A blow to a strong, independent criminal bar

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Sam Spade (Humphrey Bogart), suspected of killing his partner, is confronted by police in John Huston’s iconic 1941 film noir, The Maltese Falcon.

About two decades ago, Philadelphia defense attorney Andrew Gay assumed the chair of the Criminal Justice Section of the Philadelphia Bar Association.   At his first meeting as chair, Mr. Gay spoke of the need for a strong, independent criminal bar.

That independent institution is mortally threatened as Philadelphia is moving to a new way of providing defense for indigent persons accused of crimes.

For decades, Philadelphia defendants too poor to afford lawyers have been represented by the Defender Association.  Where there is a conflict–more than one person is accused of participating in the same incident, or the Defender Association already represents the victim or witness in another case–a private attorney is appointed to represent the accused.

Over the decades, there has developed a corps of private defense attorneys who accept court appointed cases at low fees.  A court appointed attorney who argues an appeal before the Superior Court is paid $50 for his time in court.  A law firm might bill a client five to 10 times that rate for similar representation.   

Private attorneys take appointments for many reasons.  Unless they are fortunate enough to be hired out of law school by the District Attorney or the Defender Association, court appointments are the way to get into criminal law.  Other reasons for taking court appointments include getting courtroom experience, building a practice, dedication to justice, and the challenge, fun and excitement of it all.

When a case ends with a bad result, the court appointed attorney is often blamed.  They are written off as bad lawyers, who take the cases because they can’t attract clients.   Frequently, these lawyers can’t recruit high-profile private clients, but they are still good in court.  Often the bad results are caused by inadequate funding for investigators and expert witnesses.

All this will change as the City of Philadelphia is moving to a “second defender system.”   Under this plan, a private law firm or nonprofit agency would handle the cases where the Defender Association has a conflict.  Presumably, private counsel could be appointed where three defense attorneys are needed for a case.  

The City of Philadelphia has proposed the change to save money.  The Philadelphia Bar Association has expressed positive interest (it has not yet endorsed the change), in the belief that the second defender system will follow nationally accepted standards, have adequate funding, better training, and better support services.

Every reform has its downside.   The second defender system will weaken the private criminal bar in Philadelphia.   Traditionally, attorneys wishing to get started in criminal law worked in the District Attorney’s office, the Defender Association or took court appointments.  

With the second defender system, one of the avenues to criminal law practice will be closed.  There will be less work for the lawyers who now take court appointments and fewer opportunities for entry into the specialty.

Democracy and justice require lawyers to protect persons who are falsely accused.  Criminal defense lawyers uphold standards of justice for everyone.

In 1941, when Sam Spade needed legal advice, he had Sid Wise to keep him out of trouble.   In 2041, will there be a Sid Wise if you are suspected of a crime you did not commit?

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Eldorado Springs is in neighboring Cedar County.  Founded as a resort, some of the springs are in the city park.  The main street is three blocks long.  It contains a neat coffee shop, a Mexican restaurant, a couple of gun stores, a real estate office, the opera house, a luncheonette, a church, and a newspaper office.  

How Maimonides got Ernesto Miranda out of jail

I gave the following D’var Torah at Minyan Masorti of Germantown Jewish Centre on February 9, 2013:

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Maimonides (“The Rambam”)  Jewish physician and philosopher (1135-1204).

Today’s Dvar Torah could be called “How Maimonides got Ernesto Miranda out of jail.”

 

How I got to this conclusion is a story in itself.

 

Wednesday is the 35th anniversary of the Sydney Hilton bombing.  On February 13, 1978, there was a conference of Commonwealth ministers at the Hilton hotel in Sydney, Australia.  A bomb exploded in a trash truck as it was making a pick up from the hotel.  Two sanitation workers and a police officer died.   Police began an investigation which led to the arrest of Tim Anderson and two other members of a religious cult.   Thus began a political battle full of stories of conspiracies, corruption, informers, false charges and coverups.

 

The struggle gave rise to two protest songs by Alistair Hulett and his band Roaring Jack.

 

In “Criminal Justice” there is the verse:

 

            The next thing you know you’re down at the station

            Where they bang you on the head with a      .      telephone book

            To help you recall what is what that you took

 

In “Framed” there is the chorus:

 

            Framed by the Secret Service

            Framed by the State apparatus

            Framed in the corridors of Justice

            Clearer than any slogan on a wall

            Tim Anderson’s framed

 

After years of political and legal struggle, Tim Anderson was acquitted in 1991.

 

The Sydney Hilton bombing emphasizes the need for standards and integrity in the justice system.

 

I decided to speak today in honor of the struggle over Tim Anderson.   As it turned out, today’s portion, Mishpatim has rules of criminal procedure, which are applicable today.

 

Turn to Exodus 23:    In lines 1 through 8, there are rules against spreading false rumors, being a malicious witness, siding with the mighty or deferring to the poor, and bribery.

 

These rules give rise to the question, what influence did Jewish law have on our American legal system.

 

The answer is very little—at least directly.

 

In Jewish law we have the Halakhic principle, Dina De-Malkhuta Dina—“the law of the land is binding."   Criminal law was a government concern, and therefore there was little interplay between Jewish law and the law of the host nation.

 

However, what cannot be done through the front door, can be done through the back door.

 

Thus we have the famous decision of Miranda v. Arizona, 384 U.S. 436 (U.S. 1966), was and the right to remain silent.

 

Ernesto Miranda was arrested in connection with the kidnapping and rape of a 17 year old woman.   After two hours of questioning, he signed a confession.  He was never informed of his right to counsel and that anything he said could be used against him.  At trial, his court appointed lawyer objected to the use of the confession.   The case went up to the United States Supreme Court, which in 1966 issued its famous decision about being given your rights before questioning.

 

Here we come to the great philosopher and legal authority, Maimonides.  In Book of Judges, Sanhedrin, Chapter 18, Maimonides wrote about the Scriptural decree that a person could not be put to death or flogged on his own admission.   He said a person could falsely confess because of confusion of mind or a wish to die.

 

 

In Footnote 27 of the Miranda decision, the Supreme Court cited Maimonides and an article by Dr. Norman Lamm, later to become the third president of Yeshiva University, entitled, "The Fifth Amendment and its Equivalent in the Halakhah.”

 

A year later, in 1967, the Rambam returned as the United States Supreme Court decided the case of Garrity v. New Jersey, 385 U.S. 493 (U.S. 1967), which involved corrupt police officers.  According to a New Jersey statute, state employees could invoke the Fifth Amendment, but in so doing they could be fired.  The authorities were conducting an investigation of the fixing of traffic tickets by police officers. In order to save his job, Garrity answered questions.  His answers were used against him when he was later prosecuted criminally.  Garrity was convicted.  After the New Jersey Supreme Court affirmed the conviction, Garrity appealed to the Supreme Court of the United States.

 

The Supreme Court ruled that Garrity’s answers were coerced and therefore his confession was not voluntary and could not be used against him at trial. 

 

In Foot Note 5 of the Garrity Opinion, the Supreme Court cited a different article by Dr. Lamm entitled, “The 5th Amendment and its Equivalent in Jewish Law."  

 

Among Dr. Lamm’s points were:

 

            1.  The Halakhah does not distinguish between voluntary and forced confessions. 

            2.  The Halakhah does not permit self-incriminating testimony

            3.  The ban protects the minority of people who would confess out of a death wish.

            4.  The ban favors the Life Instinct over the Death Instinct.

            5.  The Fifth Amendment only prohibits involuntary confessions    whereas the Halakhah bars all confessions.

            6.  The Halakhah bars all confessions because of its psychological insight and its concern for saving man from his own destructive             inclinations.

 

Dr. Lamm writes that these conclusions are drawn from the Rambam.

 

The Rambam returned to court in 1992, when Gerald Rosen, Chief Judge of the United States District Court for the Eastern District of Michigan ruled in the case of Moses v. Allard, 779 F.Supp. 857 (E.D.Mich. 1991).

 

Ilene Ruth Moses had filed for bankruptcy.  She owned or controlled a number of foreign and domestic enterprises which were in the ladies clothing industry.  Among her assets was  an $89 million interest in a Hong Kong business known as Jollard.  It was alleged that Moses obtained loans secured by non-existent assets.   The Trustee, in behalf of the creditors, wanted to ask Moses certain questions.  Moses invoked the Fifth Amendment on the grounds that her answers would incriminate her in a criminal investigation being conducted in the courts of Switzerland.

 

The bankruptcy Court ordered Moses to answer.   She appealed to the District Court.  Judge Rosen, after acknowledging that there was little precedent, ruled that Moses could refuse to answer under the Fifth Amendment.

 

Judge Rosen cited in the main text of his Opinion—not in a footnote—two works.   Norman Lamm, "The Fifth Amendment and Its Equivalent in Jewish Law,” and Leonard W. Levy, “Origin of the Fifth Amendment Right Against Self-Incrimination."  

 

Judge Rosen recognized that while Lamm said the "Fifth Amendment privilege probably originated in ancient Talmudic law,"  Levy concluded that there was no proof that Talmudic references had any influence in the development of the privilege.

 

Nevertheless, Judge Rosen said that rabbinic courts recognized the right not to testify.   This rule was absolute and could not be waived. 

Among the rationales for the rule was:

 

            1.  the confession could be untrustworthy

            2.  the confession could be the result of an unsound mind and thus the person could not have the intent to confess

            3.  the confession was attempted suicide.  Suicide was prohibited because the human body belongs to God and not the individual.

 

So the next time

 

            you’re down at the station

            Where they bang you on the head with a telephone book

            To help you recall what it was that you took

 

Remember, you don’t have to talk.  Thank the Rambam.