Monday, November 21, 2011

Letter to Chancellor

For the story,

Law Office of Narine Mkrtchyan
117 W. 9th Street, Suite 1001
Los Angeles, CA 90015
Tel: (818) 388-7022

Offices of Chancellor and Provost
Fifth Floor, Mrak Hall,
University of California, Davis
One Shields Ave,
Davis, CA 95616
November 21, 2011

Dear Chancellor Katehi:

As a proud King Hall alumna, Graduate Class of 2005, and also an alumna of UCLA, Undergraduate Class of 2001, let me express my complete outrage with the appalling incident at UC Davis that has sparked national concern over the last three days. The campus police pepper-spraying peaceful demonstrators and students nowhere else but on our own campus at UC Davis, at the direction of no one else but our own educators and campus administration, is unacceptable to any sense of justice and proportionality.

In 2008 this nation made a promise to its future generations, a promise that has not come to its fruition. It was a promise to embark upon long-awaited change, change for social and economic justice and equality. Change, however, was to come by concerted efforts of all Americans, united and determined in that struggle. In the words of our spiritual leader, Dr. Martin Luther King, Jr., “Change does not roll in on the wheels of inevitability, but comes through continuous struggle. And so we must straighten our backs and work for our freedom. A man can't ride you unless your back is bent.”

The demonstrators that were pepper-sprayed by the campus police at your Administration’s direction, represent that promise that was broken, that change that was demanded for. Particularly because UC Davis is an educational institution, an arm of UC Regents, the best and most liberal University chain in the state of California, it should be at the forefront of this movement, take up the task of its leadership, organize the youth, inspire them, and lead them forward towards the change that America deserves. As education is the engine of any nation, you as educators have a high responsibility to preserve and enrich the best promise in the example of students who have taken up the difficult task of the struggle for better America. You are the Prometheus entrusted with carrying the torch of light for the future generations. Instead the University has chosen to take the shameful escape to the convenient and bankrupt ‘yesteryear,’ the rejection of freedom, succumbing to the authoritarian principles of the law enforcement. The Civil Rights Movement in the United States did endure a similar attack by those who were in shameful denial of the urgency of Change.

As a criminal defense attorney, practicing for five years, I have seen what you might not have seen. I regret to report, from the trenches, that our civil rights and the rights enshrined in the United States Constitution have been shed and downgraded by precisely the same subterfuge to the principles deeply antithetical to Liberty, Equality and Justice. America has been mercilessly thrown into the lap of corporations and financial institutions, with the secret agreement and silent blessings of our government. For fear of losing its grip and authority on the people angry with this treachery, the government has stifled all the freedoms and rights of the ordinary citizens, by turning into an ominous and authoritarian police regime. There is no escape from the iron grip and it is getting tighter and tighter.

These students and peaceful demonstrators represent the voice of America fed up with the status quo. They are standing up for civil disobedience and promise of change. If they have broken the current laws and/or campus policies, it is because those ‘laws’ as they are written down and enforced, no longer represent the American people and their urgent needs. If they have done something wrong by sitting and protesting to the current affairs without even resorting to any violence, then that law that they are breaking is morally wrong, not just and fundamentally un-American. In the words of Dr. King, “… an individual who breaks the law that conscience tells him is unjust and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law.”

It is clear from watching the video of the shameful incident, the students were not engaged in any violence, were only seated when the police, nonchalantly, sadistically and brutally started pepper-spraying. This scenario is unfortunately not new to me, having represented many individuals as victims of police brutality. But what is new and unacceptable to me, is the fact that this was permitted and authorized by the University officials on the very school grounds, against students as peaceful demonstrators.

Therefore, I request immediate resignation of all Administrative officials of UC Davis who authorized and/or failed to stop this action. Furthermore, I demand immediate termination of employment of the involved police officers, to set a clear example to the rest of the nation that these incidents will not be tolerated in the future. I do not believe placing these officers on paid administrative leave is an appropriate measure in light of their highly anti-social and brutal behavior.

Unless serious action is done to repair the image of the University of California, I refuse to associate myself any longer with UC Davis and King Hall.


Narine Mkrtchyan, Esq.

Thursday, August 4, 2011

Role of judiciary

The question on the role of judiciary is frequently entertained and analyzed. Some groups uphold the conservative approach that requires judges only to 'interpret' the law, expound on the law, not change it. Others are of the more liberal approach that judges are to 'make law', because the elected officials cannot do the 'right' thing facing their political constituents. The cause of the minorities historically has been advanced by the judiciary.

Two problems with this distinction. First, in one sense, 'interpretation' of the law cannot be really done without some implicit/explicit making, remaking, fashioning of the law. It is an absurdity to even argue that judges should not 'make' law, especially in the background of the American case-law bound system. Statutes are only the skeleton of the 'law', and the cases are the muscles, tissue, organs, etc.

Second, and conversely, there is no longer any real separation of judiciary with legislative or executive bodies. In the recent years in the United States there has been a very prominent erosion of historic boundaries among the three branches of the government at all levels, local, state and federal. Judges now are in the same position as the legislators in that any decision/ruling they make is subject to immediate political consequences/repercussions. The idea of 'checks and balances' and 'separation' of powers that held together the fabric of this country for at least two hundred years has been discarded. Because the judges feel directly accountable to the public for their rulings, they feel compelled to act like legislators, to please their constituents. That translates into an 'inactive' judiciary that will really not take upon doing the 'right' thing even when it is unpopular. So, really the concept of 'judge-made' law is outdated...

An independent judiciary was to serve several goals, one of which was to protect minorities against the 'tyranny of the majority.' It was also to ensure that the Constitution was interpreted independent of political expediency, public whim and caprice... After all, the Constitution is a document that was created for all times and ages, and was not to be pushed back in favor of particularistic interests of either the government or the people. Judges were supposed to guard and watch the Constitution essentially against the greedy encroachments of various human groups, elements, structures, each demanding their own selfish interests.

But of course the Constitution is also a living document, that needs to be placed in the context of the problems that arise in modern times. Interpretation of the Constitution cannot be in the void, without regard to the demands and needs of the society. Because judges are after all human, and products of their society, the interpretation of issues of constitutional dimensions is highly volatile, arbitrary and dependent on many variables, such as personalities, predispositions, political views of judicial officers. Therefore, it does not really make any difference to argue whether judges should be 'active' or not. Either way, they are going to be 'active' whether they choose or not, insofar as they are instrumental in 'expounding' a living document, such as a Constitution. They can be 'active' in perpetuating the status quo, as it is laid down by the legislature and the people, by giving constitutional validity to the status quo. That is a very 'active' role. In the most fundamental sense, after all they are the ones who create the 'case law'.

• It is emphatically the province and duty of the judicial department to say what the law is...If two laws conflict with each other, the courts must decide on the operation of each...This is of the very essence of judicial duty.

o Marbury v. Madison, 1 Cranch, 1317 (1803).

• The people made the Constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will.

o Cohens v. Virginia, 6 Wheaton (19 U.S.) 264, 389 (1821).

• We must never forget that it is a constitution we are expounding.

o 4 Wheaton 316, 407.

• This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.

o 4 Wheaton 316, 415.

• Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

o 4 Wheaton 316, 421.

[Justice John Marshall]

Monday, July 4, 2011

Liberty and 'liberty'

"Free people, remember this maxim: we may acquire liberty, but it is never recovered if it is once lost."

"Man is born free, and everywhere he is in shackles."

"Liberty is obedience to the law which one has laid down for oneself..."
[Jean Jacques Rousseau]

Wednesday, June 15, 2011

Sailing forward... unfettered...

I do solemnly swear that as an attorney and as a Counselor of this Court, I will conduct myself uprightly and according to law, and that I will support the Constitution of the United States.

"The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country. A calm dispassionate recognition of the rights of the accused, and even of the convicted criminal against the state; a constant heart-searching by all charged with the duty of punishment; a desire and an eagerness to rehabilitate . . .; tireless efforts toward the discovery of creative and regenerative processes; unfailing faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols which . . . mark and measure the stored-up strength of a nation . . . proof of the living virtue in it"--[Winston S. Churchill, in a speech delivered in the House of Commons in 1910 while he was Home Secretary.]
"You have enemies? Good. That means you've stood up for something, sometime in your life." [Winston S. Churchill]

Friday, June 10, 2011

Crime and punishment

"The purpose of punishments is not to torment and afflict a sentient being or to undo a crime which has already been committed. Far from acting out of passion, can a political body, which is the calm agent that moderates the passions of private individuals, harbor useless cruelty, the tool of fury and fanaticism or weak tyrants? Can the cries of the poor wretch turn back time and undo actions which have already been done? The purpose of punishment, then, is nothing other than to dissuade the criminal from doing fresh harm to his compatriots and to keep other people from doing the same. Therefore, punishments and the method of inflicting them should be chosen that, mindful of the proportion between crime and punishment, will make the most effective and lasting impression on men's minds and inflict the least torment on the body of the criminal." [On Crimes and Punishments by Cesare Beccaria, 1764]
"In enforcing this punishment [of life imprisonment] in the Federal Republic, state officials are under a duty not merely to incarcerate but also to rehabilitate the prisoner through appropriate treatment... The court on several occasions has maintained that rehabilitation is constitutionally required in any community that establishes human dignity as its centerpiece and commits itself to the principle of social justice. ... The condemned criminal must be given the chance, after atoning for his crime, to reenter society... ... the state strikes at the very heart of human dignity if '[it] treats the prisoner without regard to the development of his personality and strips him of all hope of ever earning his freedom... ... [a hope] which makes the sentence bearable in terms of human dignity. [Constitutional Jurisprudence of the Federal Republic of Germany. Life Imprisonment Case, (1977) 45 BverGE 187.]

Tuesday, May 17, 2011

'Totality of circumstances' or 'unbridled discretion?'

Test for reasonable suspicion:

"An officer may make an investigatory stop if he is aware of specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that the particular person detained is engaged in criminal activity. The officer must consider the 'totality of circumstances-- the whole picture'. The facts are to be interpreted in the light of a trained officer's experience. They must, however, be more than the mere subjective impressions of a particular officer. Permissible deductions or rational inferences must be grounded in objective facts and be capable of rational explanation; 'while an officer may evaluate the facts supporting reasonable suspicion in light of his experience, experience may not be used to give the officers unbridled discretion in making a stop." U.S. v. Hernandez-Alvarado, 9th Cir. (1989), 891 F.2d 1414.

The so-called 'totality of circumstances' test that was elaborated in U.S. v. Sokolow (1989), 490 U.S. 1 and was later affirmed in U.S. v. Arvizu (2002), 534 U.S. 266, allows officers/courts to add up a number of seemingly innocuous and innocent factors to create 'reasonable suspicion' of criminal activity. In fact, 'totality of factors' is the most favorite term of the law enforcement. It is really bootstrapping and subversion of the principles of Fourth Amendment. If each of the factors described by the officer is susceptible of innocent explanation, how can their mathematical add-up amount to criminal activity? The process though was not meant to be that simple. Supposedly, the whole process of adding-up and deductive analysis should be rational, not subjective and grounded on specific facts. Officers experienced in the field of testimony come to court with formulas, ready stories. It simply shocks me how often they offer the same story, same terminology, same pattern of conduct and same analysis over and over again. They are trained to amalgamate the facts into their formulas. Facts that happen in the real world are subservient to their training and they analyze those facts, if they have such capacity, through the lens of their training, experience and policies. Experienced officers never just relate or recite the facts as they happened. They only tell those facts that they believe should have happened... It amazes me how many times when I ask an officer a specific question regarding the incident, he starts off by saying, 'I usually do this...' or 'It is my custom/practice to do this...' I repeat my question, 'I am not interested in what you usually do... What did you do on this particular occasion when arresting my client?' Often they say, 'I don't specifically recall.' They don't recall because they are trained like automatons not to recall what exactly happened but only what should have happened.

If you are supposed to read Miranda rights before questioning someone in custody, you usually do that. But did you do it on this occasion?

If you are supposed to formulate the facts amounting to reasonable suspicion of criminal activity before and at the stop, did you do it on this occasion? Did you simply find out those facts after the stop but wrote in your report as if you knew them before the stop?

Officer experience and training then drive the whole Fourth Amendment analysis. Their credibility, highly suspect, as very biased witnesses, is accorded a lot of weight by courts in deciding if someone's freedom from government interference should be respected. One would hope that courts were less naive and less deferential to such highly biased witnesses, who are caught lying with shocking regularity in our criminal justice system. Is it worth it? Don't the courts often think that this erodes the integrity of the entire system? If we are going to depend on the law enforcement for our safety and protection, doesn't it make you feel quite unsafe and quite unprotected knowing that they lie with impunity... I don't think, securing a conviction of one man is worth jeopardizing the entire system.

Credibility aside, even with the most honest and well-meaning officer, very well trained and conscientious as a witness, is it a good idea for us to surrender the freedoms secured to us to such an elusive concept as 'totality of factors?'

A: 'M'am we look at the totality of factors.'
Q: 'Totality of what factors, officer? Can you please enumerate all the factors, one by one, 1, 2, 3, 4, as to why you believed my client was engaged in criminal activity.'
A: He was wearing a hat with a 'G' on it.
Q: Is wearing a cap with a G necessarily point to his allegiance to the gang?
A: No.
Q: What else?
A: He was wearing oversized pants.
Q: Does that point to gang membership?
A: No.
Q: What else?
A: He was wearing tennis shoes predominantly worn by gang members.
Q: Does that amount to gang membership?
A: No.
Q: Next.
 A: He was pacing up and down the street in front of a known gang hang-out.
Q: Does that tell you that he is a member of that gang?
A: No.
And so forth.
At the end of all factors described that are not by themselves enough to suggest membership in the gang, officer will opine that 'your client is a member of that gang and I stopped him because I formed the opinion he was in violation of the gang injunction.'
Totality of innocent factors may indeed amount to a crime...

Reasonable suspicion v. probable cause...

"'The infringement on personal liberty of any 'sezure' of a person can only be 'reasonable' under the Fourth Amendment if we require the police to possess 'probable cause' before they seize him...'

The fears I voiced in Terry about the weakening of the Fourth Amendment have regrettably been borne out by subsequent events. Hopes that the suspicion test might be employed only in the pursuit of violent crime-- a limitation endorsed by some of its proponents-- have now been dashed, as it has been applied in narcotics investigations, in apprehension of 'illegal' aliens, and indeed has come to be viewed as a legal construct for the regulation of a general investigatory police power. The suspicion test has been warmly embraced by law enforcement forces and vigorously employed in the cause of crime detention. In criminal cases we see those for whom the initial intrusion led to the discovery of some wrongdoing. But the nature of the test permits the police to interfere as well with a multitude of law-abiding citizens, whose only transgression may be a nonconformist appearance or attitude. As one commentator has remarked: 'Police power exercised without probable cause is arbitrary. To say that the police may accost citizens at their whim and may detain them upon reasonable suspicion is to say, in reality, that the police may both accost and detain citizens at their whim.'"

Justice Douglas, concurring in United States v. Brignoni-Ponce, (1975) 422 U.S. 873.

Tuesday, April 19, 2011

What is in the name?...

As April 24th, the Armenian Genocide Remembrance Day, is fast approaching, it is appropriate to ruminate on the origins of the word 'genocide.' The word 'genocide' did not exist until 1944. It was invented by a lawyer named Raphael Lemkin, a Polish Jew who fled the Germans during World War II. Genos is the ancient Greek word for the 'tribe,' and -cide is a suffix that means killing. It was his term to describe the barbaric 'crime without a name.' His focus was on the idea that this 'crime' was the destruction of entire peoples, not just a number (even large) of human beings. When in 1921, Soghomon Tehlirian shot and killed Talaat Pasha, one of the masterminds of the Armenian genocide, in Berlin, Raphael Lemkin began his campaign to have genocide declared a crime. Allegedly Lemkin as a student asked his professor why Talaat Pasha had never been prosecuted. When he was told that there was no law that technically prohibited states from killing their own nationals, he was shocked, "It is a crime for Tehlirian to kill a man, but it is not a crime for his oppressor to kill more than a million men? That is most inconsistent."

It was Lemkin's efforts that made 'genocide' an international crime, codified first in Nuremberg indictments and later in the Convention on the Prevention and Punishment of the Crime of Genocide. The definition of 'genocide' legally is very different from other crimes against humanity. 1) Genocide is a specific intent crime, unlike other crimes against humanity, which require only general intent. 2) Genocide requires an attack on specific protected groups-- racial, religious, national or ethnic. Crimes against humanity merely require an attack against civilian populations, even if these are not protected groups. 3) Genocide requires intent to destroy the protected group as 'such.' Lemkin's theory was that destruction of a group, such as a nation, is a profound loss to the humanity and thus, is a crime above all crimes.

"Nations are essential elements of the world community. The world represents only so much culture and intellectual vigor as are created by its component national groups. Essentially the idea of a nation signifies constructive cooperation and original contributions, based upon genuine traditions, genuine culture, and a well-developed national psychology. The destruction of a nation, therefore, results in the loss of its future contributions to the world." "Our whole heritage is a product of the contributions of all peoples. We can best understand this when we realize how impoverished our culture would be if the so-called inferior peoples doomed by Germany, such as the Jews, had not been permitted to create the Bible, or to give birth to an Einstein, a Spinoza; if the Poles had not had the opportunity to give to the world a Copernicus, a Chopin, a Curie; the Czechs, a Huss, a Dvorak; the Greeks, a Plato and a Socrates; the Russians, a Tolstoy and a Shostakovich." [Raphael Lemkin]
The distinctive characteristic of the 'genocide' from other international crimes is very important. It was the hatred of a specific group, 'Armenians', by Turks that fueled and drove the annihiliation of 1.5 million of Armenians. It was the targeting of a very specific group, 'Jews,' that resulted in the Jewish Holocaust. It was also the targeting of Tutsis by Hutus that was the force behind the Rwandan genocide. It is a very specific intent, to exterminate a very specific group of people. That factor elevates and distinguishes genocide from the rest. Why is it a 'crime' above all crimes? By its nature it sounds unbelievable. How can a group of people dare to even contemplate to exterminate another group of people! It assails the very essence of humanity... It is so antithetical to the moral 'code' upon which the humanity is established that one cannot comprehend it, nor tolerate it! Well, of course, killing of a single human being is by itself inhuman and beastly.  Wars are crimes by their very nature... In fact, under international law an armed conflict is acceptable only for self-defense! The philosophical distinction of the 'genocide' is in the idea that this crime is targeting a group of people for its destruction... The idea of wiping out an entire 'nation' is mentally and emotionally abhorring. That is the reason Lemkin was so driven to crown this crime with a special legal meaning. The goal was to make it an international crime-- its commision with severe legal consequences, i.e. prosecution by international tribunals. The magnitude of the act of extermination of a single group is such that indeed requires a special recognition in the eyes of the world community. It has received that special meaning and since 1945 the word 'genocide' has achieved a very special and elevated status in the hallways of international psyche... The crime itself preceded the legal term invented to describe it... Unfortunately, it took the world a Jewish Holocaust to coin and recognize the Armenian genocide... Alas, the awe that the very word instills in the minds of people, did not prevent occurrence of genocides afterwards...

Convention on the Prevention and Punishment of the Crime of Genocide: 

Article I: The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.
Article II: ... genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
a) Killing members of the group;
b) Causing serious bodily or mental harm to members of the group;
c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d) Imposing measures intended to prevent births within the group;
e) Forcibly transferring children of the group to another group.

The most forceful words to me, among others, are in Article I: 'prevent and punish'. That should be the goal!

For more read here.

Saturday, April 9, 2011

The surreal task of 'cross-examination'...

A lot of lawyers and scholars have written on the art of cross-examination... Most have agreed that even though cross-examination is an 'art', the techniques can be learned and mastered by almost everyone... I think, along with the closing argument, it is absolutely the most important part of the trial... I knew when I lost or won a trial finishing a cross-examination of the crucial witness... You just know it... But it is a surreal experience... I really call it a 'conversation' by a Socratic method. You are having a 'conversation' with the witness on your terms... Your power and your imagination have to be so strong that you can guide the conversation and shape it in the direction you want!!! I do believe, it involves a lot of artistry... Control the witness? Hmmm... That is certainly the goal... Lead? Yes! Before you even start,  you need to know exactly where you are going, why you are going... But the details and the curves on the road is all that matters... Usually my cross-examination has been of very hostile witnesses, officers. It turns into a duel sometimes... 'Officer, if what you just testified is true, I would like to bring your attention to page 5 of your report, where you said exactly the opposite. You testified earlier that you are trained to write all material and significant facts accurately and fully in your report... '  I rarely have cross-examinations where judges, prosecutors and officers do not get angry... It simply amazes me... Almost always I get a prosecutor making faces, judge getting angry and officer wanting to tear me apart... This is when I accomplish something... When I don't accomplish anything, it is because the DA is screaming 'Objection' in anger and judge sustaining it in anger... I ask for grounds for objection, the judge adds them for the prosecutor... Everyone is in a highly anxious state of mind, everybody wanting to end the experience of witnessing my cross-examination... Then they resort to personal attacks, trying to stop me any possible way, 'Counsel, your question is unintelligible.' Then I cut my question into three pieces in plain vanilla English and serve it on a silver platter to the officer... But they are never quite happy with anything I do.

Why? Because I go there with a plan, with a map... I have different scenarios of possible answers... The main thing is to make sure that the witness does not have a way out of the corner you are trying to set him up to. You have to lock him! If you know what you are doing, you will lay the groundwork with the witness before you get to the main issue you are getting to. This is so when you are at the destination, he doesn't have a safety valve to escape from there...

For example:
Q: Officer, when you came to the room, you saw the purse where you found the drugs, laying on top of the bed, correct?
A: Yes.
Q: Do you recognize that purse on this photo?
A: Yes.
Q: Please circle that purse for me.
Q: Was there any other purse in this room with drugs inside?
A: No.
Q: This was the only purse with drugs inside?
A: Yes.
Q: When you entered the room you saw this laying like this on top of the bed, like it is depicted in this photo?
A: Correct.

When that officer testifies on redirect that in fact the purse with drugs was found in another purse (which you anticipated), you come back and hit him hard with his earlier testimony that the same purse was laying on top of the bed as it was depicted on the photo when he entered the room. It is the most fascinating experience when you get the officer admit that he had been 'mistaken' in his testimony... Hmm... Mistaken? The more appropriate characterization is 'lying,' and 'falsifying.' Officer, you won't get away with that with me...

In one of my DUI cases, a client was charged with driving under the influence of legally prescribed medications, very strong painkillers, including Hydrocodone, Benzodiazepine, etc. The expert for prosecution testified that the level of drugs found in the bloodstream of my client on the day in question was lethal, highly toxic and therefore, it was his opinion that the client was driving under the influence of drugs. Most importantly, he just assured the jury that in his thirty years of experience he had never seen that dosage of drugs in someone alive. He said, 'lethal' several times in his testimony. I started cross-examination and had the jury laugh with me:

Q: Mr. ... you heard my client's doctor testify that he had been presribing the same dosage of drugs to her for about 20 years, didn't you?
A: Yes, I did.
Q: Do you have any information to make you believe that on the day in question she misused any of the prescribed medications by her doctor.
A: No.
Q: In fact, you heard from her doctor that the amount of drugs found in her bloodstream on the day in question is consistent with the prescribed dosage allowed to her.
A: Yes.
Q: You testified that amount is lethal?
A: Yes.
Q: You are sure about that?
A: I am positive!
Q: Well, Mr. ..... if that amount is lethal (pause), she is sitting right there in the courtroom... (pause) She is alive?...  Do you see her? (I turned to my client with a surprised smile on my face.)
A: ..... (He simply didn't have an answer to that, while the jurors started laughing with me and my client.)

This was one of the most hilarious moments I have ever had! The expert after that simply did not know where to look and left the courtroom with a red face and utterly confused! He lost all his credibility and the jury hung not believing the prosecutor's expert...

It can't always be pleasant though.  You can have a witness that outsmarts you because you don't have a clear plan or goal... A witness may simply refuse to answer your question, can give evasive answers, etc. I have cross-examined officers who would never give a straight answer to any of your questions. At that point you have to balance your interest in accomplishing certain things through that witness against your interest in not looking like an 'idiot'  before the jury. They will hold it against your client if they believe you are an 'idiot.' The witness may very well drive you to the corner if the answer is not what you were looking for! That can happen! Ooo... You have to shut up and sit down without showing your frustration to the jury! 'No more questions, thank you!' And smile... Incidentally, judges don't like even when I smile. I had a judge tell me in open court in the presence of the jury, 'I don't like that grin on your face. Don't have that expression when cross-examining!' I couldn't help smiling to that! All of a sudden, you can be found in contempt of court for 'smiling,' literally!

The problem is that you get so caught up with your plan and theory and you get so angry that the witness is not giving you the answers you wanted, you can't disengage and you want to fire all your bullets! It becomes very personal to you! You are so invested that you can't let go! It is very dangerous because then it becomes all or nothing and you may lose all! It is like charging your cavalry without infantry support in the face of oncoming artillery fire! That is reckless! (Remember the 'Waterloo'). Caution dictates to draw a line and withdraw when you are realizing you can't accomplish much with that witness... But before you draw a line, you must make sure the jury sees that you are trying to get important questions out there and the witness is refusing to answer! The jury wants your questions answered too and most probably will get frustrated with the witness too! Then in your closing argument you use the witness' evasiveness and unwillingness to give a straight answer to your benefit! 'Ladies and gentlemen, didn't you want to hear why the officer decided to do x or z... I asked him all those questions... He didn't want to give a straight answer to any of those questions! Why? What do you make of that? Well, because he is afraid to provide an answer for you to judge clearly as to the reasons of his behavior... How can you believe this officer if he doesn't want to answer very logical questions here in court under oath?'

So, you can use a bad witness to your benefit too, but only if he had not sunk your ship... You have to make sure a witness does not make you sink... If you know what you are doing, you don't go into areas recklessly with an adverse witness... Your first goal is to accomplish something through the witness... If you can't, move on...

The right to cross-examine is very important to me. I take it very seriously! In one of my trials, when I was impeaching the credibility of the officer by his written reports, the DA was consistently objecting on various grounds, the judge was sustaining, I finally asked for a sidebar! I was in a fury. I told the judge outside the presence of the jury, 'Your honor, you are not letting me to cross-examine this officer and impeach his credibility. You are denying my client a fair trial!' I laid out for the record the areas where I was trying to go into and the judge was not letting me... When I repeated, 'I want to cross-examine this guy...' several times, the judge finally gave up on me and said, 'Do it!' It was hilarious. We went back and I finished the cross-examination... But I will never forget that moment. I simply did not expect him to say that! I thought he was going to say, 'Counsel you are going into improper areas. Under 352 I am going to limit your cross-examination.'

It is definitely a battle you have to win in order to have a chance at winning the war! I have to say, it is not magic, yet it does entail a certain amount of 'magic.' Sometimes I myself don't believe what I accomplish! I go home and think, 'How did I do it?' I really can't explain... Probably it is a combination of preparation, passion, persistence... When you do it right and when you succeed, it is the most thrilling experience an attorney can live for!

Thursday, February 17, 2011

Harmony and Dissonance

Probably the most important conference of the year is the Annual Meeting of the American Society of International Law, coming up shortly here. This year it is titled 'Harmony and Dissonance in International Law.'  The title speaks volumes and forces to think, propound, explore... It has long become apparent that the traditional boundaries of international law have dissipated. It no longer means what it meant some 40-50 years ago and even two decades ago. Beginning from approximately 1990, the collapse of the Soviet Union or the Soviet bloc, the age of Internet, and marching trends of globalization, the international law has had a major metamorphosis. It no longer concerns only 'relations among nation state actors'. There is no longer a private versus public dichotomy. Significantly, non-state actors or quasi-non-state-actors (those who are in consort with the nation-state, but not acting under its auspices or under its direct control) have become a pivotal force in making and remaking international law. Separately, the erosion of real 'borders' between nation-states has brought forth an expanding field of transnational law. Nation-states have had to grapple with numerous challenges involving crime across borders.

The ASIL Annual Meeting focuses on a paradoxic simultaneous development of 'segmentation and seamlessness' in international law. The two parallel trends, in direct clash with each other, raise the obvious conclusion of harmony and dissonance in international law. It could not be otherwise. This is indeed a 'natural and probable' consequence of today's global reality that has also affected the making of international law. 'Segmentation' has been a direct result of globalization and 'democratization' of international institutions. The more globalized the world, the more players have the opportunity to roll the dice in the world arena. The more voices heard, the more dissonance. Cultural differences despite the strong 'harmonization' of values and beliefs have their inevitable effect on this process.

This obviously creates problems for resolution of international disputes, wars, disagreements. Therefore, in reaction to this 'segmentation' there has been an opposite push towards 'seamlessness.' There is a need to find a common pathway, an operating principle, and reach some degree of consensus. No one really wants insecurity, indefinite crisis, or stalemate. Moreover, the global economy, fragile and dependent on various indicators, is in constant need for harmonization of rules, policies, laws. 'Seamlessness' is the desire to 'simplify', 'streamline', 'direct' a single coherent body of international rules binding on all, especially in the area of human rights. The 'new' and recently added players constantly challenge the way human rights are enforced. In their eyes, justice is not enforced properly because those in power are 'different' in their value system. So, it is really a need for 'harmonization' of competing interests.

These two trends feed upon each other. If there had not been so much dissonance, there would not have been that much need for harmonization. The stronger the one, the stronger the other. The international law therefore is bound to be shifting and mutating in this highly volatile mass. The chemical distribution of this mass will mark and demark the boundaries of the 21st century international law.

Scholars of international law should not forget that international law is a child of international politics. After all, world politics will define the ingredients of international rules and laws. Depending on how the power in the world is distributed, channelled and processed, international law will develop accordingly. Who will make up the U.N. Security Council? Who will decide the future of Palestine? Who will become the judges of the International Criminal Court? Who decides to prosecute international crimes against humanity?  Who will decide whether a case is admissible before the European Court of Human Rights? These are all real issues that will determine the future of international law development. Real people are involved in this process. Real power lubricated by political considerations, national policies, and unwritten/unspoken practice and custom is thrown into this 'critical mass.'

In short, this is a fascinating amalgamation of numerous physical bodies, structures and designs. The world making up the 'international community', speaking both in harmony and dissonance, has to be highly prepared for the inherent challenge that this process breeds.