ROY BLACK HAS PASSED AWAY

 He was the greatest criminal defense attorney of his generation. He became the criminal defense attorney that inspired the next generation of lawyers. He was surrounded by legend and an aura of invincibility. And he was ours- from Miami, defending Miami cases at the moment when cocaine would change the landscape of our city, our country, and our courthouses. When the cocaine cowboy cases hit Miami, he was ready. The man had met the moment. 

Roy came up through the Miami Public Defenders Office when Phil Hubbart was elected. He was part of a new group of PDs, along with Jack Denaro, HT Smith, and others, that would transform the sleepy REGJB. No longer content to plea out cases, they filed speedy trial demands and went to trial- forcing old judges (nearly all old, white men) to work past noon and try cases. The judges were in an uproar and yelled at Hubbart  to get his lawyers in line and play ball. Bennett backed his young guns.

There were a few things that stood out about Roy. The first was that he studied his craft. He ordered recordings on albums of great speakers so he could study their speech patterns. He found transcripts of great trials and studied them. Yes, he had skills that could not be taught, including a nearly photographic memory. But without the hard work, his talent would not have turned into courtroom brilliance. That was the first of many valuable lessons we learned from him. 

The second was the use of humor. Roy was well known as a brilliant cross-examiner. But he used humor as a subtle cudgel. When he got the jury laughing at the witness or the prosecutor, the case was over before they knew it. 

We could go on and on with the stories about him. Pulling off his shoes and taking off his socks in court- along with his PD partner Jack Denaro- and putting their socks on their in-custody client's hands to force the police to get a warrant to take their client's fingerprints. Genius. And more importantly, letting everyone know that things were different now, and PD clients would be zealously defended. 

He handled some of the biggest cases of his times, including his defense in the REGJB of Police Officer William Lozano. 

DOM broke the story on Miami Blogs this morning.  Go to his blog to listen to some of Roy's arguments he has posted.  

Roy Black was one of those lawyers, and one of those men, whose legend doesn't begin to tell the whole story about his greatness. Every time we saw him he had a smile on his face. (Look at the picture above. It's classic Roy. He always had a smile when he was in court, no matter how serious the case. He truly loved his work).  He enjoyed his life and his work. He was a friend and a colleague, and we are much better for having known him. Miami is better for his work, and the entire law profession is better because of the consummate professional and brilliant trial lawyer that he was. 

Rest In Peace Old friend. 

Long time and careful blog readers remember the post on the Lozano case he wrote for this blog. We will have it up later in the week. 

LEE BAILEY 2.0

 If you haven't done so already, click on over to DOM's blog and read Roy Black's guest post on F. Lee Bailey who passed away last week. 

Mr. Black's post and remembrances are valuable reading.  Lee Bailey along with Edward Bennet Williams (read the biography "The Man to See"), was the first generation of criminal defense attorney superstars (OK Abraham Lincoln, Thurgood Marshall, and others have a place in the early 18th and 19th centuries but Lee Bailey is the first famous criminal defense attorney in the last half of the 20th century). Roy Black came along in the 1970s. As Mr. Black writes, Lee Bailey burst on to the scene in the 1960s with his successful defense of Dr. Sam Sheppard - in his first year out of law school no less. The defense spawned a successful TV series (The Fugitive) and set Bailey on a course of high profiled defense cases, many successful, but none undertaken with anything less than a full fledged fight for his client. None of this "sign and flip" nonsense that so dominates our honourable profession these days, especially in Federal Court. As Mr. Markus is wont to say "You can't win a plea" which surely was in the DNA of Lee Bailey. 

Do not skip lightly over Mr. Black's recommendation to read the book about Lee Bailey's defense of Dr. Carl Coppolino "No Deadly Drug" which he rightly calls the best book on a criminal defense trial he has ever read - and we second that endorsement. We seem to recall a lecture on cross examination or experts  by Judge Milt Hirsch where he recounts Bailey's destruction of a defense expert in the Coppolino case in  two or three questions. Perhaps he will weigh in on that episode. 

And finally there is the insight, said before by Mr. Black- but worth repeating- on his education as one of the finest criminal defense attorneys of his generation. It was Mr. Black's reading and re-reading of the books on Lee Bailey's trials and Bailey's practice treatises that formed and honed his skills- at a time when reading books was the principal way we all educated ourselves. 

Like too  many in our profession, Mr. Bailey came to a sad ending with legal issues, incarceration and disbarment. But those are small postscripts to a career that inspired a generation of criminal defense attorneys to believe that ours is an honourable profession and one worth dedicating a life to. Lee Bailey taught us that there is no case that is not worth defending; no case that is unwinnable; and no client that does not deserve our best efforts. Bailey taught us to not just be in court- but to APPEAR in court. That standing up and saying "Rumpole on behalf of the defense and we are ready for trial" was a moment worth savoring with meaning. That as lawyers we didn't just say something at the beginning of the trial- we DELIVERED an opening statement, carefully planned. That there is nothing better than seeing in the eyes of a witness fear as we rise to cross examine them; that when they shake or hang their head and admit their testimony on direct was not correct and the defense version of the events is what really occurred,  or that the witness's version on direct is not believable, are moments that can be achieved by a well prepared criminal defense attorney. And that "NOT GUILTY" verdicts are not strikes of lightening, but are to be expected and achieved through fearless and dedicated work. 

Go read Mr. Markus's blog and Mr. Black's post and it will start you week off right- even if you wear black robes to work or are a prosecutor. 

THE LION ROARS IN WINTER

It was standing room only in the courtroom of  US district court judge(and former REGJB ASA and then state court judge) Bob Scola Tuesday morning as AUSA Elizabeth Young rose and addressed the jurors in USA v. Philip Esformes, who is charged with masterminding and orchestrating a billion dollar nursing home/medical fraud and bribery scheme. 
But it wasn't Ms. Young that dozens of courthouse denizens had packed the courtroom to see. It was to see the lion in winter roar once more. 

And so Roy Black, Esq., counsel for the defendant, walked to address the jury once more, exuding confidence, representing a client against a powerful opponent. 

There was a swagger in his gait, his trademark bonhomie tempered with scorn for the government's case, each word carefully chosen based on decades of experience as to how they would fall upon the ears of the jurors. Each gesture planned and  practiced, the cadence developed from a life time of studying the great orators of history, from General MacArthur to the great litigators of the last century like Lee Bailey and Edward Bennett Williams: "They have stacked their case with con artists, liars, fraudsters...(pause for effect) even drug dealers..." the eyebrow raised, the eyes searching the jurors for the impact of the words. 
This was the master plying his trade. da Vinci pausing before the blank canvas, art waiting to be created. The jurors and the facts, lumps of clay just waiting for the hands of Rodin to mold and sculpt to his will. 

Eight grueling weeks of trial remain on the horizon. Scores of allegations about bribes and false diagnoses, a rogues gallery of cooperating witnesses, and reams of spreadsheets with billings, and profits and losses compiled by a government on the hunt. A defense attorney with his famous "files system" in which each witness, each charge, each issue, gets its own file, into which facts which he will need in the weeks ahead have been carefully stored. No electronic wizardry here. Old school defense at its finest. 

Mr. Black is not alone in his defense. He leads a team of exceptionally talented lawyers, led by the master who humbly told the jury "we will try to expose all that we can."

What wonderful words to say to a jury in opening statement!
 The implication that the government holds all the cards. The use of the word "expose" connoting the idea that the government has hid their dirty deeds and those of their witnesses. 

Take an afternoon off. Go over to the federal courthouse and pay the exorbitant parking fees and watch how a lawyer defends his client. Observe how a lawyer who sees the chessboard a dozen moves in advance ply's his trade. 

The lion roars in winter once more.  

THE DEFENSE NEVER RESTS

"The war outside still rages, but you say it ain't ours anymore to win"
Bruce Springsteen, No Retreat, No Surrender. 

Two of the very best lawyers this country has ever known faced off in an REGJB Miami courtroom thirty years ago. A few days ago we read Abe Laeser's recollections and reflections of what went right and wrong for the prosecution. Now the defense attorney, Mr. Roy Black, weighs in on his thoughts about the case, proving that the defense never rests, even after an acquittal:

Rumpole thank you for the invitation to submit a clarifying rebuttal to Abe’s faulty recall. As you know I love to write about trials and trial advocacy; it is a vocation and an avocation. Abe makes a good point about his truncated preparation time. He was the acknowledged master of case preparation. If he had been in the case from day one it would have been a tougher job.

However Abe has forgotten the phony confession testified to by detective and now assistant chief Buhrmaster. I won't address that further except to note it is hard to be taking a confession at the same time you are on the radio directing troops trying to quell the riot. For an in-depth discussion of that impossibility and how it was exposed I refer the interested reader to my book Black's Law (yes this is a shameless plug).

My point of view is somewhat different than Abe for obvious reasons. During the year or so leading up to the trial there was a drumbeat of agitation in the political and black communities. Alvarez was being offered up as the scapegoat for the racial problems that roiled the city for decades. Magically his conviction (like Obama’s election today) would solve Miami’s deep racial hatreds and make us all love each other. The elected politicians and police brass all condemned Alvarez and worked towards his inevitable conviction while many black leaders threatened riots if Alvarez should be acquitted. Today it is hard to imagine the palpable fear of violence in the streets and in the courthouse.

I try to gain some lesson from each trial. In the Alvarez case it was that trial lawyers should work their strong points not their weak ones. I was cross examining a police detective and I decided to make a point by asking him to demonstrate with me his opinion on how the police encounter occurred. He stood up and carefully and slowly took off his glasses and readied himself for combat. Right away I realized I was in trouble. I had no chance against a veteran of the streets who could easily take me apart. So I raised my hands in mock surrender and said whoa let’s not get to serious here. This allowed me to retreat with some dignity.

The lesson is stick to our strong points. In cross examination we are in control. Why give that up for some physical battle I could easily and would have lost? Let’s face it in the courtroom we are smarter than them and we have the weapons. On the street it is not a contest. Words are our weapons not physical combat. At least that day I didn’t have to learn from my mistakes!

Roy Black, Esq. Well, there you have it. The thoughts of two of the very best lawyers around. Interesting that one of Abe Laeser's take aways was a criticism of his own cross examination of the defendant. Roy Black's lesson learned was to stick to the strong points of your case. See You In Court applying the lessons learned.

30 YEARS AGO : STATE V. OFFICER LUIS ALVAREZ

Can it really have been that long ago??

Perhaps Mr. Black  will write in with some remembrances. Mr. Laeser has done so and they are below.

They've done it before. See, The Case That Made Miami Burn. 

Hat tip to the second best blog in Miami: Random Pixels for the newspaper article. 

In our prior post, Mr. Black had this to say, inter alia:

Roy Black said..
The Alvarez trial was also a turning point in my legal life. It goes without saying that it was a hard fought battle with supporters on each side crying for blood and some even drawing it. The specter of another riot hung over the trial like an ugly dark cloud.

In answer to our request, Mr. Laeser emailed us this (unedited by us)

First, the case was poorly handled for over a year by prosecutors who had public cache, but limited courtroom skills.  I have no idea how the lead prosecutor was someone whose claim to fame was that as Gerald Ford's Chief Counsel, he was the creator of the Nixon Pardon.  How that became the basis of prosecuting a cop/killer will always be beyond me.  Then he actually quit - thankfully. 

 

Janet called me in to ask if I would take it -- with about six months left before trial.  I soon discovered that it could not reasonably be won.  More than enough probable cause, but 'probable cause' never met my witnesses.  They had spoken on TV, to the press, been badly prepared for deposition -- and those words which they had said would never be undone.    It made me wish, at times, that I had the other team's job.  Cross examination of young kids who had said far too much, in too many formats, was hardly worthy of Roy's skills.

 

Next, the community pressure was ridiculous.  I could not get police officers to meet with me.  The three officers involved in the case for MPD were the two who were trapped in the first moments of the initial rioting, and the I.A. investigator.  These three fine officers were living in fear - and not from the Overtown community.  Some of the cops who testified for the defense created fictional testimony.  One of them is now a Captain for Sweetwater ['nuf said?].  He testified that one could not see into the arcade.  Showing him multiple photos of the arcade from the outside, showing the minute details of the inside, only got him to say that the camera showed more that one could see at the time using one's eyes.  My post-trial idea of a perjury prosecution of this blatant liar was rejected by Janet.  The 'neighborhood' community was just as ridiculous.  They wanted assurances about the verdict.  Some were pissed that a white guy was still in charge.  In truth, the verdict made me proud for only one reason:  Given the history of the McDuffie rioting in May 1980 [worst four days of my professional life], and the rioting when Alvarez shot Neville Johnson, the "minor" response to this verdict gave me hope for Miami.  After the trial some of the rabble-rousers from P.U.L.S.E. actually thanked me for the effort, and told me that my work had kept the town from becoming an inferno.

 

Finally,  I have been second guessing my cross examination of the defendant for a long time.  I hate a lengthy cross.  He was a cop with limited impeachment available.  But I knew that he had panicked and shot Johnson.  He had modified his handgun to made it easier to fire.  But I decided that I needed to get under his skin - if I could.  If he stayed cool, as I am sure that Roy had practiced with him, then I had no reason to believe that a jury would overlook my awful witnesses and decide that the 'bad cop' finally showed his true demeanor.  Bottom line: the lengthy and aggressive cross was not fully effective.  Given the evidence presented, the jury was completely right in saying that the State did not prove its case beyond a reasonable doubt.  It was my last loss ever in trial.  // ABE

Rumpole says: WOW! For you young lawyers raised on Starbucks and IPads, this is history speaking. This is a lawyer who went into battle, odds against him, the pressure on, and fought like hell for the truth and rule of law. 

The only thing better than this would be for some enterprising organization to bring Mr. Laeser and Mr. Black together on a stage for about an hour, each with a microphone, and let them just talk about the case. 

WOW again. We love this stuff. 

See you in court. 

VERY GOOD SHOWING

UPDATE: TRAWICK SACKS ROBBINS FOR FIVE YEAR LOSS

The long, sad saga of former Oakland Raider center Barrett Robbins has come to a conclusion with a five year prison sentence of the former NFL star for violating his probation for testing positive for cocaine. The Herald has the story here.

We're not criticizing Judge Trawick here, but we are disturbed by the sentence. ASA David Gilbert (another fair and well respected player in this saga) asked for a prison sentence.

It is well known that Robbins is bi-polar. People with mental diseases self medicate with drugs. It just strikes us as wrong that we send mentally ill people to prison. We don't send overweight diabetics who self medicate by eating Ben and Jerry's Ice Cream to prison. But we send mentally ill people to prison all the time. And the quote attributed to Mr. Gilbert that Mr. Robbins deserves prison time because "he is big and quick" and thus presents more of a danger than, lets say a 5 foot 100 pound Miami Dolphin Cheerleader, also strikes us as wrong.

We recognize that Mr. Robbins was given chance after chance and at some point there are no chances left. And that's probably what happened here. It's just sad that we all know Mr. Robbins is mentally ill and prison is the best we can do.

FRIDAY'S SYMPOSIUM: THUS SPOKETH RUMPOLE.

The Symposium organized by Robert Kuntz went very well Friday . It was tough to get a word in edgewise with Brian Tannebaum and DOM hogging the microphone, but kudos to Mr. Kuntz for doing a great job moderating an ill-moderate bunch of egos. It was a very enjoyable experience.

And BTW, this shows that our judiciary needs qualified individuals with the varied life experience Mr. Kuntz, a former journalist, has. We hope he runs/applies again.

Also, follow Robert Kuntz on Twitter @RobertKuntz.

"SOME OF MY BEST IDEAS COME FROM MY CLIENTS."

This is the heading of a new post on Roy Black's new blog. (Roy spoke at the symposium Friday).

It's a good post with a simple but often overlooked practice tip- speak to (not at) your client, and listen (and don't interrupt) when they respond. It's amazing what you will learn.

Have a great weekend. For those of you not writing op-ed pieces on the late Justice Rhenquist, it is a beautiful day (so we hear) in South Florida (as we fly back from LA). Get out and enjoy Florida and we will see you in court Monday.

A DARK, BLACK, BLOG

Some people have entirely too much time on their hands. Rather than sit down, read a file and write a motion to suppress (with corresponding memorandum of law if it's going to the 3rd Floor of the REGJB) they decide ..."hey, I know what I'll do, I'll write a blog!"

Welcome, Roy Black to the Blog-a-sphere. Black's Law is here.

After the usual pandering to Rumpole to get a shout out, ("Rumpole does a great job..." {yawn}) Mr. Black gets down to the business of writing his blog:

I am writing this to teach myself. No one else. So this will be personal. I find that putting my ideas on paper helps crystallize them. It makes me think and work out ideas. Ideas about trials pop into my head all the time. During the fall semester at the law school I can use them for lecture topics. But outside of that, I have no forum to articulate them. Unless I make the effort to write them down and flush them out, I am afraid they will be lost. So now I have an outlet to discuss them.

Actually this is a very "Howard Roarkian/Ayn Randian" reason for writing: "I do this for myself." No altruist he, we applaud Mr. Black for echoing our reason for blogging: "Because we like it." Not to enrich the world or help "the poor, the ignorant, the simple." See, Phalen v. Virginia, 49 U.S. 8 How. 163, 168 (1850).

But merely to write, for writings sake. (And to poke a Judge now and then.)

Mr. Black notes that there are 60 million blogs "infesting" (good term) the internet and only 3% last "for any appreciable period." We've lasted for over 1800 posts, (this is our 1884th) but we hardly think that's "an appreciable period" considering that baseball's Cal Ripken played in 2,632 straight games over seventeen seasons. So we'll return to this subject sometime in 2022 (longtime and careful readers remember that we started this blog November 16, 2005).

DOM is excited that Mr. Black revealed his "folder method" for cross examination. (Click here, if you must.) The discourse on the relative advantages versus the disadvantages for writing out cross examination questions is useful, but we frown on attempting to devote a few blogged lines to a subject that takes many lifetimes to master.

Still, overall we welcome Mr. Black to blogging. He is an eminently successful lawyer (and a nice guy to boot) and we look forward to his views in forthcoming posts. His discourse on these pages with Mr. Laser on their epic battle in the Alvarez case (Circa 1982) (See, Rumpole, The Case That Made Miami Burn) remains one of our personal favourites.

Mr. Black rapidly approaches that dreaded "Dean of Defense Attorneys" title that signifies the probability that most of one's battles are behind them. (As Bruce Springsteen sang in No Retreat, No Surrender: "The War outside still rages, but you say it ain't ours anymore to win...")

But you ignore the Lion's roar at your own peril. Even the Lion in Winter.

See You In Court, our cross examination's fully written out, fully cross referenced, but without any folders, per se.