May 25, 2011 Bail


Monopoly Get Out of Jail Free Card


“How glorious to be an American citizen. In so many countries, the rights of citizens are not worth the paper they are printed on. But here, any citizen—good, bad, indifferent, famous, infamous, or obscure—may call upon the courts to vindicate his constitutional rights and expect that call to be honored.”

These are the opening lines of an opinion by Judge Jed Rakoff granting bail to Marc Dreier, a lawyer indicted in a notorious theft case. Beautiful words reflecting an ideal that is many times more ephemeral than reality.

In fact, prosecutors manipulate the bail process in several nefarious ways to undermine the defendant’s rights. Usually they want a defendant locked up pre-trial because it gives them more leverage. He can’t work with his lawyer, can’t help in the investigation, can’t read the case files, can’t see the evidence against him, can’t have unmonitored conversations, and rightly feels he has no participation in his defense. This causes serious problems between the lawyer and the client. Not only that, but waiting for months in miserable jail conditions causes mental damage, especially depression, caused by separation from family, being locked in a cell all day with only limited exercise, and ugly abuse by the guards. Not surprisingly this misery many times causes him to plead guilty just to get it over with.

Dominque Strauss-Kahn has been granted bail after litigating for over a week. We know the importance of bail, but the ability to get it keeps getting more onerous. The government has found a new strategy. Keep the defense tied up in the red tape of bail applications and hearings so they don’t have time to work the defense. The prosecutors pile on phony objections claiming the defendant is a flight risk or a danger to society. These claims make the defense jump through unnecessary and time consuming hoops. They demand more and more paperwork. They fill up precious time with inane demands and hearings. In a case like DSK’s the defense has to be aggressive. The bail runaround causes the loss of momentum and diverts them from aggressively investigating the case. DSK requires immediate action.

How? In DSK the only possible defense is consent. I know many are jumping on the prosecution band wagon screaming his guilt. Not so fast. The prosecution scenario is bizarre. A 62-year-old economist, head of the IMF, leading candidate for the presidency of France, hides in a bathroom waiting for the maid to enter his suite and without so much as sizing her up, jumps like Tarzan out of the bathroom, naked, and drags her into the bedroom where he sexually assaults her. During this so-called sexual assault, he twice pushes his penis into her mouth. Rapists usually don’t put their vulnerable member in a cavity chocked full of teeth. Sorry but this is not a sellable story.

In addition look at the timeline. He checked out of the hotel at 12:28 pm, but 911 wasn’t called until 1:32pm. DSK went to lunch with his daughter, then on the Kennedy to catch his scheduled flight back to France. At about 3:30 pm he called the Sofitel Hotel to see if the housekeeping staff found a cell phone he left behind. He tells them he is at Kennedy waiting for his flight. Hardly the actions of a man running from a rape, especially of a maid working in the same housekeeping department.

And then this according to The New York Times: “Starting early Friday morning, Mr. Strauss-Kahn’s legal team was locked in tense negotiations with prosecutors over the terms of his release. Benjamin Brafman, a lawyer for Mr. Strauss-Kahn who was in Israel attending to family matters, monitored the situation with his BlackBerry.” Mr. Brafman, via e-mail, described it as a “long, tense day for all concerned.” That must give great comfort to DSK. Not only is his chief counsel out of the country but the other lawyer on the case is tied up in bail negotiations all day and night.

A law firm that specializes in difficult and complex cases has to have the flexibility to add bodies to a problem. In these types of cases it is not unusual to be in multi-forums and doing several distinct jobs at the same time. I learned this lesson from law enforcement. The FBI is not the brilliant band of investigators their PR department claims, but they are successful because they can overwhelmingly staff any situation. When the Alfred P. Murrah Federal Building in downtown Oklahoma City was bombed on April 19, 1995, the agency had 300 special agents on the ground within hours and as the investigation progressed, amassed a task force of 900 federal, state and local law enforcement officers. This massive effort allowed them to follow every lead no matter how obscure and led to the arrests of Timothy McVeigh and Terry Nichols. The FBI conducted 28,000 interviews, amassed 3.2 tons of evidence, and gathered one billion pieces of information. While no private law firm can duplicate that effort, it proves the importance of assembling a team to work a case.

At BSK&S we take a team approach assigning team members to various phases of the case. And if we undertake a case like this, it has to take precedence over personal plans. No one wants to give up a vacation or family time, but when timing is critical, there is no choice. There is an enormous amount of work to do if we expect to succeed. For example in DSK’s case, the hotel room is critical. When it is a “he said, she said,” case the smallest edge can be critical. Jurors will latch on to the smallest point to see which person to believe. I want to give them that.

I want the hotel room to be torn apart inch by inch once the cops have vacated it. In some cases I have rented the same room for days and even weeks, and have done the same with apartments and houses. The police many times do a sloppy job at the crime scene. They leave behind critical pieces of evidence or deliberately ignore evidence favorable to the accused. I wrote about a good example of this in the Hicks chapter in my book Black’s Law. We found a large cachet of evidence left by the Plantation Police Department which greatly assisted in his ultimate acquittal.

I also want a doctor or nurse to do a full body scan of the client’s body and photograph every square inch. No doubt the prosecution will have found some evidence on his person to use at the trial. I want rebuttal. They have a big edge here because they have access to the accuser and I don’t. But I can work with the client, so I want to take advantage of it.

There is cable show called The First 48. The premise of the show is that for homicide detectives, the clock starts ticking the moment they are called. Their chance of solving a case is cut in half if they don’t get a lead in the first 48 hours, and with each passing hour witnesses have more time to forget what they saw, and crucial evidence has more time to be lost forever. The same applies to the defense investigation. The clock is ticking. There is no time to waste.

The investigation has many other threads to start. I want to put someone into the apartment building where the woman lives. Just to be an ear and listen to what she and others are saying. When accusers are unaware people are listening they are much more likely to tell the unvarnished truth rather than the prepared testimony we see in a courtroom. I also want to find out how she got to Shapiro, a high-powered New York personal injury lawyer. Is there any doubt that will lead to an impressive civil suit for very high damages?