Giuliani really has a talent for putting defense arguments as unconvincingly, unappealingly, and suspiciously as possible.
If his son were a Manhattan gynecologist he’d go around saying “my boy spends his days fingering women near the park.”
No seriously. If Rudy were defending someone at trial he’d tell the jury “Ladies and gentlemen, in America we believe it’s better for ten crazed child stranglers to go free [gestures broadly at his client] than one innocent man be imprisoned.”
Judge: “......this is a tax case”
Judge: Mr. Giuliani, how does your client plead?
Giuliani: Not guilty! My client has no idea how drifters got in his crawlspace.
Judge: well, fine, but he’s charged with securities fraud.
Giuliani: he doesn’t know about the Amazon stock
Judge: AT&T stock
Giuliani: or that
With the Manafort jury out, it's time for a story of the two most magnificent jury notes I've ever seen. /1
/2 Jury note one: maybe 10 years ago. My partner is trying a case against the SEC. The SEC lawyers are . . . well let's use "confident" as the diplomatic term. They are contemptuous of our case, particularly the lead attorney.
/3 Four days into the trial the jury sends out a note "Judge, can you please make Mr. [senior SEC attorney] stop staring at us? It's making us uncomfortable."
SEC attorney was somewhat less "confident" after that. (Partner won.)
Watch for a variation of the cockroach speech in Manafort's closing argument, with Gates playing the role of the cockroach?
What's the cockroach speech?
/2 "Ladies and gentlemen, you've seen that the government's star witness is a thief, a liar, a thoroughly dishonest person. The government wants you to ignore that. The government wants you to believe parts of what their witness has to say and ignore his past lies."
/3 "Imagine you are at your favorite restaurant. You order the pasta. When it arrives, the beautiful plate of pasta has a cockroach right in the middle of it.
Tell me. Do you send the plate back to the kitchen, and leave? Or do you just eat around the cockroach?"
Ok. So. Why would the Manafort defense team not put on a defense, and how unusual is it?
It's not unusual at all. It's common. Here are some possible reasons why. /1
/2 Remember it's the prosecution's burden to prove things beyond a reasonable doubt. When the defense puts on a case, there's always a subtle tendency for the jury to start putting a burden on the defense, which you don't want.
This fascination with "is there a tape of Trump using a racial epithet" is the ultimate in Trump-era media onanism. No outcome of the inquiry would change anybody's mind or add any meaningful data about the man . . . ./1
/2 Everyone who would care if he's used racial epithets (and, come on, OF COURSE he has) already treats him like somebody who would, and everyone who supports him already doesn't care. It's all priced in to his support and opposition already.
/3 I want to still believe in my fellow citizens, like the people who are responding to this saying that Trump using a racial epithet on tape would FINALLY be the thing that matters to his supporters.
/2 We don't know why Peter Strzok was fired. We have only his lawyers' claims. Eventually we may have a memo about his firing, which may or may not tell the truth about why he was fired.
But for the sake of this analysis, let's assume he was fired for anti-Trump texts.
/3 So. Your private employer can fire you for your speech, absent a contractual provision or state or local law that prevents them. Private employers aren't bound by the First Amendment, at least until the Protect Proud Boys' Jobs At The Dollar Store Amendment gets ratified.
Okay. Yes, this story is of obvious interest to me, and yes, adoptive parents have to be very proactive with their kids’ citizenship. BUT. Not every immigration story is a “OMG RACIST TRUMP” story.
/2 This one has the hallmarks of bureaucratic incompetence rather than malicious policy change. We encountered delays and bizarre denials and various idiocies during our adoptions in the Bush and Obama administrations. Sometimes it’s systemic incompetence and not deliberation.
/3 (example: we found that whether our adopted children could get social security numbers depended on which day/location/employee we asked. Better to go another day than argue.)
Here's a "perjury trap" explainer, because it's trending, and because dumbass sentences about it are falling out of people's head-holes
YOU MADE ME DO THIS I HOPE YOU'RE HAPPY
/2 I begin, as you want and expect, with pedantry. A "perjury trap" is narrow -- it's when the government subpoenas you to the grand jury not to gather evidence, but to catch you in perjury and prosecute you for it. As a defense it's rarely successful. openjurist.org/933/f2d/793/un…
/3 Colloquially, people use "perjury trap" to refer not just to grand jury subpoenas, but any time that the government seeks to question a witness in hopes that they will be able to prosecute the witness for lying -- not just for perjury, but for obstruction or lying to the feds.
/3 At the time, a NGBRI verdict meant the jury found the government didn't prove Hinckley could understand or control the nature of his actions. There was conflicting evidence about whether he was schizophrenic. It was not a "had a bad day" defense.
Is it time for a story? It is time for a story. The story involves me, the regulatory state, feces, and poor parenting.
/2 The story comes to mind because we're having a social worker home visit this Thursday to complete our re-adoption of our youngest. Re-adoption because she was technically already adopted -- in China - but we're re-doing it in America to secure more reliable paperwork.
/3 [I mean, she's a citizen, and she's legally adopted, but to get a substitute birth certificate we have to re-adopt her in America, and it just seems like a good time in America for her to have every possible protection and document.]
"Fronting" is the term for prosecutors asking Gates very early on the stuff that damages him -- like him stealing from Manafort and lying to the FBI -- to take the sting out of later cross-examination. @MerriamWebster
This is not to be confused with "laying the mattress," which is talking up the flaws in your case to your colleagues to prepare for the eventuality of a loss.
"Fronting," done right, rips the band-aid off. You get the witness to confirm the bad acts/info plainly, directly, and bluntly. Then move on. The other side will come back and dwell on it on cross, but that will seem a re-hash to the jury.
/2 First: forget TV gibberish about hearsay. Hearsay is an out of court statement offered to prove the truth of the matter asserted in the statement. For instance, the testimony "Mark told me Scott abused the ponies," to prove Scott abused ponies, is hearsay.
/3 There are many exceptions. Most commonly: a statement by the other side in a case isn't hearsay. So if I sue Scott for abusing my ponies, Scott's out-of-court statements aren't hearsay. He's the "party opponent."
Lots of people mad at me over my “Chicago pizza” take. I assume their devotion is sentimental; their parents were drunken slatterns who would dump cans of cold remaindered Chef Boyardee into trenchers of stale bread and shove it at them, growling.
This is not to say that “New York Pizza” is All That. New York Pizza is 98% grease and narcissism.
I love it when journalists watch a trial and say that a judge is being tough on the lawyers when the judge has it turned to 3, maybe 4 at most
I mean, you want a judge being tough? I’ll give you tough.
Had a client. Charged with receiving and using her mom’s benefits after mom died. Client is broken up over he mom and harrowed by the charges and fragile and not thinking straight. Not a defense. Just how it is./2
/3 first status conference before judge. aUSA has made appropriate offer. I need to work client through it because she’s not there yet and it’s not defensible. I ask judge for a trial date a reasonable time away so I can thoroughly discuss offer with client.
/2 Litigation is for the benefit of clients. Lawyers are advocates, not the parties or beneficiaries. A focus on what is good or kind or humane to the lawyers is the wrong focus.
/3 Professional courtesy to opposing counsel is nice. But it is absolutely not a free-standing justification to defy wishes or needs of a client. And if you think delaying a trial for months is no big deal, you may be a lawyer instead of a client.
Okay. Before the internet explodes into TWEETCRIME! CAN TWEETING BE OBSTRUCTION? WHAT ABOUT THE FIRST AMENDMENT?, let's go lawyer-Magritte for a sec and talk about the difference between a crime and evidence of a crime.
A thing that is not a crime can be EVIDENCE of a crime.
Wasn't that easy?
This is particularly true when it comes to a potential defendant's mental state -- what they knew and when they knew it, what they intended, and so forth.
/3 The structure of the Rules of Evidence -- with which I am quite familiar, despite getting a B- from @_eon_, after he threw a piece of chalk at me in class -- wait, lost my train of thought. Oh yes. The Rules of Evidence. Emphasize difference between act and evidence of act.