The Peaking Beneath the Blindfold Edition

Episode Notes

Transcript

@theBar

The Peaking Beneath the Blindfold Edition

06/06/2018

[Music]

Jon Amarilio: Hello everyone. Welcome to CBA’s @theBar, the podcast where young and youngish lawyers discuss legal news, events, topics, stories, and other vague synonyms for whatever else strikes our fancy.

I am your host Jon Amarilio of Taft Stettinius & Hollister, and co-hosting the pod with me today is Jen Byrne of The Chicago Bar Association. Hello Jen.

Jennifer Byrne: Hi Jon.

Jon Amarilio: This is The Peaking Beneath the Blindfold Edition. Topics we will be discussing today include how do judges decide what they decide and why they decide it and other various things.

Joining us today is veteran white-collar criminal defense lawyer Joel Cohen of Stroock & Stroock & Lavan in New York. Before joining Stroock, Joel served for a decade as a prosecutor with the New York State Special Prosecutor’s Office and then with the DOJ’s Organized Crime and Racketeering Section in the Eastern District of New York.

Joel writes regularly for the New York Law Journal,  HYPERLINK “http://www.law.com” law.com and HuffPost and he has written a number of books, including ‘Blindfolds Off: Judges On How They Decide’, a truly fascinating collection of interviews Joel performed with 13 current and former Federal District Court judges.

Joel, welcome.

Joel Cohen: Thank you for having me.

Jon Amarilio: So for those of us in our audience who haven’t read or picked up your book Blindfolds Off yet, why don’t you tell them about it.

Joel Cohen: So it’s a book consisting of 13 interviews of federal judges, mostly still sitting federal judges, who were involved in large cases, cases that generally had a national component to them. And some of those judges I knew from before, because they are New York judges, but then I looked for judges around the country in that kind of a case and found them more than willing to talk, which surprised me a great deal, that judges are usually in the monastery of the courthouse, they were willing to talk and speak somewhat boldly in terms of those cases.

Jon Amarilio: What inspired you to write it? What were you looking for?

Joel Cohen: Well, actually I was originally going to write the book or wanted to write the book with Judge Rakoff, who sits in the Southern District of New York, he is probably the most prolific judge in that courthouse, maybe in the country, and I would talk to him about 10 different cases that he was involved in. And it was just excruciating getting a hold of him, because he is such a workaholic and I would be meeting with him for two or three occasions in the evening on Sunday at 10 o’clock.

And after a while he said to me, he says, I am not doing you justice, it’s just taking too long for you to get this done. So I moved in the direction. We both sort of talked about it of maybe changing the model of the book to be interviews with different judges in different cases.

Jon Amarilio: And I think we will get to some of the specific interviews because I would love to ask you some questions about those in a minute, but what were some of your biggest takeaways from the book? What did you learn? What surprised you?

Joel Cohen: For a guy who has been around the block for a long time, I was shocked by some of the things judges said with respect to how they look at cases and sometimes they are looking cases beyond the case, that they are looking to basically change society in a way. You find Judge, he was then the Chief Judge of the Ninth Circuit, Judge Kozinski, he would talk about a case in terms of not how this case was decided, but how he was going to move the law.

Judge Weinstein, who is the Dean of the Federal Judiciary, he is now 96 or 97; he was 93 I think when I interviewed him, he dealt with the Agent Orange case, the horrible abuse that resulted from the Vietnam War that we are now seeing on that wonderful show about Vietnam that is going on in public television. He basically said that beyond trying to compensate soldiers for having been contaminated by Agent Orange, he wanted to do something that the country had not done yet; show respect for the military that came home that was so disrespected when it happened.

He was looking to accomplish something far beyond the four corners of the case that was presented to him. My mouth dropped when I heard him say that.

Jon Amarilio: Right, because usually when you think of judges moving the law, as you said, you think of Supreme Court judges or possibly Circuit Court judges, appellate judges doing that, that’s not really in the job description of District Court judges, is it?

Joel Cohen: Well, I must say that the sample I chose in this case, because I was looking for big deal cases with big deal results, the demographic of who I chose was somewhat skewed. I was picking somewhat older judges because I felt they would be more outspoken in terms of what they were doing than young, less secure judges, and also these people were people who had done bold things were more willing to talk about it.

Jon Amarilio: And it’s too late for further confirmation hearings for them, right?

Joel Cohen: Exactly. Exactly.

Jon Amarilio: Yeah. So the foreword in Blindfolds Off was written by recently retired Judge Richard Posner, late of the Seventh Circuit, why ask an appellate judge to introduce a book about how trial judges think?

(00:04:56)

Joel Cohen: It’s an interesting thing, although Judge Posner prided himself on sitting sometimes in the District Court, but the thing about Judge Posner, he is a provocative figure, particularly of late, and I do a monthly blog with him and Judge Rakoff now. But he is probably the most influential thinker on the law in the United States and on judging, maybe in the world, and on judging and he was a guy who could really look at what I had done and say something worthwhile and in fact he was somewhat critical.

He said the interview method of interviewing judges has a deep flaw. The deep flaw is judges are self unaware, his words, in terms of recognizing the biases that they have.

So while the introduction was very kind and very generous to me, he made it very clear that to some extent the interview method doesn’t succeed because some judges are holding back.

Jon Amarilio: Right. I think the words he used was that judges hide behind a veil of modesty, that if it came from another judge it would have surprised me, but coming from Judge Posner, it didn’t, but it seemed to imply that that modesty —

Joel Cohen: Humility is overrated I think.

Jon Amarilio: That’s an understatement, yeah.

Jennifer Byrne: Well, I think it’s kind of interesting actually because did you read the article that was in the ABA Journal last week, I think it was about how for his recent book he revealed a lot of information.

Joel Cohen: Internal memos from the Seventh Circuit.

Jennifer Byrne: Internal memos, et cetera, so it’s interesting that he would come at in that regard in the foreword and then kind of take the opposite approach in his own book. I don’t know.

Joel Cohen: Well, you need to get Judge Posner on this show. I am sure that would increase your audience considerably.

Jon Amarilio: Yeah. But returning to the veil of modesty thing, that took me back I suppose because it implied that that modesty was false on behalf of trial judges, do you think that’s the case?

Joel Cohen: I don’t think there was an issue of false modesty. I certainly felt that in the case of a couple of these judges that they held back. They were not comfortable. When you are taping somebody — I actually do a class at Fordham Law School in New York based on this book, where we and the students, my co-teacher and the students interview judges on big cases, some of them who have appeared in this book, and we don’t let the students record anything, use their computers while the judges are there, because you are a lawyer —

Jon Amarilio: They must be twitching.

Joel Cohen: Yeah, exactly. You are a lawyer and you know what happens when a young associate is sitting there taking notes when you are trying to interview a witness.

Jon Amarilio: Not paying attention.

Joel Cohen: Well, not only that, that the witness is looking at the person taking notes and basically holds back to some extent, and that’s the advantage of the class, because there’s no recording, but there is recording here.

For example, Judge Sullivan sat on the Senator Ted Stevens prosecution years ago in DC, and he ultimately was disturbed by the government’s conduct, he ultimately threw out the conviction on the government’s application. And Judge Sullivan, who sat on the case, wonderful, wonderful man, and I asked him during the course of the interview, I asked kind of direct questions, do you think that the guy was innocent? He says the word innocent doesn’t really have a place in the courtroom; it’s about guilt or non-guilt — non-innocence. And that’s very nice for a charge to a jury, but I felt that Judge Sullivan just didn’t want to communicate that.

After the interview was over, the recording was over, and he is just a wonderful, wonderful man, you should meet him someday; he said to me well, how did that go? I said Judge, this conversation would have been a lot different if you and I had had a glass of wine during this.

So then what I would typically do is send the transcripts back to the judge, let them edit it in any way, and none of them, almost none of them edited anything that they had to say subsequently, couple of nitpicks but nothing like that.

He sent it back to me and he said how does it look? I said Judge, let me put it this way. If you and I were both in the CIA and in Iraq and they had arrested you and was spending the night with you trying to find out if I was in the CIA, I would sleep well at night, because you don’t give it up. And that’s the truth.

Some people give it up in different ways; some give it up as in the case of Kozinski and Weinstein more so than anybody. It’s shocking how different along the parameter of the judiciary these judges can be.

Jon Amarilio: One of the interviews you did for the book was with Denny, Judge Denny Chin, who is on the Second Circuit, but before that he was sitting in the Southern District of New York. I have had the pleasure of meeting him at a conference, had dinner with him a couple of years ago, and one of the takeaways I got from your interview with him was that you thought he was holding back. I thought that was pretty clear. When you were discussing the — I am sorry, I should say for our audience that Judge Chin, amongst other high profile cases he has handled, sentenced Bernie Madoff to 150 years in prison after his infamous swindle. You were trying to ask the same question a number of different ways I saw in the interview, but having trouble getting him to perhaps open up as you said.

(00:10:15)

Joel Cohen: Yeah and it’s so. He is a lovely guy, as you say, the problem is I am asking him why would you give a 70 year old man a 150 year sentence. If you give him 30 or 40 years, he is never going to see daylight, and it wasn’t clear to me even after the interview exactly why he was doing it. Are you looking to make a statement, there is no case like that?

And I have sympathy for long sentences. I have represented some of Madoff’s victims, but I never fully understood, he never wanted — he never showed in the courtroom and seemed reluctant to say even in the interview that he had rage against the guy. Well, how can you not have rage against a guy who you are giving a 150 years to?

Interestingly, in a couple of weeks he is coming to this class I teach at Fordham and I am having him paired up with Ike Sorkin who represented Madoff. That should be sort of an interesting discussion about how judges decide. What would you, Ike Sorkin, do if you were the judge sitting in the case? Denny Chin, or Judge Chin, what would you do in the case if you were Ike Sorkin? And that’s kind of the discussion that’s going to go on. And both of them — I think he will draw out Judge Chin a little more than perhaps I did.

Jennifer Byrne: That’s a great opportunity for those students.

Joel Cohen: You have no idea.

Jon Amarilio: Yeah, that’s fantastic. Would you put that up on YouTube, I would want to watch it?

Joel Cohen: Well, no tapes in the —

Jon Amarilio: Make an exception bro. Another one of the interviews you did, you mentioned before Judge Posner talking about how judges bring certain biases and life experiences to the bench. One of the interviews you did was with former District Court Judge Vaughn Walker. He presided over again a myriad of high profile cases, including the Proposition 8 case in California. And our audience will remember that this was the case involving an anti-marriage equality ballot proposition that defined marriage as being only between a man and a woman and Judge Walker ruled that the law was unconstitutional as a due process and equal protection violation. But what didn’t come out until later, if you will forgive the pun, is the fact that Judge Walker is a gay man.

And when you spoke with him, what did he say about how that affected or didn’t affect his decision making in a case that really went to his core civil rights?

Joel Cohen: He actually said it didn’t affect him. Obviously that’s something you really need to think about. And he said, as ultimately came out when they — what happened is he said that the entire legal community and judiciary of San Francisco knew he was gay. He never came out and said I am gay, but everybody knew and he said anybody who didn’t know that who was in the system was living under a rock basically.

There was some view by the way I am sure on the part of the plaintiffs who were trying to hold the ban on same-sex marriage that they could count on him. He had once represented the Olympics against the gay Olympics in — there was a trademark violation challenging it and they felt, well, he is willing to represent the Olympics against the gay Olympics, he might be a good kind of a vote for us notwithstanding the fact that he might be gay.

But I asked him, so why didn’t you put on the record, if you thought they wouldn’t look to recuse you from the case because you were gay, because that was the word on the street that he was gay, why didn’t you just put it on the record and end it? And my sense of it is he was withholding on that question. He is a wonderful guy and he has just written a very kind review of Broken Scales that Jen is going to be asking me about.

But he saw at some point — he is a very smart guy and he looks like a Hollywood actor, I remember interviewing him in his law office at the Pillsbury Firm in San Francisco. And at some point I was just totally getting frustrated with him that he wasn’t giving it up and I said Judge, I am trying to get inside your head, and he said yes, I do know that Joel, but just remember there is only room for one of us in there.

And basically he was saying you can go up to the line just so far, but you can’t go over that line with me. That’s my story and I am sticking to it. Why didn’t he put his gay status on the record? I can only think that he was afraid that perhaps, first, he wanted to handle the case, but perhaps there might be a significant motion to have him recused and they lose the case. I don’t know that, he has never admitted it to me, and I don’t know if admitted is the right word, he hasn’t acknowledged it to me, but I don’t know if that’s the reason.

(00:15:05)

Jon Amarilio: And you hinted before that the plaintiffs probably knew that he was gay or almost certainly knew that he was gay.

Joel Cohen: He says so, yeah.

Jon Amarilio: Yeah. Do you think the thinking there is that, not just him, but judges perhaps are aware of some of their biases or at least the more obvious biases and will actually try to overcompensate by skewing the other way to prove that they are not biased?

Joel Cohen: Oh yeah, I think that maybe there was a concern that in — maybe the plaintiffs thought that he would bend over backwards in their favor because he wasn’t looking to make a public spectacle of the fact that he was gay. It’s so interesting, when I interviewed him, it must have been three or four years ago, the Supreme Court had not yet finally decided the gay marriage case. They decided his case based on a procedure that the State of California had not litigated the case, so there was no standing to contest it. But it’s so incredible that in the last six years how far the status of gays and gay marriage has changed in the United States.

And he was at the forefront. He is the guy who decided that first case and interestingly, David Boies and the former Solicitor General of the United States Ted, I am losing his name —

Jon Amarilio: Olson —

Joel Cohen: Ted Olson, thank you, tried the case together, which is an incredible combination. Those two guys were opposite each other in Bush v Gore.

Jon Amarilio: Right, yeah, that’s quite the pairing. It strikes me that what we are talking about ties in pretty well or rather it’s timely because of some of the attacks that we are seeing, particularly by the President on the judiciary about their fairness, their priors, as Judge Posner said, whenever a judge issues an adverse ruling against a President it seems he attacks them, accusing them of being biased.

In the case of, I think it was Judge Alonso, because it was heritage —

Joel Cohen: Curiel.

Jon Amarilio: Curiel, thank you, saying because he has Mexican heritage he couldn’t be objective, because of some of the things that the President had said about Mexicans during the campaign or because of the court they sit on and the perceived political leanings of that court, in the case of the travel ban case. What do you make of that phenomenon of the increasing acceptance of politicians attacking judges and their honesty?

Joel Cohen: I did a program in Pennsylvania, to Pennsylvania state judges; there were about 350 in the room and I was the only non-lawyer I think in the room, and I raised a hypothetical to the panel I was moderating that how could it possibly be that if the President is a litigant before them, after the kind of attack he has made or attacks he has made against the judiciary, and they all felt somewhat same, that they could keep it out of their consciousness.

I am not so sure. I think Judge Posner is probably right about that. Although Judge Posner would say I won’t be — and basically said to me, I interviewed Judge Posner for the ABA Journal, Judge Posner said I don’t think judges are that petty. I wouldn’t be bothered if somebody attacked me. And I said to Judge Posner at the time, are you self-aware at this moment?

Jon Amarilio: He is known for having a bit of a temper himself I suppose. I have always found that people who haven’t had to argue in front of him have more favorable views of him than those who have.

Joel Cohen: That may be.

Jon Amarilio: Do you think that those — the kind of criticisms that Judge Posner, observations, criticisms, however you want to define them, that Judge Posner has put forward about the judiciary feed into some of those kind of corrosive influences that the President has put forward about the rule of law?

Joel Cohen: Actually I don’t. I don’t think that Posner’s readership is the same crowd that’s supportive of the President. I think he always appeals — Trump always appeals to his base. I don’t think his base — not that they are not as intelligent as the rest of the populous, but I don’t think they are reading Posner’s things and Posner’s things don’t get that kind of widespread audience to influence the body politic as much.

Jon Amarilio: You don’t think Joe the Plumber is reading the ABA Journal or anything like that?

Joel Cohen: Not on a regular basis. I haven’t heard his name in a while.

Jennifer Byrne: Is he still out there?

Jon Amarilio: Hot takes people, Joe the Plumber is back. Okay, I think that’s probably a great place to take a break. We will be right back.

Joel Cohen: Great.

[Music]

(00:19:59)

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[Music]

Jon Amarilio: And we’re back. Jen, tossing it over to you.

Jennifer Byrne: So Joel, I’m going to be talking to you a little bit about your more recent book called, ‘Broken Scales: Reflections on Injustice’, and that was actually just published this year in 2017, right?

Joel Cohen: Yes.

Jennifer Byrne: The book basically covers ten interviews that you conducted with various people and surrounding stories that are focused on justice or I guess, injustices that occurred in those instances and it covers the time-span of the past 60 years. What inspired you to write this book?

Joel Cohen: Well, I thought I looked at the judiciary in blindfolds off and now let me look at where the judiciary may have gone wrong or some aspect of the criminal justice system has gone afoul, and let me look at that, and hopefully look at it not from the typical view you would expect if you’re looking at a justice, you look at ten guys who were taken off a death row or weren’t taken off a death row or executed, and Brady material wasn’t turned over to the prosecutor or something wrong happened in the case.

Let me try to look at it from different perspectives; in fact one of the perspectives, I wanted to look at it from, you’re familiar with the Central Park five killing, rape rather, in New York where ultimately they were exonerated even though President Trump when he was still a real estate developer, thought those guys who raped that woman, who were convicted of raping the woman should get the death penalty and that’s been thrown up to him in debates.

Jennifer Byrne: Right.

Joel Cohen: Yeah, I wanted to look at that case from the perspective of the prosecutor, do you think that an injustice was committed at your doing and why not she was unwilling to do it. So, I was looking at it not only from the perspective of victims of the crime, but witnesses, judges, prosecutors or defendants.

Jennifer Byrne: Right, right. So from all angles, I guess.

Joel Cohen: Yes.

Jennifer Byrne: What drew you to the stories that you selected that you narrowed it down to ten and you did sort of an interview style similar to what you did in the prior book, what made you choose those stories?

Joel Cohen: So, it was sort of different. In terms of the judges, I was able to get pretty every judge who I wanted to interview to a great interview. The only two judges who wouldn’t agree to interview by the way are one Roy Moore, who was running for the United States Senate in Alabama, who was the chief judge of Alabama at the time because that would be –

Jon Amarilio: He is a special.

Joel Cohen: Yeah, he is a special case.

Jon Amarilio: Special kind of crazy.

Joel Cohen: And the woman, Susan Webber Wright, who sits in Arkansas, who — she sat on the Bill Clinton case, she was willing to be interviewed but not in the Clinton case because she thought it might still have impact. She knew that Hillary Clinton would be running for president.

It was more difficult to get people involved in injustices. Interestingly, in some cases where defendants had been exonerated, they were sort of hooked up by their lawyer and wanted potential book rights and stuff like that. They didn’t want to give up their story here.

So it was harder to get people or some people, the thing was too painful for them to go into the injustice again. And some of them I sort of persuaded you need to tell your story; whatever that story might be, you need to tell your story, and one was the case of this prosecutor in Shreveport, Louisiana, Marty Stroud who basically put a man on death row for 30 years.

Ultimately, he got exonerated, 30 years death row, never knowing when they’re going to pull the trigger on you. And this guy is living with the pain of that of having basically killed another man. And I asked him — now then the guy got exonerated and ultimately after he got exonerated, he died six months later for a cancer that was never detected.

I asked Marty Stroud, how is your life every day? He says, I wake up with a cold wind blowing through my gut every single day. A hole in my gut with cold wind, north wind blowing through it. And he speaks in such morose terms about it. So he’s sort of a classic about injustice, but not from the perspective of the victim, from the perspective of the guy who victimized him albeit unintentionally.

Jennifer Byrne: Did you feel like that was a common theme and a lot of the stories that you talked about was that the injustice that you’re telling a story about was sort of a defining moment in their lives?

(00:25:03)

Joel Cohen: Well, and that was part of the thing, how do they deal with the fact that that injustice was accomplished. There was another guy named Ken Ireland, who was prosecuted when he was around 20. He was in jail for 20 years for a rape murder that he didn’t commit. He’s in jail every day, a total innocent. He was from the wrong side of the tracks but a total innocent, never convicted of a crime, never involved in any crime other than being charged with and convicted of this.

The guy goes through life in jail and tells you in jail, even though he’s a straight guy, he’s never done anything wrong, he has to live in the jail as if he is a hoodlum and a thug. Because if he doesn’t show that he’s a tough guy who actually pick fights to show who he is as a strong guy, he’ll get picked on.

And he comes out of the jail, it’s extraordinary. He gets exonerated by the Connecticut Innocence Project, who do all the Innocence Project through extraordinary work and his family and the defense lawyers take him to a restaurant. He hadn’t been in a restaurant in 20 years and he goes to the men’s room and he walks past a wall, that’s all mirror and he’s looking at it. And the guy’s looking back at him and he says, who’s that old guy who is staring at me?

I said, what are you talking about, you’ve seen a mirror. He says, there’s no mirrors in jail. They give you some kind of a translucent device with which to shave. He hasn’t seen his face in the years of his aging from age 20 to 40.

Jennifer Byrne: So he didn’t recognize himself.

Joel Cohen: Didn’t recognize himself, it’s just, you want to cry when you’re hearing this story.

Jennifer Byrne: Yeah.

Joel Cohen: There’s another story in there about a guy named Abdallah Higazy. Abdallah Higazy was living — he was an exchange student from Egypt. He had been in the Egyptian, not the Air Force but an analog — not an analog, a part of the Egyptian Air Force and he’s living at the Millennium Hotel. Millennium Hotel still stands, it’s right opposite the World Trade Center.

So the hotel is evacuated on 9/11, okay, and so he comes back, he gets a call to pick up his belongings a couple of months later when the dust is settled and the hotel is reopened and they say, okay, you can pick up your belongings, you have a Quran — he is Muslim. You have a Quran, you have a prayer rug, you have some clothing and you have a device by which you can talk to planes from the ground. He said, I don’t have such a device, I don’t know what you’re talking about, it’s not me, you’re wrong. Well, an FBI agent down the hall wants to talk to you.

They take him into custody as a material witness before Judge Rakoff and the guy says, I want to take a lie-detector test. I had nothing to do with this. And he has a court-appointed lawyer. There’s always a distance between a client and a court-appointed lawyer because you don’t completely trust him —

Jennifer Byrne: Right.

Joel Cohen: — besides he’s a Muslim from another country, and the guy says, just don’t take a lie-detector test. Judge Rakoff says, don’t take a lie-detector test. He says, I insist. He goes into a lie-detector room with the FBI and the FBI agent says, let’s cut the crap over here. We both know you’re guilty and we know where your brother is Upstate New York and we know where your family is in Egypt, and you know what’s going to happen to them, if you don’t straighten this out real quick and confess.

And the guy confesses that that device was my device. They prosecute him from having made a false statement to the FBI. And then he’s in jail, every day, he’s walking around with guards behind him and his handcuffs on or chains behind his back. And every single day, he’s considered the 20^th terrorist. He’s the guy who talked to the planes from the ground.

Okay, they think the only living 20^th terrorist because all the others died in the crashes. And then two months later into his stay, he gets called to the warden’s office. He says, why there are no guards, why there are no chains, why there are no handcuffs? He said, oh, didn’t you find out? Some American Airlines pilot came forward and acknowledged that the device was his.

I mean, I’m thinking about I’m in New York or you’re in the cosmopolitan town here, the kind of stuff that happens in Shreveport, it happens in Connecticut, doesn’t happen here. Well, it does happen here.

Jennifer Byrne: In false confessions. I mean I feel like now with different stories that are coming out like in the making of the murder case with Brendan Dassey, people in the public are becoming more-and-more aware that this is a thing, so to speak, what are your thoughts on false confessions and did you encounter a lot of that when conducting these interviews or working as a prosecutor?

Joel Cohen: I didn’t find —

Jennifer Byrne: Or have your attitudes changed?

Joel Cohen: Yeah, I didn’t find it so much as a prosecutor. Barry Scheck is a close friend of mine and he’s done a just extraordinary work and I’m used to listen to his stories until it became too painful to listen to some of the stories he tells.

(00:30:03)

He’s literally taken 40 people off a death row, not Playboy death row who were the victim of an injustice because the police committed misconduct, there’s a Brady violation, totally innocent people. Those are the ones that he’s represented forget about all the others that must be out there.

I remember he told a story — it’s an extraordinary story that I will share with you. He was taking a guy off a death row in Texas. Bush was President and I think the death sentence was imposed when Bush was the Governor of Texas where they had the highest death rope cases or sentences to death in the country, and so he was going to have — take this guy out at the jail, bring him to the Governor’s mansion for a press conference to basically get rid of the death sentence.

And so they are driving along the road and there’s a church off to the side and the guy says, Barry, can we stop for a second, I want to go to the church? He says, why do you want to go to church, we got to be at the press conference? He says, I want to go there to confess. Barry says, please, anything, just don’t use the word “confess”.

Jennifer Byrne: He just couldn’t — He just can’t hear, he can’t hear that word.

Joel Cohen: Can’t hear.

Jennifer Byrne: He is portrayed in the movie ‘Conviction’ with Hilary Swank, have you seen that one?

Joel Cohen: I haven’t seen it but he’s just —

Jennifer Byrne: Has he ever talked about his portrayal in that to you?

Joel Cohen: Too much actually but —

Jennifer Byrne: It’s a great movie and he is well-portrayed, he should be happy with it.

Joel Cohen: He is well-portrayed, he is —

Jennifer Byrne: Peter Gallagher plays him, because you haven’t seen it. Well, that’s —

Joel Cohen: So, it’s interesting, when we talk about the confessions and the total innocence, one of the questions I sort of raised in the book is whether there’s an injustice even if the person is not innocent, if the person is wrongly convicted because the prosecutor has done something horrible or deliberately or the police have done something horribly or deliberately, is there an injustice in any event because the system is so malfunction to even convict a guilty person, and I think we are lawyers, so lawyers sort of take liberties sometimes with how they view the law, but I think their injustice is there.

The public for the most part doesn’t care. If the guy is guilty, he is guilty, so some prosecutors screwed around, the police screwed around and they moved the evidence around. I mean it’s sort of —

Jon Amarilio: Ends justify the means.

Joel Cohen: Yeah, like OJ Simpson is the classic case of it. I mean, the White public feels that he was guilty, the Black public at the time thought he was not guilty, mainly because the Black public knew at the time that the police were capable of the conduct that the police in OJ Simpson case.

Jennifer Byrne: But do you feel like people’s attitudes in that regard are sort of changing? I mean maybe I have been so indoctrinated because I did an internship with the public defender’s office and I started to see behind the curtain a little bit more and as lawyers where I think we look at things differently like you said, but I feel like the public’s impression is changing a little bit and maybe it’s just in general because cynicism is on the rise towards the government in general but do you feel like that’s changed?

Joel Cohen: I don’t know, I am wondering whether what’s currently going on in the country with these protests with the NFL and the NBA and all that. It’s sort of interesting, I have noticed that the NFL is involved and the NBA is involved, but not so much baseball yet because baseball is in as black a sport as football or basketball, and I wonder if it’s going to move in that direction that Hispanics so far haven’t had that groundswell that that fortunately the African-American community has had, but it’s going to be interesting how the public reacts because it’s not exactly clear what Kaepernick’s protest has morphed into. I don’t know what the protest is, I don’t know why people are taking any, I am all in support of it, not in great support of it that I have been doing it in front of the flag, I like what the Dallas Cowboy team did last night doing it before the National Anthem, but I am wondering where that protest ultimately leads, is it just against the President or it’s against the criminal justice system and how it treats or how the country treats Blacks?

Jennifer Byrne: Well, I have heard some interviews of athletes who have mentioned different components of the criminal justice system, whether it’s just street interactions with police or the way the court system is handling cases, it’s starting to come up as an issue; but I was sort of thinking about, I mean, not to keep referencing these pop culture notions but I think about the making a murderer case or even the jinx that was on HBO.

(00:34:51)

And I think just the general public is walking away from watching those, feelings so shocked that this is going on in the criminal justice system and it really does get to what you are talking about, which is, whether or not the person is guilty or innocent, they are basically being steamrolled in the situation or in the case of the jinx I think people were in sort of a weird way or maybe some people were happy to see Robert Durst walk away because he had a good lawyer who put on a good defense for him and were I guess sort of relieved that he was able to be successful or brought up a conversation about whether he was successful in that case because he had the means and whether it was always that fair.

Jon Amarilio: But if I can — I am hearing a distinction I think or rather a disconnect and what you are saying I agree with it, but I think there’s probably a distinction between growing public cynicism in this system, skepticism toward the system and a belief in the importance of process which strikes me as something else.

Jennifer Byrne: Well, they are distinguishable but I think what I am getting at is that because people are having an increasing cynicism, the unintended result perhaps of the cynicism is to be cynical of all systems and maybe that’s why people are opening their eyes a little bit more to the concept of injustice and justice, and whether or not somebody who is guilty is receiving a fair shape.

Joel Cohen: Well, it’s sort of interesting the entitled ‘Blindfolds Off’ for the other book that we were just talking about probably could have applied to ‘Broken Scales’ also Alan Dershowitz was — he’s probably the most famous lawyer in the United States, he was kind enough to give me a blurb for this book and he said, the blindfolds off which we generally think of that the blindfolds being on Lady Justice has actually been on the community, that the community has been blinded and now we are taking it off so that the community can now see what’s going on in that case, in the instance of judges, but also in terms of injustices and taking the blindfolds off might show the public what’s really going on because too often the public watches law and order or blue bloods and whatnot and sees justice or injustice from a kind of a warped perspective that that’s not what’s really going on.

Jon Amarilio: And that’s exactly the kind of insightful and ambiguous comment, I think we should probably end before we take our next break.

Joel Cohen: Thank you.

Jon Amarilio: Thanks Joe.

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So before we wrap up today we are going to play a game, we like to call, ‘Stranger Than Legal Fiction’. Each of us or rather only me, Jen didn’t do her homework today —

Jennifer Byrne: Oops.

Jon Amarilio: — has done some poking around the Internets like any judge going outside the record would, and we found some of the strangest laws that are still on the books in the US or rather I did, Jen?

Jennifer Byrne: You can get all the credit, Jon.

Jon Amarilio: Yeah, yeah, yeah.

Jennifer Byrne: Take it.

Jon Amarilio: Alright. So, Joel, just so you know how it works, I am going to summarize a real law and then another law that I just completely made-up and then I am going to pull you and Jen to see if you can distinguish strange law from legal fiction. Everybody ready?

Joel Cohen: Okay.

Jon Amarilio: Okay.

Jennifer Byrne: I am ready.

Jon Amarilio: Option number one, according to California’s Fish and Game Code any person may possess any number of live frogs to use in frog jumping contests, apparently that’s still a big sport; but, if such a frog dies or is killed in the heat of the sport it must be immediately destroyed and cannot be eaten for any purpose, so you can’t take it to your favorite local French spot and offer it up to the fresh, say, guys, I just killed this myself, will you cook it up so that is illegal or is this? According to Florida’s Fish and Wildlife Code it is legal to wrestle an alligator provided you have a proper County permit, but it is illegal to use a choke hold on the alligator when doing so. Further, if the alligator is found to have died from such an illegal hold, the violator is subject to a fee of up to $1,000 and six months in prison.

Joel Cohen: So, the question, which is a real law of those two?

Jon Amarilio: Correct.

Joel Cohen: The first one is a real law.

Jon Amarilio: Jen?

Jennifer Byrne: I am going to go with the second one as a real law. I feel like the frog legs, I mean, people want to eat those, I don’t know why they would outlaw that.

Jon Amarilio: They are surprisingly good. They taste like buffalo —

Jennifer Byrne: And I also feel like in Florida they would have some rules about how you can treat an alligator during a fight.

Jon Amarilio: Yeah, Joel, but you are pretty certain though, why do you think the first one is real?

Joel Cohen: Because I’m flipping a coin, that’s why I’m so certain.

Jennifer Byrne: But he is confident.

Jon Amarilio: And do you know what? That’s a good coin, you should hang on to it, you are absolutely right, the California law is real.

(00:40:12)

Jennifer Byrne: Oh man.

Joel Cohen: Is it enforced?

Jon Amarilio: That I have no idea.

Joel Cohen: That would be interesting to see if somebody claimed discriminatory enforcement if he’s the first guy who was ever prosecuted under that law.

Jon Amarilio: Yeah, true, it’s kind of — maybe they could claim that it’s an insult to their French heritage.

All right, and that’s our episode for today. I want to thank our guest, Joel Cohen, for joining us and reminding us that our careers in law have actual meaning and are defined by the arbitrary and capricious whims of modern-day Delphic oracles.

I also want to thank everyone who makes this machine run including my co-host today and our executive producer, Jen Byrne, as well as our sound crew, Ricardo Islas and Steve Weirich.

Remember, you can follow us and send us comments, questions, episode ideas or troll us on Facebook, Instagram and Twitter @CBAatthebar. Please also rate us and leave us your feedback on iTunes, or wherever you downloaded your podcast, it helps us get the word out.

Until next time, for Jen Byrne and all of us here at the CBA, this is Jon Amarilio and we will see you @theBar.

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