Thousands of years ago, before I became a lawyer, I sat for the Ohio bar exam. While nearly every aspect of the experience has been forgotten, one peculiar detail has stayed put in my memory since then.
The test, itself, consisted of a dozen or so separately timed essay questions on one day, and another dozen or so separately timed questions on the second. Each essay question involved a different legal topic, ranging from property law, wills and trusts, constitutional law, criminal procedure, civil procedure, et cetera. Each topic was the subject of only one essay, so that you knew at the end of the first day, by process of elimination, which topics remained to be tested on the second day.
Unless. Unless you mistook a question on the first day for one legal topic when its intended subject was actually another. This would mean two things: first, you may use that precious night between testing to cram study the wrong topic for the second day, and second, you could find a question on the second day that tested a topic you thought was already tested and realize, in the midst of the second day of essays, that you had totally nosedived on a first day essay.
And so, at the end of the first day, circa July 1994, a list of the topics remaining for the second day of testing was circulated by the bar exam prep course people. One topic remaining on the list for the second day was civil procedure. This was a problem. I had already answered a question I believed to be a civil procedure question on the first day. If civil procedure had yet to be tested on the second day, then...
A unique sort of panic set in throughout the hotel that night. I was not alone. Others believed that they had answered a civil procedure question on that first day of testing, but it was clearly a small minority. The smartest echelon insisted we had mistook an obvious constitutional law question for a civil procedure question. After all, it was the smartest echelon that originally reported their first day experience to the bar exam prep course people, who, in turn, posted the controversial list.
Early in the second day of testing, Bill and I found our vindication. It was an obvious constitutional law question. This meant that the contested first day question had, in fact, been a civil procedure question and not a constitutional law question. The smartest echelon was wrong. That shrill, sanctimonious chorus of people we couldn't stand in law school was wrong. And they all realized it -- digested their collective error -- at the exact same moment, soon after the proctor signaled, "Begin."
Wednesday, September 29, 2010
Saturday, September 25, 2010
Fugitive Safe Surrender: "Was it a Success or Failure?"
I loathe false dichotomies. Every element of the lives we lead are more complicated than the two sides of the coin. I have reserved judgement on this "Safe Surrender" program until it's conclusion, as it should be, and now that the Cleveland Municipal Court component of the program has been cancelled for today ( "Yay! Ingenuityfest, Here Comes the Bloomsdays!") I will say that it was an utter nightmare of legal and logistic problems, and that I will say that I am proud to have helped navigate a few people through it. Just like Gene Hackman in the Poseidon Adventure! Actually, my stats were better than Hackman's. The luxury cruise ship of a church was turned upside down by the process, packed with confused, anxious/nervous people. It was a just idea. I just wish it produced more just results.
The real heroes of the program were the bailiffs and clerks and who exemplified grace under pressure. Getting people to follow paperwork through this bureaucratic funhouse was a torturous struggle. Flowcharts be damned, the bailiffs and clerks understood the spirit of the event and I watched a hundred examples of devoted public service. I love those people. The first round's on me, ladies and gents.
The real heroes of the program were the bailiffs and clerks and who exemplified grace under pressure. Getting people to follow paperwork through this bureaucratic funhouse was a torturous struggle. Flowcharts be damned, the bailiffs and clerks understood the spirit of the event and I watched a hundred examples of devoted public service. I love those people. The first round's on me, ladies and gents.
Wednesday, September 22, 2010
J'accused, Maison Respondez Vous
[Letter to the Editor, PD, Twenty-first of Septemba]
David Barnhizer is just plain wrong (Opinion, Friday). There is an essential difference between criminal investigation, conducted by police agencies, and prosecution, conducted by prosecutors. The FBI is a federal criminal investigatory organization and handles cases like the county corruption probe because it has the resources to develop informants, conduct surveillance and wiretaps in long-term investigations. It has conducted similar probes in cities across the country. By Barnhizer's misguided logic, all of these local prosecutors across the country are either incompetent or corrupt.
The FBI investigates a case and typically refers it to the corresponding federal prosecutors. Whereas, local and state police agencies typically refer their investigations to city or county prosecutors. Local police do an excellent job, but do not have the same resources as the FBI.
I have always taken a tough stance on crime. During my tenure, my office has prosecuted more than 180,000 cases investigated by the more than 60 police agencies and approximately 1,000 law enforcement officers throughout Cuyahoga County. The nearly 300 public employees prosecuted by my office were investigated by local and state authorities. These efforts have resulted in a 90 percent conviction rate, which is far above the national average.
My office will continue to work with the federal authorities in their thorough investigation of the county corruption probe.
Bill Mason, Cleveland
David Barnhizer is just plain wrong (Opinion, Friday). There is an essential difference between criminal investigation, conducted by police agencies, and prosecution, conducted by prosecutors. The FBI is a federal criminal investigatory organization and handles cases like the county corruption probe because it has the resources to develop informants, conduct surveillance and wiretaps in long-term investigations. It has conducted similar probes in cities across the country. By Barnhizer's misguided logic, all of these local prosecutors across the country are either incompetent or corrupt.
The FBI investigates a case and typically refers it to the corresponding federal prosecutors. Whereas, local and state police agencies typically refer their investigations to city or county prosecutors. Local police do an excellent job, but do not have the same resources as the FBI.
I have always taken a tough stance on crime. During my tenure, my office has prosecuted more than 180,000 cases investigated by the more than 60 police agencies and approximately 1,000 law enforcement officers throughout Cuyahoga County. The nearly 300 public employees prosecuted by my office were investigated by local and state authorities. These efforts have resulted in a 90 percent conviction rate, which is far above the national average.
My office will continue to work with the federal authorities in their thorough investigation of the county corruption probe.
Bill Mason, Cleveland
Saturday, September 18, 2010
J'accuse!
Anyone recall Emile Zola's involvement in "the Dreyfus Affair?" Zola wrote a letter to the president of France (Hey, they have a president!?) accusing bigwigs of an anti-Semetic plot to frame a Jewish officer in the French military. Zola's letter, writ large under the banner of J'accuse! opened public minds and reversed the course of the conspiracy.
Yesterday's letter to the Plain Dealer by CSU Law Professor David Barnhizer should have a similar impact on our current shit storm of corruption. Here's the text, in full.
In the midst of the Cuyahoga County corruption scandals, there is an unasked question about the county's "800-pound gorilla," Bill Mason. The prosecutions and investigations in this and other cases have been done by federal authorities rather than by the office of Mason, Cuyahoga County's prosecutor. The question is why the chief law enforcement officer in the county, with a staff that is wired in to virtually all the local political machinery, as revealed in a recent Plain Dealer article, was unaware of or chose to ignore the cesspool of corruption, bribery, kickbacks and special deals for friends and contributors that has been Cuyahoga County.
Given Mason's amazing political reach and obvious sophistication, it is difficult to accept any claim that he was unaware of the corruption. The investigative power of a prosecutor is also substantial, as is the ability to use the grand jury as a device to uncover wrongdoing.
Yesterday's letter to the Plain Dealer by CSU Law Professor David Barnhizer should have a similar impact on our current shit storm of corruption. Here's the text, in full.
In the midst of the Cuyahoga County corruption scandals, there is an unasked question about the county's "800-pound gorilla," Bill Mason. The prosecutions and investigations in this and other cases have been done by federal authorities rather than by the office of Mason, Cuyahoga County's prosecutor. The question is why the chief law enforcement officer in the county, with a staff that is wired in to virtually all the local political machinery, as revealed in a recent Plain Dealer article, was unaware of or chose to ignore the cesspool of corruption, bribery, kickbacks and special deals for friends and contributors that has been Cuyahoga County.
Given Mason's amazing political reach and obvious sophistication, it is difficult to accept any claim that he was unaware of the corruption. The investigative power of a prosecutor is also substantial, as is the ability to use the grand jury as a device to uncover wrongdoing.
As we have seen, the culture was not simply a crooked auditor such as Frank Russo, but a comprehensive and ongoing scheme that had gone on for at least 10 years and spread throughout the entire system -- one in which Mason stands as the primary legal officer and prosecuting authority with enormous discretion and power. Yet if the federal authorities had not acted, there is absolutely no reason to believe that any of the disgusting criminal activity would have been revealed or prosecuted under Mason's watch.
The conclusions that could be drawn from this situation are several. The kindest is that Mason is incompetent due to his being entirely unaware of the pervasive rot that had spread throughout the public offices of Cuyahoga County. This, however, is difficult to accept, given Mason's political contacts, sophistication and undeniable leadership role in the county's political system. If incompetence is not the answer, then we, unfortunately, move to other possibilities, including that Mason was aware of the wrongdoing but chose to look the other way under some twisted concept of party loyalty or the idea that what was occurring was acceptable political patronage rather than criminal activity.
A third possibility is that Mason was a knowing part of this system and both distributed and received benefits from it in the way of other participants. Certainly there are some indications of questionable deals. These include the special employment arrangement given campaign contributor Michael Climaco, a significant reduction in the taxable base for Mason's residence and the lucrative contract given Peter Szigeti, who was not only a Mason employee but was awarded consultant payments of more than $1.1 million, contributed to Mason's campaign war chest and designed his political website.
There are legitimate questions to be asked and the only way to ask them with any force is to employ a special prosecutor to investigate and determine whether Mason ignored evidence of widespread criminal wrongdoing under his watch or even participated in the culture of corruption. It seems likely that the federal authorities might be asking these questions, but unless Mason is secretly cooperating with the feds and his beneficial contributions to that investigation will be explained at the end of the process, he appears to be cloaked with a Teflon shield that is insulating him from serious consequences.
Barnhizer is an emeritus professor of law at the Cleveland-Marshall College of Law, Cleveland State University.
Thursday, September 16, 2010
The Maelstrom
As a lawyer amid the daily chaos of the court system, I find curious refuge in the Edgar Allen Poe story, A Descent into the Maelstrom. The tale, told by an elderly survivor to a terrified, younger listener as they cling to the windswept craggy rocks overlooking the site of the recurring phenomenon, always held powerful sway over me.
"Ooh, giant whirlpool! How scary!" you may mock. But Poe's description of the vicious immorality of nature, the helplessness that is the counterpoint to the senseless (but utterly predictable) destruction of the giant, sucking swirl of sea is chilling.
If studied carefully, the story is far more than spooky. It is an illumination. That's because the survivor who tells the tale uses a novel pair of skills to save himself: situational awareness and pattern recognition. The story is really a survival guide; a petition, not of faith, but of wisdom.
I have applied those skills in navigating the courtroom. I have applied those skills in navigating a corrupt government in my town. As we will soon learn here in Cleveland and its Cuyahoga environs, it is not the powerful who will survive the maelstrom. It is the wise.
"Ooh, giant whirlpool! How scary!" you may mock. But Poe's description of the vicious immorality of nature, the helplessness that is the counterpoint to the senseless (but utterly predictable) destruction of the giant, sucking swirl of sea is chilling.
If studied carefully, the story is far more than spooky. It is an illumination. That's because the survivor who tells the tale uses a novel pair of skills to save himself: situational awareness and pattern recognition. The story is really a survival guide; a petition, not of faith, but of wisdom.
I have applied those skills in navigating the courtroom. I have applied those skills in navigating a corrupt government in my town. As we will soon learn here in Cleveland and its Cuyahoga environs, it is not the powerful who will survive the maelstrom. It is the wise.
Friday, September 10, 2010
Despicable Politicking or How I Helped the Levy Pass
As a shipping manifest details all sorts of cargo to destinations unknown, a federal indictiment (or information, if you will) can provide illumination on the level our status quo county democratic party establishment understood itself.
Neither Mason Dimora nor Russo McFaul
could see their own errors, so glaring and all
It's been pathetic, living on the fringe of these clowns and their respective "powerbases." I try to breath life into people's constitutional rights as a paltry paid public pretenda, while these fuckers are making and stealing and hiding money while on the county teat. What a rotten, rigged system it has been. And the only possible defense is, that it's been done this way for decades. Horray for our society! We've been at the hands of corrupt, self-serving, incompetent frauds for decades! And wait just one minute before you Republican sluts get sanctimonious: You're even worse.
It's time to clean up American politics. plain and simple. Do you're fucking jobs, people!
A word of advice, Mr. Dolan and Fitzgerald: Stand united. Cleveland D's & R's are different than U.S. R's & D's. Don't confuse the two. Cleveland and Cuyahoga have interests different from any other in our nation: strategic, environmentally sound, sustainable, hard-rocking interests. International port? Maybe not. But certainly an International destination. Rock Hall? Sokolowski's? Metroparks? Lakewood? Tremont? Great Lakes Region? Majestic Wind Farms? Casino? Asian Carp Infestation?
Speaking of carp, I am reminded of one of my earliest personal parables and how I helped the levy pass.
Neither Mason Dimora nor Russo McFaul
could see their own errors, so glaring and all
It's been pathetic, living on the fringe of these clowns and their respective "powerbases." I try to breath life into people's constitutional rights as a paltry paid public pretenda, while these fuckers are making and stealing and hiding money while on the county teat. What a rotten, rigged system it has been. And the only possible defense is, that it's been done this way for decades. Horray for our society! We've been at the hands of corrupt, self-serving, incompetent frauds for decades! And wait just one minute before you Republican sluts get sanctimonious: You're even worse.
It's time to clean up American politics. plain and simple. Do you're fucking jobs, people!
A word of advice, Mr. Dolan and Fitzgerald: Stand united. Cleveland D's & R's are different than U.S. R's & D's. Don't confuse the two. Cleveland and Cuyahoga have interests different from any other in our nation: strategic, environmentally sound, sustainable, hard-rocking interests. International port? Maybe not. But certainly an International destination. Rock Hall? Sokolowski's? Metroparks? Lakewood? Tremont? Great Lakes Region? Majestic Wind Farms? Casino? Asian Carp Infestation?
Speaking of carp, I am reminded of one of my earliest personal parables and how I helped the levy pass.
Wednesday, September 8, 2010
Well, we know its a Business vs. Labor contest, now.
Sincere congrats to the winning candidates in yesterday's primary election in Clevelandia. Are you sure you know what you're getting into, fellas?
Now, this campaign evolves You've got the county corruption/county reform thing. You've got the national mood. Cuyahoga, the poster child for entrenched political corruption, bureaucratic dysfunction, sacred ground, defiled. Race. Ethical campaign financing. Clean water. The County Executive is a Big Deal. So, it's time to talk honestly about government.
Right here.
These are my ten questions for the candidates:
1. This entire new charter government thing can be described as a three step process: first, is the transition. second, is the new council and executive and row offices, third, is the charter review; the ongoing "look in the mirror" designed to gauge the effectiveness of our new government. Please briefly describe your concerns about each step.
2. If the county prosecutor should step down, what role, by law, would you have in selecting a replacement? What caucuses would you consult? And what of the role of County Prosecutor in the new charter? Does the omni-presence of the prosecutor in the process (including funding streams to indigent defense) raise concerns?
3. Talk about the Constitution
5. Talk about R.E.M.'s song Cuyahoga, and its impact on your political or moral philosophy?
5. Role of the ombudsman/public servant/public steward?
6. When loading a dish washer, do you put silverware pointing up or pointing down? Defend this practice.
Now, this campaign evolves You've got the county corruption/county reform thing. You've got the national mood. Cuyahoga, the poster child for entrenched political corruption, bureaucratic dysfunction, sacred ground, defiled. Race. Ethical campaign financing. Clean water. The County Executive is a Big Deal. So, it's time to talk honestly about government.
Right here.
These are my ten questions for the candidates:
1. This entire new charter government thing can be described as a three step process: first, is the transition. second, is the new council and executive and row offices, third, is the charter review; the ongoing "look in the mirror" designed to gauge the effectiveness of our new government. Please briefly describe your concerns about each step.
2. If the county prosecutor should step down, what role, by law, would you have in selecting a replacement? What caucuses would you consult? And what of the role of County Prosecutor in the new charter? Does the omni-presence of the prosecutor in the process (including funding streams to indigent defense) raise concerns?
3. Talk about the Constitution
5. Talk about R.E.M.'s song Cuyahoga, and its impact on your political or moral philosophy?
5. Role of the ombudsman/public servant/public steward?
6. When loading a dish washer, do you put silverware pointing up or pointing down? Defend this practice.
Saturday, September 4, 2010
Look Closer
Follow this link to an old article about a convicted cop named Hurley. Study the photograph: in the center is the cop standing next to his lawyer. But look past his other shoulder and behold the chilling, spectral presence of...of...BLOOMSDAY!
Curiouser and curiouser, I'd say.
Curiouser and curiouser, I'd say.
Friday, September 3, 2010
Thursday, September 2, 2010
A Trinitarian Notion: The Truth, The Whole Truth, and Nothing But The Truth
I wound up in a teeny-tiny, itty-bitty, eensy-weensy little trial yesterday that ended in a just result. It was classic "courtroom, classroom, theater, church" paradigm-shifting in action.
My opening question to the witness for the prosecution was a not-so-subtle reminder of their oath. "Moments ago, you stuck your hand in the air and you swore to tell the truth, the whole truth and nothing but the truth as you shall answer unto God, is that correct?"
"Yes," he says.
"Please explain to the court your understanding of the difference between the three."
My opening question to the witness for the prosecution was a not-so-subtle reminder of their oath. "Moments ago, you stuck your hand in the air and you swore to tell the truth, the whole truth and nothing but the truth as you shall answer unto God, is that correct?"
"Yes," he says.
"Please explain to the court your understanding of the difference between the three."
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