Litigation Counsel of America November to December 2009.
1. When did you know that you wanted to become a lawyer?
When I was a graduate student at the London School of Economics. My father was a distinguished graduate of the United States Military Academy at West Point, New York, my birthplace. While a cadet, he took a course in law. Dad always wished he had gone to law school. He always encouraged me to consider law because he felt it spanned so many fascinating subjects.
My uncle was also a West Point graduate and lawyer. He taught law and ran the legal department at the United States Air Force Academy, Colorado Springs, Colorado. He also became Associate Dean of the University of Denver School of Law. He wanted me to attend his law school.
While earning a Master of Science degree at the London School of Economics, I decided to enter law school. My parents had recently moved to Southern California and I had a friend in London who attended the University of California’s, Hastings College of Law. To my uncle’s chagrin, I decided not to attend the University of Denver Law School and chose to benefit from the University of California’s extraordinarily inexpensive law school tuition (a thing of the past). After I entered Hastings, I quickly dropped out with a one year’s leave of absence. During the year off, I worked at a restaurant and consulted with some major figures in the world of international journalism. I was offered some interesting opportunities but, upon reflection, decided to reenter law school.
2. At what point did you realize that criminal defense appealed to you more so than other areas of the law?
I was one of those “lost souls” who spent considerable time wandering through the wilderness before finding my calling. In order, I became a civil litigator with a large, national law firm; a deputy district attorney; assistant to the president of an oil company subsidiary; a transactional lawyer; a civil trial lawyer (business, entertainment, legal malpractice) and finally, a criminal defense lawyer. During one illuminating moment, approximately twenty five years ago, I realized that civil rights and criminal defense were for me. While working as a civil trial lawyer, I began to voraciously consume books about criminal defense. I began watching criminal trials and ordering tapes and transcripts of famous opening statements, closing arguments and witness examinations. I still do it.
3. Your father was in the military. Was there anything about being the son of an Army major that influenced you with respect to your deep convictions about the fair administration of justice in our society?
My father was, to me, special and unusual. At West Point, he was an all American football player. Although 6’4″ in height, he became a parachute battalion commander in some of the worst fighting in the Pacific theatre during World War II. He received orders to command the first parachute jump into Japan before the atomic bomb was dropped. He thought this was his death warrant because he knew anyone in that jump would perish. After atomic weapons ended the war, Dad stood close to General McArthur on the Battleship Missouri for the Japanese surrender. A twenty three year old major, he was in charge of McArthur’s security. He served in the Tokyo occupation, and later was an assistant football coach at West Point.
When my Dad decided to resign from the service and enter the restaurant business with my grandfather, he refused to resign until he received his next set of orders. If the orders were for him to fight in the Korean War, he intended to do so. When the orders were to move to Germany, a peacetime assignment, his value system permitted a resignation.
My father influenced me in many ways. Despite gruesome war time experiences in the Philippines (lost behind enemy lines, hand-to-hand combat, led the successful liberation of Japanese prison camps, etc.), he always had Japanese friends. He was a great example of compassionate, humane, honorable, principled living. He was a great champion of the underdog and despised arrogance, pomposity and snobbery. Obviously, courage and sacrifice were important. Dad greatly affected my interest in fairness, equality and justice. While a former president of the West Point Society of New York, he published a letter in the Wall Street Journal condemning the way the United States was conducting the Vietnam War. This offended and upset many of his colleagues.
4. Your keynote speech at the 2007 LCA Fall Conference and Induction of Fellows in Scottsdale was made without a single note, and completely mesmerized the audience. Therein, you spoke from the heart about what diversity means to you. Can you briefly describe the importance to you of diversity within the profession of law and the administration of justice?
Diversity is a living, breathing thing. To me, diversity encompasses a belief that all of us have equal value, no matter what ethnic, cultural, religious, political or sexual preference we represent. Diversity affirmatively celebrates our differences. It cherishes the knowledge, wisdom, friendship and stimulation we garner when we embrace others.
Diversity is a concept that challenges human nature. I believe that most human beings are programmed, unconsciously and consciously, to devalue others. Human beings seem to have a perennial need to believe they are better than someone. If this is true, it is axiomatic that the easiest person to devalue is someone different. The process can be spontaneous, no more than a reflex. To challenge, question and counteract this process can be difficult.
Anyone who agrees must consider the challenge of diversity within the legal profession and the justice system. Both operate through various organizations, small and large. In any human organization, the need to devalue those who are different is present. The champion of diversity is constantly on guard and ready to challenge this process. We still have elite organizations in the legal profession which clearly place higher value on white male practitioners. Statistically, women have a tougher time making partner than males. I rarely see an Asian criminal defense lawyer. Only recently did a Latina make it to the Supreme Court. There are many aspects of the legal profession and justice system which appear to marginalize women, Arab Americans, Asian Americans, African Americans, Native Americans, Latinos, Gay Americans, et al.
The process of jury selection often encompasses judgments about who might favor or disfavor prosecutors, defense attorneys, witnesses and defendants based upon racial and ethnic stereotypes. To find a balance between the hard realities of the courtroom and the ideals of diversity is a challenge. Should we be realists or idealists when we defend people’s freedom? This is a very tough question.
5. You have had in your career the unique opportunity of having represented a variety of celebrities. What challenges does a lawyer face with celebrity representations that do not exist with non-celebrities?
First of all, many celebrities have an unrealistic view of the courtroom. Because they have seen trials on television and in film, they think they are experts. They don’t realize that real trials operate very differently – even counter intuitively – to what they believe and imagine. To convince them that they are pure novices is difficult. Celebrities operate with a different value system. What they consider true “performance” is often a trial disaster waiting to happen. Effectiveness in the courtroom requires a strong measure of humility, decency, respect and patience.
For example, I have found that talented salespeople and politicians tend to do very poorly on the witness stand. Their successful performance outside the courtroom deceives them into wanting to utilize the same practices at trial. They usually do very poorly without even realizing it. Narcissists not only tend to do very poorly, but also completely misperceive their negative effects on the jury. While they celebrate their brilliance, the jurors scowl!
Celebrities tend to have numerous sycophants, enablers and losers in their entourage. These sundry types have a vested interest in keeping the celebrity suspicious in order to create a need for themselves. They can be a tremendous problem and continuing distraction.
Finally, celebrities have an unrealistic view of how the media affects jurors. They are convinced that whoever wins the public relations battle, wins in court. Often, the very opposite is true. While public relations and media manipulation may bring benefits, trials are won in the courtroom before twelve intelligent, instinctive and committed individuals.
6. In the legal profession great lawyers more often than not develop their exceptional litigation skills from mentors. Who would you say were your mentors as a young, up-and-coming trial lawyer, and how do you see their traits reflected in your own style?
I tried civil jury cases before criminal. I was introduced to the civil courtroom as an associate who assisted senior partners. None of these lawyers were particularly talented or distinguished, in my opinion. I don’t consider them mentors.
I began trying criminal jury cases without anyone in the courtroom to “show me the ropes.” Outside of the courtroom, I had a wonderful mentor. My dear friend from law school, Jennifer Keller, was always there to advise, guide and assist me as I sharpened my skills. Jennifer has a remarkable record in court. Her skills as a criminal defense lawyer are unparalleled and she recently won a $350 million verdict in a plaintiffs case. This is the largest verdict in the country this year. During the Michael Jackson trial, I consulted with her on a regular basis. She is a fabulous lawyer.
Twenty five years ago, I began to compulsively accumulate books and texts by and about famous lawyers. I would read and reread these books as I grew. I consider these lawyers and authors to be my mentors as well. Earl Rogers, Clarence Darrow, Louis Nizer, William Kuntsler, Edward Bennett Williams, F. Lee Bailey, Melvin Belli, Jake Ehrlich, Charles R. Garry, Thurgood Marshall, Gerry Spence, Joe Jamail, Johnnie Cochran, Roy Black, Vincent Bugliosi, Irving Younger, Herb Stern, et, al. – – they, and others, played a significant part.
At this point, I see myself as having my own style. I learned many years ago that one has to be oneself in court. If you don’t know who you are, meet the challenge of learning. I honestly don’t know if others’ traits are evident in my conduct.
7. It must be painful to see your personal friend Michael Jackson maligned so often in the news. What can you tell us about Michael as an individual that adequately puts into perspective his true personal character?
Michael Jackson was one of the nicest, kindest people I ever met. He truly believed that he was uniquely positioned to create a better world. He hoped to do this through music, art, love and good deeds. He was very vocal about the cruelty and trauma of missing one’s childhood. Michael rehearsed until two and three in the morning from the age of seven. He derived tremendous pleasure from seeing children happy.
Michael did not like to hang out at clubs or celebrity parties. He traveled around the world to shed light on the plight of the world’s children. For many years, he wouldn’t do a concert without visiting a children’s hospital. He donated many millions of dollars to these causes.
He was very human. To be the world’s best known celebrity brought benefits and burdens. He attracted one mediocrity after another and fell prey to con artists and charlatans. Michael suffered isolation and loneliness. But he left a great legacy and changed the planet forever.
8. Was Michael, in your estimation, simply a more complex person than most people can comprehend?
You can’t be the world’s greatest musical genius without a certain complexity. Geniuses feel, intuit and perceive forces and rhythms that the rest of us miss. His wistful, idealistic visions often clashed with the cruel planet he populated. I met him during the worst period of his life.
9. Of all the accomplishments in your career, what do you consider your greatest achievement?
If I can spread some goodwill and kindness in a selfish world, that’s enough for me.
10. What is your greatest regret?
Not maturing faster.
11. Jury selection is always a difficult task during trial and can be made even more difficult in a high-profile case such as yours involving Michael Jackson. How did you go about selecting a jury for that case? What were the various factors or personality traits you considered in prospective jurors that you thought might allow them to better understand your argument?
I can talk at length about this subject. I had never tried a case in Santa Barbara County, which is north of Los Angeles. The media portrayed the Santa Maria community as conservative, narrow- minded and ready to lynch Michael Jackson. I didn’t buy it.
I had a jury consultant who provided me with some helpful data. Although interesting, I promptly rejected most of it. Having hung around bars and restaurants in Santa Maria before the trial, I decided that the local jury pool would be conservative, law and order minded, independent and somewhat libertarian. The data said we should stay away from women jurors, in general. Instead, I chose as many women as possible for the jury.
I had to consider who would be most receptive to my efforts at humanizing Michael Jackson. He was a musical genius who “danced to his own drummer.” The prosecutors were trying to viciously attack his sexuality, e.g., they alternated between claims that he was gay and asexual, lifestyle and values. I have always found women, in general, to be more emotionally flexible and less harshly judgmental than men. Of course this is a very simplistic generalization. I also had to consider who would look skeptically at the accusers and prosecutors. Finally, one had to consider who would relate to the individuals on our defense team. Intuition was our greatest guide.
I bushwhacked the prosecutors on race. I believe they gauged their jury selection strategy around a belief that the defense would do anything to place an African American on the jury. They were so confident in their victory that they assumed I wanted any black juror for a possible hang. Their jaws dropped when I accepted a panel with no African Americans and left five peremptory challenges on the table. Statistically, I could have had one black male on the panel if I exercised all of my challenges. The prosecutors had already removed two black women jurors over my strong objections.
My trial approach was that Michael Jackson brought all races together. He was the scion of a prominent black family with two white and one Latino child. Evidence showed that he hired many Latino employees and was loved throughout Asia, Europe, the Middle East, South America, Africa (the entire continent), etc. The prosecutors’ narrow perspective on race, as well as the world of Michael Jackson, hurt them considerably.
12. What is your motto?
In a cruel, hard world, sprinkle some goodwill wherever possible.
13. I understand that each year you participate in pro bono work representing death row inmates. Could you please explain how you first got involved in that endeavor and your opinion of the importance of lawyers engaged in that type of voluntary representation.
Pro bono work is very important to me. I have been doing it for twenty five years. I helped start the Mesereau Free Legal Clinic in South Central, Los Angeles and I have worked at various free clinics for many years. Each year, I march through the projects with the Women of Watts and their children against gang violence. I assist various organizations that deal with children’s causes, women in drug recovery and issues concerning black males in the justice system.
Approximately twelve years ago, I began defending death penalty cases, pro bono, in the Deep South. I litigate capital murder cases at the trial level. I do not do post conviction work, because my talents and interests lie in the courtroom.
When I informed others about my interest in defending death penalty cases in the South, I was fortunate enough to meet my dear friends and fellow colleagues from Birmingham, Alabama: Charles Salvagio and Wilson Meyers. Our first case was the defense of a homeless black man charged with murdering a beautiful white woman from a prominent family. He was acquitted. We also defended an individual who had spent six years on Alabama’s death row after being convicted of a double murder. When his conviction was reversed on a technicality, he hired Mr. Salvagio who brought me in. He was acquitted. We have won numerous other capital cases for which I am very proud. I don’t know any other lawyer who regularly travels to other parts of the country to try capital murder cases pro bono. I incur all of my costs, including travel and lodging. I do not accept any legal fees. Since becoming well known, many lawyers have asked if I would bring them along. Because of a long standing, tight relationship with Charles and Wilson, I declined these offers. I often question whether these overtures are sincere and principled, or a simple wanting to follow in my footsteps.
14. What is your greatest professional regret?
Not finding my calling at an early age. But, in all candor, I’m not complaining too much!
15. Who are your favorite writers? What is it about the writers themselves or their work that piques your interest?
Literature: Albert Camus – – sensitive, clear, honest, compassionate. He never forgot his humble beginnings. After becoming a worldwide success, he refused to live a snobbish existence with the Parisian intelligentsia.
Fyodor Dostoevsky – – deep insight into the ambiguities and contradictions that underlie human behavior. – – fervent concern for how morality and justice succeed or fail.
Mark Twain – – wit, humor, keen perception of human foibles and charades – – enjoyed life!
James Baldwin – – lucid, provocative literary artist – – explored reality v. illusion on race, equality, identity, violence, slavery, liberation, freedom, anger, redemption.
Legal: Final Verdict by Adela Rogers St. Johns. A passionate description of one of the greatest trial lawyers by his adoring daughter. It is my favorite book about a trial lawyer.
Anything by or about Clarence Darrow.
Numerous books about the O.J. Simpson case.
Self-Help: Dreams Into Action by Milton Katselas.
Various books on philosophy.
16. You’ve undoubtedly had a lot of great moments at trial; tell us about the worst moment you’ve experienced during trial?
Those days when everything seems to go wrong. Your client testifies horribly and, while listening, your heart sinks into your stomach; you notice that you have socks that don’t match and your key witness disappears. This has happened more often in my career than I wish to acknowledge.
17. What are your favorite activities in your leisure time? That is, assuming you have leisure time.
I like to read, see friends, take long walks and drink coffee.
18. As the saying goes, “People’s two greatest fears are death and public speaking.” What is it that you think makes you such a great public speaker? How do you seek to grab and hold the audience’s attention?
I don’t know that I am such a great public speaker. I guess I will take your word for it! As far as I know, I try to speak from the heart and be myself. Before starting any presentation, I spend a lot of time mulling over my feelings, history and experiences on the subject. I don’t memorize.
19. What is your favorite lawyer movie?
To Kill a Mockingbird.
20. How would you like to be remembered?
I haven’t given this much thought. Are you trying to make me depressed? (!!) Decent, honest, made a positive contribution.