Balkinization: Lawyers in Prison

Lawyers in Prison

Jason Mazzone

Some years ago, I found myself seated at a dinner event next to a trial judge, and I asked her what was the most challenging part of her work. She said sentencing convicted defendants to prison terms: however horrendous the crime, she said, it always saddened her to lock somebody up. But then she added that she found the task easier in the case of white-collar criminals. She explained to me that because those defendants typically have used their educational and employment advantages not for productive purposes but to break the law, she had little trouble sending them away for their crimes. Indeed, she said, her general approach was to sentence white collar criminals to longer rather than shorter periods of incarceration.

Perhaps the approach makes even more sense when it comes to lawyers who commit crimes. Consider, then, the extraordinary decision last night by the U.S. Court of Appeals for the Second Circuit in the case of two New York City lawyers accused of Molotov cocktail attacks during a recent protest in Brooklyn against police misconduct.

The district court had released the two lawyer-defendants on bail and under home confinement. The circuit court last night granted the government’s emergency application to stay that order (an appeal is pending) and so the two are now incarcerated.

The incident raises at least two issues.

First, while innocence is of course presumed, one wonders what possible sequence of events could lead two lawyers, one (the images show) bearing a kafeeya, to decide the way to get a message across is to engage in terroristic violence. One of the lawyers is a graduate of NYU, the other a graduate of Fordham. Those institutions obviously don’t train their students to make and throw firebombs. And yet for all of the lawyerly skill the law schools imparted, it was not a sufficient counterweight to violent extremism.

Incredibly, there is a recorded interview with one of the two lawyers (the Fordham graduate) the very same evening of her arrest. In one sense, she sounds quite, well, lawyerly: confident, articulate, with a point to be made. But the message is chilling for its substance (“This has got to stop. And the only way they hear, the only way they hear us is through violence”) and even more so for the absolute unflinching certainty with which it is delivered.

Therein, I think, lies the problem. Somewhere along the line this individual evidently became convinced that she was right and her rightness made everything else—law included—irrelevant. Law schools should produce graduates with just the opposite inclination: lawyers should always be testing arguments, identifying nuances, and evaluating alternatives. I wonder how well our law schools are doing on that front.

A second observation goes to process. Courts around the country have been closed or have had their operations sharply curtailed. But the need for judging remains. Many proceedings now occur telephonically or online. The bond hearing for the two lawyers charged took place by videoconference. I looked at the transcript of that hearing (it is attached to the government’s brief before the Second Circuit if readers are interested) because I wanted to know if it contained additional details about the case.

Two things struck me. First, a whole series of well-off family members and friends (many of them other lawyers) stood ready to pledge security for the release of each defendant. Second, the conference call was far from smooth. Participants did not consistently mute themselves and so generated background noise. Questions from the judge frequently had to be repeated (as did the answers). The judge at times called on an individual speak but the person had been dropped from the session. Some of the individuals pledging assets had to call in multiple times to be connected.

It all basically worked out. But the transcript suggests we are a long way from a seamless shift from courtroom to Zoom room.

Posted 5:21 PM by Jason Mazzone [link]