the Notice, despite defense opposition. The defense filed a New Trial Motion based on the alleged Brady/Giglio violations. Much of that litigation was conducted under seal. A few documents are publicly available, but they are heavily redacted. The defense lost its New Trial Motion as well.

The 11th Circuit did not decide whether the government’s failure to discover and disclose Dr. Jordan’s conduct, before or during trial, violated Brady/Giglio. But it did order the government’s Notice unsealed and, through its opinion, disclosed Dr. Jordan’s ”criminal conduct” and pretrial diversion deal to the bench and bar. This was an admirable public service.

The 11th Circuit was clearly displeased by DOJ’s effort to shield Dr. Jordan. As the Court succinctly put it:

    ”Perhaps ironically, by arguing that there was no Brady violation in this case because the AUSA prosecuting Ignasiak was unaware of Dr. Jordan’s history, it is actually the government that most persuasively highlights the value in unsealing the Notice. Indeed, should the Notice remain sealed, the significant likelihood is that in the next CSA prosecution in which Dr. Jordan testifies as an expert, both the prosecuting AUSA and the defense counsel will again be unaware of the highly relevant impeachment evidence contained in the Notice. And in that case, as in this one, should the truth ever come to light, the government could again point to its own ignorance and claim immunity from Brady error. Stated this way, we would have expected the government to condemn, rather than condone, such a problematic outcome.”

In light of the 11th Circuit’s opinion, several questions present themselves.

1. Who Protected Jordan? In other words, why did he get what looks on its face like a very favorable pretrial diversion deal from the South Dakota U.S. Attorney’s Office? Who approved the deal and who within DOJ was informed about it? How long did the diversionary period last? Was it unusually short and, if so, why?

2. Who Revealed or Failed to Reveal Jordan’s Conduct and Pretrial Diversion Deal? The Ignasiak prosecution team, from the Northern District of Florida, purportedly did not know about Dr. Jordan’s “criminal conduct” or his South Dakota pretrial diversion agreement until after trial. Why not? The South Dakota U.S. Attorney’s Office is part of the DOJ and the U.S. Attorney network, and Dr. Jordan is fairly well known as a government expert in pain clinic cases. It is difficult to imagine that South Dakota prosecutors were not aware of Dr. Jordan’s ongoing role as a government expert.  Assuming that they were aware, why didn’t this raise any red flags, and who, if anyone, made the decision to quarantine this obvious Brady/Giglio material? If this is a cover-up, how high did it go? Was Jordan’s pretrial diversion completed before Ignasiak’s trial? Was it still in force when Jordan traveled, as he surely must have, to Pensacola for trial prep? Wouldn’t Jordan need permission from pretrial services in order to travel to Pensacola, and wouldn’t he have to tell pretrial service the purpose of his trip? Did the South Dakota U.S. Attorney’s Office know of the trip and its purpose? If so, why didn’t it notify N.D. Florida?

3. Why Did N.D. Florida Try to Seal and Suppress Dr. Jordan’s “Criminal Conduct” and Pretrial Diversion Deal? As the 11th Circuit correctly noted, the government’s effort to seal its own Notice had the effect of shielding Dr. Jordan’s misconduct from other federal prosecutorial offices. Even assuming, as the government argued in Ignasiak, that an AUSA in one federal district has no obligation to obtain Brady/Giglio from a fellow AUSA in another federal district, what possible justification is there for the active effort to suppress Brady/Giglio material that occurred post-trial in Ignasiak? 

4. What Subsequent Prosecutions Have Been Sullied by the Ignasiak Brady/Giglio Suppression? Did the Florida AUSAs ask Dr. Jordan about any upcoming trials Jordan may have had on tap with other U.S. Attorney Offices? If so, did the N.D. Florida make an attempt to tell the other offices about Dr. Jordan? It unquestionably had an ethical duty to do so. What has been done since the Ignasiak opinion to look into this issue?

5. Does the DOJ Really Believe that Brady/Giglio Material Known Only to a Federal Prosecutor in South Dakota is not Brady/Giglio Material in any Other Federal District? What duty does DOJ impose upon its federal prosecutors to tell prosecutors in other federal districts about Brady/Giglio problems with testifying agents and expert witnesses? If there is no policy in this area, why not?

6. How Could This Happen? More to the point, how could this happen post-Stevens?  The government filed its Notice in Ignasiak six months after DOJ moved to dismiss the Stevens Indictment with prejudice and six months after Judge Emmet Sullivan ordered his own investigation of Brady/Giglio violations. Apparently AG Holder’s message fell on some deaf ears. And I guess the N.D. Florida never thought to re-examine its position, after the DOJ issued, to much fanfare, the Ogden Memo in early 2010. Even now, after the 11th Circuit’s pointed comments, the government has not voluntarily moved to unseal the Notice, or the motions and responses from the New Trial Motion, in the Ignasiak case. Why not?

It is extremely difficult for me to believe that either AG Eric Holder or Assistant AG Lanny Breuer knew about the Arthur Jordan issue prior to last month’s Ignasiak opinion. And therein lies the problem. Even an Attorney General and Criminal Division Chief publicly committed to rooting out Brady/Giglio abuses could not prevent the Arthur Jordan debacle.

What is the real lesson here? That prosecutors can’t be trusted to make their own judgments about what is or is not exculpatory and material under Brady/Giglio. Disclosure must be the norm.

DOJ has done everything in its power to prevent meaningful statutory reform of Fed.R.Crim.App.16 and federal criminal discovery procedures. DOJ says that it can be trusted to prevent Brady/Giglio violations from occurring. The Ted Stevens prosecution is Exhibit 1 in the argument against DOJ. Now we have Exhibit 2. His name is Dr. Arthur Jordan.

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I just read on the web two good examples of why Scalia’s reasoning doesn’t work in the practical world. I have copied and pasted them below. It goes without saying that lawyers, and especially trial lawyers, are fallible human beings and their clients should have relief, when through incompetence or worse, their lawyer fatally screws up. And how about Maples? Sitting in a concrete tomb deep inside a maximum security prison without any chance to oversee his lawyer’s work? Can we hold him responsible because a mix-up in his lawyer’s mailroom caused his notice of appeal not to be filed?

“A California lawyer has been criminally charged after allegedly appearing at court to represent clients at hearings in a drunken state. Michelle Winspur is accusing of blowing twice the legal limit on Oct. 7, 2011 when she was given a breath-alcohol test as she entered Kings County Superior Court in Hanford. She was tested because a court clerk said she sounded drunk when she called to say she was going to be late for trial. Winspur, now 45, also failed a sobriety test she was given on Dec. 8, 2011 as she left court after a client hearing. Already facing an attorney discipline case for allegedly being drunk during a 2010 trial in Monterrey County, Winspur had her law license suspended earlier this month. A defense lawyer pleaded not guilty on her behalf to the criminal charges last week, but Winspur herself did not appear because she apparently is in rehab.”

“A Florida lawyer was charged over the weekend with driving under the influence. It’s the third time Karen Miller has faced a DUI charge. Meanwhile, questions were raised by the prosecutor and the judge, according to a trial transcript, about whether she had been drinking during a client’s second-degree murder trial earlier this year. The judge declared a recess for approximately half a day, at one point, to allow Miller time to recover and return to court the following day ‘in the right frame of mind,’ the station reports. WINK says it reviewed personnel records of Miller’s work in former years, when she was an assistant public defender, and discovered the incident earlier this year is not the first time suspected alcohol consumption has interfered with her trial work. In 2009, a judge declared a mistrial because she failed to show up in court to represent her client, the article says. A workplace investigation determined that co-workers had found her ‘apparently passed out sitting at her desk . . . incoherent, slurring her words beyond comprehension . . . saying ‘I’m not that drunk.’”

My partner Howard came rushing into my office: “Did you read the Scalia dissent?” I confessed I had no earthly idea what he was referring to so he threw it down on my desk, finger jabbing at the last line, “Read this.”

“Because a faithful application of those precedents leads to the conclusion that Maples has not demonstrated cause to excuse his procedural default; and because the reasoning by which the Court justifies the opposite conclusion invites future evisceration of the principle that defendants are responsible for the mistakes of their attorneys; I respectfully dissent.”

Howard: “Imagine if the public actually read Supreme Court decisions and realized they are responsible for their attorneys bumbling. They would be scaling the walls of the Palace of Versailles.” With this introduction I pulled up the opinion of Maples v. Thomas to read it myself. It reads like an Edgar Allan Poe horror story.

Accused of a double murder in 1997, Maples was represented at trial by two court-appointed lawyers, only one of whom had experience in capital cases. Maples was convicted and sentenced to death. Alabama, “nearly alone among the states,” does not provide post-conviction legal representation for indigent defendants. Instead, it depends on volunteers, often by large out-of-state law firms.

In Maples’ case, Sullivan & Cromwell associates Jaasi Munanka and Clara Ingen-Housz took on his appeal, which, among other claims, raised ineffective assistance of counsel at trial. In 2002, both of them left the firm for positions which no longer allowed them to represent Maples – Munanka clerked for a federal judge, and Ingen-Housz went to the European Commission.

Unfortunately, neither lawyer informed Maples they were leaving, nor sought permission to withdraw from his case by the Alabama courts. The firm equally did not notify the Alabama court of any substitutions. So when the trial court denied Maples relief, notice to the lawyers was sent to Sullivan, and the firm’s mailroom returned the envelopes unopened.

This series of mishaps caused the time to file a notice of appeal to lapse and Maples lost the right to contest his death sentence in the appellate courts. He became eligible for immediate execution.

“Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se,” wrote Justice Ginsburg. “In these circumstances, no just system would lay the default at Maples’ death-cell door.” This was not a case of  “a man who represents himself has a fool for a client,” but a poor schlub who thought he did have one.

In his concurrence, Justice Samuel Alito, Jr. described Sullivan & Cromwell as “one of the country’s most prestigious and expensive” law firms, and said what befell Maples was “a veritable perfect storm of misfortune.”

In the end it seems a just result for Mr. Maples. Most would agree that a man should not be executed because of his lawyer’s negligence. But what about Justice Scalia? He seems quite peeved that Maples got another bite at the apple because giving him relief would open the veritable floodgates to indigent defendants represented by sleeping, or alcoholic, or drug-addled lawyers.

This is nothing new for Scalia, and it isn’t even among his greatest hits. Take Troy Davis and his claim that he was “actually innocent.” “This court,” Scalia pointed out, “has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a court that he is ‘actually’ innocent.” A very comforting thought.

But as we lawyers know, courts are reluctant to excuse procedural defaults. Enforcing the rules regarding timely filing and the proper raising and development of claims is necessary to keep the courts running smoothly. But in cases like Cory Maples, the default cannot be attributed to, or held against, the client. The only default would be a moral one if we denied him his basic rights.

When the rules become more important than the reason why we have rules, then we have lost our way. The end result is not that Cory Maples gets off death row, but rather he gets back his right to appeal.

Our system of justice will not crumble because of that.

Big win for Roy Black in the 11th Circuit

The case is USA v. Ignasiak, and the 11th Circuit per Judge Martin vacates the convictions of this doctor in a pill mill prosecution:

After carefully reviewing the record and having the benefit of oral argument, we reverse Ignasiak’s convictions because the admission of autopsy reports and testimony about those reports, without live in-court testimony from the medical examiners who actually performed the autopsies (and where no evidence was presented to show that the coroners who performed the autopsies were unavailable and the accused had a prior opportunity to cross examine that witness), violated the Confrontation Clause under the facts of this case. Because we conclude that the fourth issue is dispositive, we decline to address the other issues raised in Ignasiak’s merits appeal, except for the sufficiency 2 of the evidence claim.3 While we ultimately conclude that the evidence was sufficient, the degree to which we view the government’s case as less than overwhelming compels our conclusion that the Confrontation Clause violation was not harmless in this case. To give our harmful error determination sufficient context, it is necessary to describe the evidence in some detail.

The Court also has a very interesting discussion of the government’s expert witness at pgs. 43-48 in which the government claims that it was not Brady material that its expert had previously committed federal crimes and that the information should remain under seal:

The Notice revealed for the first time that Dr. Jordan engaged in criminal conduct beginning at an unspecified time up to and continuing until 2006. Specifically, Dr. Jordan had, on nine separate occasions, used a counterfeit badge and his United States Marshal credentials to pose as an on-duty U.S. Marshal in order to carry firearms on commercial airplanes while on personal travel. On the ninth flight, a Transportation and Security Administration (“TSA”) agent discovered Dr. Jordan’s ploy, and seized the weapons, counterfeit badge, and Marshal Service credentials. The South Dakota U.S. Attorney’s Office opened an investigation of Dr. Jordan. Although Dr. Jordan had engaged in similar criminal conduct at least eight times before, thereby committing multiple violations of 18 U.S.C. §§ 912 and 1001 and 49 U.S.C. § 46505, the South Dakota U.S. Attorney allowed Dr. Jordan to enter into a “pre-trial diversion agreement” in which Dr. Jordan paid $2,000 and agreed not to carry any concealed weapons except while on official business.

The government filed this information under seal and asked for it not to be made public because of the expert’s right to privacy.  I kid you not:

Thus, while it is true that Dr. Jordan’s privacy interests sit on one side of the balance, it is “the interest of the public in accessing the information” that rests on the other. Id. And, in this case, the public has a great interest in learning the contents of the Notice—namely, learning the highly material fact that Dr. Jordan, a repeat government expert witness, abused his government authority and committed acts which could have been charged as felonies. To say that the defense would have preferred to use this information to discredit Dr. Jordan’s testimony is almost certainly an understatement. Perhaps ironically, by arguing that there was no Brady violation in this case because the AUSA prosecuting Ignasiak was unaware of Dr. Jordan’s history, it is actually the government that most persuasively highlights the value in unsealing the Notice. Indeed, should the Notice remain sealed, the significant likelihood is that in the next CSA prosecution in which Dr. Jordan testifies as an expert, both the prosecuting AUSA and the defense counsel will again be unaware of the highly relevant impeachment evidence contained in the Notice. And in that case, as in this one, should the truth ever come to light, the government could again point to its own ignorance and claim immunity from Brady error. Stated this way, we would have expected the government to condemn, rather than condone, such a problematic outcome. But instead the government asserts that Dr. Jordan’s privacy interest outweighs the public’s right to know the extent of Dr. Jordan’s involvement with the government. To be sure, in some cases a party may overcome the presumption of openness if it can show “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510, 104 S. Ct. 819, 824 (1984). Indeed, the government correctly points to two categories of witnesses whose privacy interests are understandably paramount: victims in sex crime cases and criminal informants. Dr. Jordan is neither. Rather, he is an expert witness who, at a rate of $300/hour, voluntarily accepted employment which required him to testify against Ignasiak. Indeed, Dr. Jordan testified that he has been paid “around” $30,000 for his service as the government’s expert in this and other cases. While the fact of his paid status does not make him amenable to any sort of unfair or immaterial character attack, it does greatly reduce, if not altogether eviscerate, his expectation to keep impeachment evidence private. The government is thus right that courts should protect witnesses like Dr. Jordan from “unwarranted invasion” into their privacy. But we cannot agree that impeachment evidence concerning a highly compensated and voluntarily appearing expert witness is either “unwarranted” or an “invasion” into that witness’s privacy.

Congrats to Roy Black, Richard Strafer, Jackie Perczek and the whole team over there for this great win.

http://sdfla.blogspot.com/2012/01/big-win-for-roy-black-in-11th-circuit.html

To see the opinion, click here.

Both Schultz and Curley have testified that McQueary failed to impress upon them the seriousness of what he saw. Their testimony at the grand jury seems quite consistent with what Paterno now says that McQueary told him.

So the strategy issue is how do the defense lawyers for Schultz and Curley use this evidence? At first impression, I would cross examine McQueary and then use Paterno as a rebuttal witness. At the very least you want to leave the impression that after nine years no one can accurately relate a conversation. If the jury believes that, then there is reasonable doubt. There is no need to do an all-out attack on McQueary’s credibility fearing a possible backlash from the jury. Needless to say, this will be a game-time decision and the lawyers better be ready for any eventuality. Trials and witnesses are unpredictable.

While doing a little research on this, I came across an article, “Fallacies in Memory for Conversations: Reflections on Clarence Thomas, Anita Hill, and the Like,” 7 Applied Cognitive Psychology 299 (1993). This article reported a research project on how well or how poorly we remember the exact wording of conversations. They specifically were studying sexually charged conversations, especially well known ones like Anita Hill claiming Clarence Thomas made inappropriate sexual comments to her. I am sure you remember the infamous Long Dong Silver.

They discovered that slippages in memory for conversations is to be expected and exact memory for actual words is quite poor. They found that while subjects could remember the gist of the conversation, they had poor verbatim memory. They questioned based on these findings whether Anita Hill accurately remembered the ten-year-old conversation with Thomas.

They referred to an earlier study done on conversation memory in “Neisser, John Dean’s Memory: A Case Study,” 9 Cognition 1 (1987). John Dean, who was Nixon’s White House Counsel, testified to the exact wording of Nixon’s statements to him at the Watergate hearings. The press dubbed him the “human tape recorder” because of his so-called extraordinary memory for the actual words. I recall how much fervor his testimony stirred up among the anti-war protest groups. Later when the White House tapes were uncovered and examined it turned out few of the conversations matched his testimony. What better evidence than that about the frailty of human memory for verbatim recall of conversations. Perhaps Schultz and Curley can develop expert testimony on this issue.

While all these scientific findings are not surprising, I bet the jury will be impressed with McQueary’s recall. The description of the shower scene is so sexually charged that it will make a big impression on the jury and outrage them. They will want to believe it. They will be thinking about their children being in that shower. The defense lawyers have to defuse these emotions or lose the case.

Right after I wrote the first coaching piece I came across this cartoon by Hugh MacLeod at his wonderful website gapingvoid.com. “You can’t read the label of the jar you’re in” tells us you can’t see yourself from the inside. You need an independent opinion from someone looking at you to tell you how others see you. You are not objective about your subjective world.

When Gerry Spence first opened his Trial Lawyers College at his ranch in Wyoming, I went a few times to help out. One exercise he engineered had everyone sitting in a circle and telling the person to their right five things they liked about them and five they hated. It was eye-opening, but not for the faint of heart. Want to know what others think of you? Try it.

If you ever go to a major league baseball stadium you will see the teams taking batting practice. They always have their batting coach studying player’s mechanics even though these are world-class athletes who have been swinging a bat all their lives. The coach is a type of correctional device.

Trial lawyers also need help to make adjustments in their swing.

While Jeff is making the point that Rothstein could be a star witness for any upcoming prosecution,s the unintended point is whether the justice system should allow it. Con artists like Rothstein are great witnesses to make an accusation because they are unconstrained by the oath and any sense of conscience. The Rothsteins of the world see their “cooperation” as just an extension of their fraudulent scheme. They sell questionable testimony for a reduced sentence.

This is a flammable mixture. Deals like this are generally tolerated by the excuse that cross-examination combined with cautionary jury instructions is enough to counterbalance the threat of perjury. In Hoffa v. United States, 385 U.S. 293, 311 (1966), the Supreme Court decided that hefty cooperation deals didn’t violate due process because the defendant had the safeguard of cross-examination. While I am a big believer in the efficacy of cross, it can’t solve this problem.

The most difficult lies to expose are not the blatant ones, but rather the half-truths which are usually the biggest lies. The cooperator can truthfully testify to his own crimes and then just prevaricate by adding someone as his co-conspirator. Rothstein has a long list of law partners, bankers and strippers to select from. Usually there is no method to independently prove or disprove this type of testimony. There is no DNA to expose a wrongful conviction.

Adding to this problem is that the defense usually has no access to interview the cooperator because he is jealously guarded by the government. (One of the few exceptions is the Rothstein monster deposition.) This one-sided access combined with government “over interviewing” the cooperator is a dangerous mix. The so-called “interviews” are usually prep sessions how to evade cross-examination.

Stephen Trott, a former high ranking DOJ official and presently Senior Circuit Judge on the Ninth Circuit, warned prosecutors: “Criminals are likely to say and do almost anything to get what they want, especially when what they want is to get out of trouble with the law.  This willingness to do anything includes not only truthfully spilling the beans on friends and relatives, but also lying, committing perjury, manufacturing evidence, soliciting others to corroborate their lies with more lies, and double-crossing anyone with whom they come into contact, including– and especially–the prosecutor. A drug addict can sell out his mother to get a deal, and burglars, robbers, murderers and thieves are not far behind. Criminals are remarkably manipulative and skillfully devious. Many are outright conscienceless sociopaths to whom “truth” is a wholly meaningless concept. To some, “conning” people is a way of life. Others are just basically unstable people. A “reliable informer” one day may turn into a consummate prevaricator the next.”

Our system of justice is deeply committed to using and rewarding cooperators. This will not change. Those who run the system see it as the lesser of two evils, but isn’t the choice between two evils still evil? Unfortunately the day will come when we can’t tell the difference between what is necessary and what is merely expedient.