Interview with a Securities Attorney

We turn the site back to Colin Maguire today. He is the Publicity Editor for the Thomas M. Cooley Law Review and soon to be law school graduate. Contact him at maguirec@cooley.edu.

Colin's latest piece is an interesting interview that gives insight into where a law degree can take you. It's not just criminal law and personal injury cases. It is also sheds light on the financial meltdown and how to avoid another one. I'll let Colin explain:


What do we really know about the world of securities and commodities
trading? Given the events of our still young millennium, we probably
wish we knew more about what was actually happening. Yet, we might
wish we knew less about the sometimes unsavory aspects of the industry
itself.

The Thomas M. Cooley Law Review's Colin W. Maguire sat down with Mr.
Joseph H. Spiegel to discuss legal issues in the investment industry.
Mr. Spiegel has represented those on the inside of the industry,
befriended important players in government regulation positions, and
now advocates for victims of investment fraud. With his wealth of
knowledge, he shares compelling stories, insightful suggestions for
legal reforms, and urges us to help fight investment fraud by knowing
the signs.

Please check out the full interview here.

More from Colin?

Stand Your Ground
The Claim Against Arson Forensics

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The Effect of a Verdict

It was a surprisingly crowded courtroom for a gun case. The defense attorney and I had finished our non-jury trial a few days prior and had returned for the judge to issue his decision. About 20 people filled the audience to watch the defendant, their friend and family member, face judgment. The judge read the guilty verdict.

The courtroom erupted. Yells cut the air. The audience pushed the wooden chairs causing them to rock like Weebles. The rest grabbed jackets and stormed out of the courtroom. I waited for the demonstration to end and the spectators to clear before leaving with the intern who had helped me with some legal issues in the case.

The intern asked, "Do you feel bad? For the family?"

In this case, my answer was no. The defendant had a lengthy criminal history and was a known violent gang member. I truly believe that we saved lives with this conviction.

But the conversation spread into other cases. Did I ever feel sympathy for the defendant or family? Or think jail was not the appropriate outcome? Many times I felt bad, but it depended on the case.

I'm not the type of prosecutor who measures success by the sentence a defendant receives. A jail term is punishment for an act that a victim or family will never forget. Sentencing a person to spend the rest of their life in jail will never bring the murder victim back to life. It surprised me how little closure I felt in most murder cases.

In my first major trial, a 50 year old defendant with no criminal history got drunk and decided to play a prank on his friend. The friend drove a 14 foot box style delivery truck, which was parked on the decline of a steep hill. The defendant climbed into the cab, intending to move the truck to a different spot as a prank. He lost control of the truck, which careened out of control and killed a 4 year old boy and seriously injured his mother.

I'll never forget the defendant's family lying prostrate on the ground, screaming at the guilty verdict. They cried so hard, the mucous was running from their nose. I thought I'd feel a sense of victory at winning that case, but it turned out to be one of the most difficult experiences I had.

It was the same way with my first murder case. A 16 year old was accused of shooting the victim 8 times. Violence had married two families who had never known each other before. In a murder case, two lives are gone forever, but many more are forever affected. The victory and life sentence did not bring warm feelings of success. It seemed irreverent to celebrate.

That's not to say there are not satisfying verdicts and sentences. The defendants who dragged a female pizza delivery driver into an abandoned house and robbed her by smashing her head with a two-by-four. The defendants who robbed six stores by tying up the clerks at gun point. The defendant who stabbed an unarmed kid 9 times causing his death and claimed it was self-defense. Those and many more brought a sense of closure and success.

I'm not sure what the criteria is for a satisfying verdict. I will probably never be able to answer that. The only thing I can answer is that, clearly, all of these cases stay with me. 

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Oscar Pistorious Should Focus on the Marathon

A criminal case is a lot like a war. The trial is the final battle that most people see and read about. Along the way, there are smaller battles fought by opposing sides employing a large amount of strategy.

As we continue to follow the case of Oscar Pistorius from South Africa, the bail hearing outlines the first such skirmish.

In New York State, the bail hearing is usually an informal proceeding where the lawyers argue over whether the defendant is a flight risk. The attorney for the people uses Criminal Procedure Law Section 510.30 to argue the following factors in favor of bail:

1) the defendant's character, reputation, habits, and mental condition,
2) the defendant's employment and finances,
3) family ties,
4) criminal record,
5) prior warrants,
6) weight of the evidence against the accused, and
7) the possible sentence.

The defense then argues the reasons why the defendant is not a flight risk using these same factors. The entire process takes less than five minutes.

And that is why the bail hearing against Oscar Pistorius is fascinating. It has stretched on for days and both sides have presented a significant amount of evidence. The first few steps in the criminal proceedings are akin to a prosecution offensive. The police decide when to make an arrest and on what charges, the prosecution lays out only the evidence they want to, and the prosecution controls the secret grand jury proceeding. The defense strategy is usually to weather this storm and gain as much information and pre-indictment discovery as possible, without giving too much of their defense away.

Within the first few hours of Pistorius' first court appearance, the defense had relayed their client's statement and entire defense. Now the prosecution can spend their time destroying his statement and proving it false. Defense attorneys and their clients must always balance the short-term goal versus the long-term ones. No one wants to stay locked up, but sometimes remaining in custody might help you win the case. It's difficult to explain to a client that remaining in jail is good for them in the long-run as it might help win their case. If Pistorius wins his freedom at the bail hearing, he'll win an early battle, but is it worth losing the war for his life?

That being said, South African law is certainly different than New York State and I expect to have a post up relating to those differences at some point.

More like this:

Bail and Bonds

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Pistorius

Any avid readers will remember this post about the Olympics this summer. One of the most amazing stories was Oscar Pistorius, the Olympic sprinter using artificial limbs to compete.

His story was amazing, the obstacles he had overcome were incredible, and the inspiration he provided was unforgettable. Pistorius could do anything he wanted in life.

But today he stands accused of murdering his model girlfriend, Reeva Steenkamp, on Valentine's Day. I try not to comment on pending cases before any final outcome is settled, except to explain the legal or courtroom procedure or use the story to illustrate a point. I'll continue that precedent here because the details emerging from South Africa slowly trickle in and it is too soon to rush to any sort of judgment.

I try not to place athletes climb too high up on any pedestal. They are merely humans and lately it seems that most are prone to disappointing when anyone begins to expect perfection. Pistorius seemed like a story that would transcend sports and life. A story about a child born with a disability that some would use as an excuse and he transformed it into inspiration. I'll be following this story closely and hope to provide some insight and explanation into any of the legal proceedings.

It's shocking how quickly life an change in six months.

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A Valentine's Day Court Story

We finished a non-jury trial yesterday, Valentine's Day. The defendant was on parole for weapons possession and is alleged to have possessed another illegal gun in his house.

We must prove that he "constructively possessed" the gun.  There are two kinds of possession - physical and constructive.  Physical is when you have the weapon on you and constructive is when you have control over the weapon or the area, but it is not on your person.

Since there were only two adults in the house, we were forced to bring in the other adult to say it was not her gun.  So, on Valentine's Day, the girlfriend testified against her boyfriend.  How did you spend your Valentine's Day?

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Is It Ever Personal?

No. Yes. Sometimes.

I'm in a position that sees people commit unimaginable and grievous injuries to other humans. A detachment exists that allows us to see photographs of gruesome injuries and allow police, prosecutors, defense attorneys, and judges to work through a case without taking it home.

Most cases land in my office and travel to the closed pile without any special attachment to the victim or anger towards the defendant. I can treat them like any other case. There are some cases, some moments, some photos, some scenes that will always stick with us though.

Take my first murder trial for example. The black defendant was accused of shooting the white victim eight times in front of the victim's girlfriend. The trial was moved to the basement courtroom, which was the biggest in the building, to allow the massive amount of spectators to watch the trial. The victim was a beloved, albeit flawed, member of the community. The spectator gallery was filled, split right down the middle by race, each supporting a side.

The girlfriend took the stand, in the most anticipated testimony of the trial. She was combustible, ready to explode at a moment's notice. No matter the amount of preparation, no one could control her. She was the type of witness every attorney fears putting on the stand.

She took the stand and answered questions, erupting in tears immediately. She described the decimation of her loss and what it did to her life. Then, when asked to identify the killer, she pointed at the defendant and yelled. She asked him, "How could you do this to me? And you just sit there? You took everything from me." She stared at him, wiping tears from her eyes. The courtroom went silent, except for her cries. No one moved in the gallery. No pens shuffled against paper. The only sound was yelling and crying from the witness stand. A few jurors cried and the judge later admitted that he had to turn away to wipe away tears.

It is moments that usually stick with you, not the case.

But sometimes the defendant, either through the facts of the case or through his actions while it is going on, becomes a nuisance. The longer a defendant's file is with me, the more personal a case can become. Familiarity breeds contempt. By the end of a trial, you can become so invested in the case and certain of  guilt that you do make it personal. You have spent over a year investigating this case and then taken weeks away from your loved ones in order to do your job and show the jury he is guilty. Defendants who commit many violent crimes against innocent victims raise the ire and increase our desire to succeed. It is rare, but there are times I have to remind myself that the case should be treated like any other.

The defendant who obstructs every moment in court by attempting to fire his attorney, spew expletives at the judge, and assault guards are always difficult to remain objective with. The defendant who lies to my face while trying to work out a better deal and cooperate usually gets a special place in my caseload. No matter how hard I try, there are some cases that become personal. It can make you a better attorney, a more zealous advocate. But it can also make you blind and biased in a case. That is why we have to keep a distance and not let any victim or defendant get too close. Prosecutors are supposed to be objective and strive for impartial justice.

It's not always easy. We're humans too.

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3D Guns

People are incredibly intelligent and that means we are also incredibly scary.  Check out more details of these guns here and here.  For as long as there have been guns, there have been manufacturers who take ordinary objects and transform them into guns.  Tear gas from a pen anyone?

The world is a dangerous place and undetectable guns and disguised guns are just another example of our ingenuity and that danger we possess.  It's the same with drugs.  Who would ever have thought we'd have to worry about people ingesting bath salts to get high?  Or mixing chemicals in their basement to create the next ecstasy?

Another video to demonstrate the technology works?

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Day in the Life of an ADA - Random Tuesday

There are so many fantastic stories that fall on my doorstep every single day.  Defendants, witnesses, police officer shenanigans, courtroom tales, and inter-office pranks.  The shame is that I cannot share most of them because I have to protect the investigations, witnesses, and have an ethical duty not to discuss pending cases.

Guess you'll just have to wait for the book.  (Hmmmm.  Idea!)

But I thought yesterday would be a great example of the much-heralded (I herald it at least) 'Day in the Life' series.

I arrived at work at 8:15 a.m.  Ten messages were already awaiting on my voicemail.  This was an unusual number unless I was returning from vacation, which I was not.  I immediately realized the day would be filled with uncertainty.

Officers started appearing at 9 a.m. for a scheduled grand jury presentation.  None ever arrive at the same time as each other or any civilian witnesses.  That's a problem because it is difficult to present a case to the grand jury if you are unsure any of your witnesses will show up.

It's a short day in the grand jury, so I was done by 10:40, which means I am ten minutes late for my 10:30 meeting.

Somehow eight officers, an attorney, and his client all arrived on time for my 10:30 meeting.  The client spent an hour waffling on whether to participate in the meeting.  When he finally does, the meeting lasted until 1:40.  My cell phone would not stop ringing during the meeting.  I had to keep excusing myself to guide an officer through a specialized juvenile arrest.

That meant a quick bite of my sandwich as I waited for my 2:00 appointment, who showed up at 2:30.  That break gave me some time to return the prior ten voicemails and the eleven more that had piled up since.

My 2:00/2:30 appointment didn't leave until 3:30, and I was lucky my 3:00 cancelled.  I settled in to do some work for an hour and a half before I had to leave.  However, one of my long-term investigations broke open involving many men with many illegal guns.  It is both a stroke of luck and another wrench in an a typically abnormal day.  I spent the rest of the day on the phone organizing the prosecution of the case over the next week.

There were only a few minutes left before I had to leave at 5:00, so I spent them returning phone calls.  The best part about the day?  A defense attorney called postponing our trial that was scheduled to start the next day due to his flu.  No, I'm not cheering the illness, just the postponement.  It was a chance to  get some pressing work done tomorrow.

This job's history guarantees that probably won't happen.  An emergency always comes up.

More Like This:

Day in the Life of an ADA
Night in the Life of an ADA
Life of an ADA - NYC edition - Part 1, Part 2, Part 3

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Mark Hasse

Assistant District Attorney Mark Hasse was shot and killed walking into work in Kaufman County, Texas on Thursday in what is being described as an ambush.  The investigation is on-going.

There is a sad reality that all prosecutors who deal in violent crime push away most days.  We are just as vulnerable as any victim.  There is not much more to say than to ask for prayers for Mark Hasse and his family in this devastating time.

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