Morris D. Rosen, Esquire

There are many things I will remain grateful to my former father-in-law, Morris D. Rosen, for. Morris was truly a “lawyer’s lawyer” and introduced me a rarefied practice of law in Charleston I never would have known without knowing him. My son’s frustrations as a new lawyer reminded me of an important lesson Morris taught me when I worked for him as a summer law clerk.

My son called me recently on his way to the bank to deposit a large settlement check from an automobile accident case. I invited him over to celebrate his good fortune but he had other ideas that didn’t include siting around talking law with an old, retired lawyer.

Logan called me again the next day upset about his client wanting more money. Logan explained to the client he’d gotten all the insurance money there was to get. Then the client brazenly wanted Logan to cut his fee so he’d get more money. Logan explained his client had signed the contract of representation agreeing to his fee and signed the settlement statement itemizing the breakdown of the settlement. The client finally wanted Logan to stiff his ERISA health insurance company and not honor their medical lien so he’ could get more money that way. Logan said he’d be glad to try and negotiate the lien down but he couldn’t just ignore a statutory lien. I gather the conversation ended with the client bad mouthing all the good work Logan had done achieving the sizable settlement in the first place leaving Logan with hurt feelings about the things his ungrateful client had said. He stopped by on his way home to commiserate and I thought it was time to teach him a lesson Morris Rosen taught me long ago.

I asked him, “Didn’t anybody ever tell you about the “client satisfaction curve?” My look of puzzlement told him no one had. He sat me down at the long conference table in his library, sat next to me, and took out his yellow legal pad as he proceeded to draw a wave like curve on the paper. He placed his pencil at the bottom of first trough before the first wave and said, “This is where your client starts out on the satisfaction curve having gotten himself sued, arrested, seriously injured, or caught cheating on his wife. He feels fate and the whole world has turned against him.” Then he moved his pencil up the back side of the first wave, and continued, “Then you come along and give him hope that your knowledge and skills as a lawyer will be his salvation.” The top of the first wave he explained occurs on the day you get hired but then his pencil traced the slope line downward again as he said, “Every case has its problems. It turns out your client wasn’t quite as truthful as you’d hoped he’d been. Pesky facts keep popping up that throw a wrench into your carefully crafted theory of liability. Maybe you draw a take no prisoners defense counsel or a mean, defense oriented judge. There’s a million reasons your client starts to doubt your ability to save his ass.” The curve hit bottom but Morris continued and his pencil started back up the second wave. Morris continued, “But you’re a good lawyer and with hard work and dedication, you win the case.” Morris said as he paused at the top of the second wave. I thought he was finished with his lesson but he wasn’t. With hios pencil heading down yet again, Morris said, “Having won the case, your client soon begins to believe he was in the right all along and winning the case was no big deal. So easy in fact, you shouldn’t have been paid the fee you were paid.”

That, he explained, was just nature of the practice of law was. It doesn’t matter how good a lawyer you are, what you say or do, the client satisfaction curve will always run its course. Your client will gripe just as often when you win a case as when you lose one. The simple fact is it’s part of being a lawyer. Telling Logan the story about the client satisfaction curve helped him accept he’d done a good job for his client and shouldn’t let his client’s sudden dissatisfaction shake his confidence in his abilities as a lawyer.

There is no law that says if a burglar or rapist you shoot doesn’t die on your property, then you’re guilty of murder. The police who think so are not willing to take responsibility for possibly making a wrong decision. It’s not like they can’t come back charge someone with murder later if more evidence comes to light. It’s a lazy lock-em all up and let the Court sort it out mentality.

Charleston, South Carolina used to be a home port for nuclear submarines. Submariners are a breed apart having to be crazy enough to live in cramped quarters for long periods of time without going crazy. Petty Officers are the naval equivalents of a Sergeants in the Army and it is their job to take care of the sailors who serve under them. A good Petty Officer seeks out good lawyers he can refer his crew to when legal problems threaten a sailor’s readiness for deployment. I once represented a submariner charged in municipal court for a drunk and disorderly and got his case first diverted, then dismissed. His Petty Officer’s took notice of my good work and soon became a regular source of referrals. Mostly minor stuff, car wrecks, landlord disputes, and traffic tickets but then, one day, to my surprise, he referred a murder case to me.

One of the sailors in his crew gave his wife a 25 caliber automatic pistol for her protection while he was on deployment. One night she was awoken by a man climbing through her apartment’s bedroom window in downtown Charleston. She sat up and asked what he thought he was he doing as the man gave her a look that said she knew exactly what he was doing. That was when she reached up under her pillow, pulled out that 25 caliber pistol her husband had given her, and pointed it straight at him. Seeing the gun the man ran out her bedroom and down her hallway leading to her front door where he was fumbling with the lock when the first bullet came down the hallway and struck him in his back. He fumbled the deadbolt open, turned slightly as he pulled thew door open as the second bullet entered his right side. 25 caliber bullets don’t have much stopping power and the man was able to flee the scene as the Navy wife called 911.

The man was nowhere to be found when the police arrived. The police took her statement and had forensics dust for fingerprints. They were getting ready to wrap things up when a neighbor down the street discovered a man crawled up under his pickup truck. While a 25 caliber bullet doesn’t have much stopping power, it does have a nasty habit of ricocheting round inside the person whose body it enters . The bullet that entered this man’s right side ricocheted around his rib cage before tearing through his mesenteric artery causing him to bleed out internally. He was dead long before the police pulled him out from under the pick-up truck and everything went south for my client. Next thing she knew was she was being charged with murder, read her rights, handcuffed, and put in the back of a police cruiser. One of the policemen almost apologized saying, “If only he’d died in your apartment, we wouldn’t have to charge you with murder.”

There was never any had to about her arrest. I didn’t have to be Clarence Darrow to know the case against her was a total crock and was never going to see the inside of a courtroom. But I also knew one of the most frustrating things about our criminal justice sysatem is how long it can take for things to get done, especially when a person charged is innocent.

Bonds in murder cases have to be set by a Circuit Court Judge. You have to file a motion for a bond hearing and serve the motion on the Solicitor who won’t want to do anything until they speak with the arresting officer. In the meantime you have to track down the law clerk for the judge hearing General Sessions cases to ask the judge to schedule a bond hearing. Your client can spend days in the County jail before a bond hearing is scheduled. For a Navy wife, who never did anything illegal in her entire life, to be stripped down, put in an orange jump suit with plastic sandals, and be thrown into a filthy cell with God knows who, is terrifying no matter how many times her lawyer tries to convince her he’s doing everything possible to get her out.

Fortunately, the facts and circumstances of this particular murder case were compelling. I was able to convince the law clerk to put in a good word in with the Judge to get the case scheduled which helped focus the Solicitor’s attention on the case. After the soliucitor learned the facts, he agreed to dismiss the case outright setting my client free. Getting her case dismissed didn’t feel like much of a victory, it felt more like a defeat being part of the system that wrongly incarcerated her in the first place.

The sad truth is, if her arrest hadn’t been quite so obviously wrong, it would have been just the beginning of a glacially slow process trying to prove her innocence. The Court administration and prosecutors today measure success by how many cases are moved through the system. The fastest way to move cases through the system is by guilty pleas. A defendant willing to take a plea bargain can have their cases brought up quickly. When the plea offer is for probation, which they most often are, the sad truth is too many people plead guilty just to get out of the stinking county jail. For people who don’t want to plead guilty, the Solicitor gets to decide which cases to call first for trial. They naturally choose the cases that are most likely to result in convictions and too often defendants who have arguable claims of innocence get shoved onto the back burners. Compounding the problem is the chronic lack of resources for our court system. There aren’t enough judges, clerks, bailiffs, court recorders, and courtrooms to move the backlogged cases.

Yes, the system worked in my murder case. My client got a lawyer, her lawyer got a hearing, and the murder charge against her was dismissed. Think about how important those fundamental rights of due priocess were to her. And think what their denial must be like for the immigrants being swept off our streets and held in ICE detention without them. Our rights aren’t meant to protect criminals, they’re meant to protect all of us. As one of my law professorsonce said fifty years ago, we have the worst system of justice in the world, except for all the others. Catchy, but we can do better.

Judge Weston Houck wasn’t a Federal Court judge any normal lawyer would want to fuck around with. His sharp tongue and quick wrath could wither the most hardened of litigators. But Bobby Howe wasn’t a normal lawyer. He probably had no business practicing law in the Federal Court but was hied by the secretary of the local Longshoreman’s Association accused in a union corruption trial of keeping the books for an alleged scheme to sell Charleston union memberships to out of state wannabe longshoremen. The alleged scheme worked like this: a person couldn’t work on the docks unless they were a member of the local ILA union, unless all the local ILA members were already working, then an out of state ILA member could be chosen to work on a gang. New Orleans had more work than union members, so persons with a membership in an out of state union, like the Charleston ILA, could work pretty steady down in Louisiana. All it took was for some high ranking union official in Charleston to sell clandestine union memberships to persons from Louisiana for a hefty sum. The DOJ took a dim view of the practice and decided to indict the union officials in Charleston and New Orleans profiting from the scheme and, for good measure, charged Bobby’s client, the secretary of the Charleston union, to coerce her cooperation. 

In pretrial motions Bobby moved to sever his client from the union officials on dubious ground that it was unfair to try the lowly secretary for doing what her boss told her to do. Judge Houck made short shrift of Bobby’s motion by summarily denying it out of hand. So Bobby found himself fixing to try a Federal Court union corruption case along side hardened DOJ prosecutors and high priced criminal efense lawyers representing the union officials before a crusty Federal Judge.

And so the trial began. The more experienced lawyers busily examined and cross examined the witnesses and made objections, while Bobby bided his time not responding to the vast majority of the testimony and evidence that didn’t didn’t have anything to do with his client. Bobby didn’t know when the trial started but Judge Houck had a habit of asking if there was anything that needed to be brought to the Court’s attention before beginning the trail at the beginning of everyday and after every break. The first time Judge Houck asked if there was any matter that needed to be brought to the Court’s attention, Bobby stood right up and renewed his motion for a severance. Judge Houck turned about 3 shades of red darker and admonished Bobby that his motion for severance had been denied and should neither be raised nor reargued again in his courtroom. The next time the judge asked the same question, Bobby sheepishly said, “I know you already ruled on my motion but there was more testimony this morning that might have changed your mind and, since you asked, I’d like to renew my severance motion for the record.” That’ll be denied the judge intoned gravely with a look on his face that indicated he was wondering if Bobby was intentionally fucking with him. The judge added with an air of finality, your motion for a severance is preserved for the record and doesn’t need to be renewed over and over.

Well, Bobby was, in fact, fucking with the Judge and, sure enough, after the next break, when the judge asked if there was anything that needed to be brought to the Court’s attention, Bobby just raised his hand as the prosecutor and other lawyers shook their heads in disbelief. That’ll be denied the judge barked without Bobby saying a word. But this continued throughout the trial. The judge would ask, Bobby indicate he wanted to renew his motion, the judge would threaten him with all manner of contempt of court, and Bobby would shoot back that the judge should stop asking if there was anything if he didn’t mean it.

Judge Houck struggled to keep from losing his temper and saying something on the record that could get him reversed on appeal. He decided to make a joke out it. He started making and denying Bobby’s motion before Bobby could say anything. He would say, “Is there anything other than Mr. Howe’s motion for a severance which is denied” that needs to be brought to the Court’s attention before we resume testimony.” Bobby would respond with a nonverbal exaggerated shrug with a look of hurt on his face that drew sympathy from everyone in the courtroom except for the Judge.

The trial proceeded and finally got around to the U.S Attorney calling the FBI agent who offered the only testimony against Bobby’s client. He testified he interviewed Bobby’s client at her mother’s home and she confessed to keeping the books for the illegal union membership scheme. Bobby asked if his client had signed a confession. No, she did not. Had he recorded her confession. No, he had not. Did he have any witness who could corroborate this confession. No, he did not adding the defendant’s mother had left the room when she made her incriminating statements. Bobby scratched his head in bewilderment and sat down. The Judge and other lawyers all looked at Bobby like he’d committed courtroom malpractice not going after the FBI agent for not following DOJ and FBI mandated procedures for conducting interrogations. The trial moved on and Bobby remained uncharacteristically quiet.

By the end of the trial it had become exceedingly clear the evidence of the scheme was overwhelming. Try as hard as the lawyers for the union officials could to make it sound like it was nothing more than union members helping their brothers out, the evidence of the significant sums of money that exchanged hands and the efforts to conceal it was simply too much to explain away. In his closing argument, the Assistant United States attorney laid out his evidence methodically until it irrefutably proved the guilt of the defendants. Well, not so much the guilt of Bobby’s client, the evidence supporting her conviction rested solely on the FBI agent’s testimony. The other lawyers made their arguments smooth as silk but just as insubstantial. Then it was Bobby’s turn, Judge Houck stirred on his bench signaling he wasn’t going to take any of Bobby’s shenanigan’s during closing argument right before Bobby stood up to give the best closing argument I ever heard.

Everyone wondered where he was going when he began his argument by saying being involved in a Federal Court criminal trial is like riding a roller coaster at the State fair. It’s all fun and games, laughter and bravado standing in line waiting to get on the ride. It continues all fun and games right up until you climb into the car and they strap you in he said as he changed his body position, like he was sitting down. Then he cocked his head back, and began visually climbing up the first incline of the roller coaster. Up, up, and up he said glancing at his clenched fists, as your knuckles whiten grasping the bar, right up to the top where, he suddenly cocked himself forward, looking terrified as if staring down the precipitous drop off on first crest of the coaster the other side before Bobby began violently rocking side to side, back and forth as if careening at break neck speeds around all manner of twists and turns on the roller coaster. Then he suddenly stopped, straightened up, and turned back to the jury and seamlessly transitioned by saying, in all sincerity, riding a roller coaster at the fair isn’t fun, its S C A R R Y. Just like being tried for a crime in Federal Court and facing the prospect of losing your freedom for doing what your boss told you to do. The jurors all of whom had probably ridden roller coasters and knew exactly what Bobby was talking about, were riveted by his narrative.

Bobby paused, seeming to collect his thoughts and the juror’s attention, before continuing. in a shaking voice, I don’t know about you, but if the F……………, B…………, I………….. calls me saying they want to talk to me about committing a crime, I’m gonna call my MOMMA. I noticed a couple of jurors nodding their heads in agreement. Picture this he said to the jury. like they were now all friends, everybody, my client, her mother, and the FBI agent, are all sitting around the formica table in Momma’s kitchen. He put his hands on the rail of the jury box and leaned in so he could talk in a lower voice. The jury all leaned in too as if around momma’s table to hear better, and he said in a quiet voice, they’re talking about this and that, nothing incriminating, until, just when the FBI agent is getting around to asking my client about her role in the alleged crime, this F B I agent testifies UNDER OATH Momma gets up and leaves the room. Dead silence. With a stunned look on his face, Bobby raised his hands off the rail and slowly, ever so slowly, turned around until he and every one of the jurors behind him was staring directly at the hapless FBI agent sitting on the front row of the courtroom. And Bobby bellowed out, “MOMMA, WHERE YOU GOING?“

And that was it. He sat down. He didn’t have to say anything else. He let the jury say it for him and it wasn’t a surprise to anyone in the courtroom when the jury returned verdicts of guilty as to the union officials and not guilty as to Bobby’s client.

Bobby wisely thought it best to beat a hasty retreat from the U.S. Courthouse but, before he could make it out the door, the U.S. Marshalls were waiting to escort him back up to Judge Houck’s chambers. They led him in and left him standing helplessly in front of the judge’s desk while the judge seemingly attended to administrative matters. Bobby waited for for the Judge to say something, anything. After letting Bobby sweat it out for what seemed like forever, Judge Houck looked up from his chair, over the rims of his half framed glasses and, for the first time with a smile on his face, said, well, Mr. Howe, I been reconsidering granting that motion for a severance of yours.”

I wasn’t his lawyer when a former client was charged with murder. He was represented by the Public Defender’s Office and they asked for my help.

 I previously represented the defendant when he was hit by a pickup truck making a right hand turn in a crosswalk. Fortunately, he wasn’t hurt too bad and I was able to get him a quick  insurance settlement. I realized he wasn’t in his right mind while handling his wreck case but he denied there was anything wrong. His mother, however, told me a different story. She began by telling me how proud she was of her son. He’d gone to college and had good job in Atlanta running a drug rehabilitation clinic before a blood vessel ruptured in his brain. She told me the doctors were amazed he’d survived but said he suffered permanent brain damage, was unable to work, and had to return home so she could take care of him.

Caring for him with no money coming in to help pay his living and medical expenses was exhausting. The small insurance settlement I got for him would help but not for long. His mother confided her biggest  struggle was dealing with the behavioral changes brought on by his brain injury. He’d get to not liking the way his medicine made him feel, stop taking it, causing his emotional outbursts would go from bad to worse. She told me of one incident. He lived upstairs and would shut himself in for days on end. She brought his a spaghetti dinner and left it by his door. He didn’t like spaghetti and threw the plate down the stairs leaving the mess for her to clean up. She struggled to coax him back onto his medicine and told me she was at her wits end. I asked why he wasn’t receiving Social Security disability benefits and Medicaid to help with expenses and she didn’t even know Social Security would pay for disability. More for her benefit than his, I agreed to file a Social Security and disability claim for him.  

To support his claim I had to gather his medical records from the hospital and doctors in Atlanta where he was treated for his ruptured brain aneurysm. It was only then that I began to understand the full extent of his brain injury. The bleed on his brain was truly life threatening. As the blood pulsed from his ruptured blood vessel, it caused the surrounding brain tissue to be compressed and swell. The doctors induced a coma and performed an open craniotomy to clip the ruptured blood vessel and evacuate the accumulated blood but, by that time,  extensive damage had been done to the surrounding brain tissues. Post surgery radiographic studies showed the complete absence of a significant area of his brain that had died.  The doctors said it was a miracle he ever woke up from the coma. He had health insurance through his job that paid not for his hospital and surgeon expenses, physical therapy so he could learn to walk again, and speech therapy to learn to speak again but, before his recovery was anywhere near complete, his insurance lapsed when he couldn’t return to work.

Like 99.9% of people who file for Social Security disability, he was turned down the first go round. I knew physically there were still hundreds of jobs he could perform and worked to supplement the record on reconsideration that his disabling problem was his mental impairment, not physical. I met with his doctors and got them to complete a questionnaire tracking the Social Security listing of impairments regulations for mental impairments. His doctor not only completed the form, they wrote an eye popping warning that without proper treatment and medication he was a danger to himself or others. The doctor’s letters did the trick and the Social Security Administration relented and awarded him benefits on reconsideration. 

The client faded from my memory until I read in the paper he’d been arrested and charged with murdering his mother. The paper described how he was apprehended riding his bicycle down a busy street covered in his mother’s blood. When the police stopped him to investigate he was incoherent. When they checked his home, they discovered his mother had been beaten to death with a cast iron fry pan. Later in custody, after he allegedly calmed down and became coherent again, the police report said he  confessed he’d killed his mother. I didn’t doubt he did it but  doubted the reliability of his alleged confession.

He was ably represented by the Public Defenders Office. When they asked if he had any medical records documenting his brain injury, he remembered I’d gotten all his medical records from Atlanta when I represented him for Social Security disability. They called me and I gave them everything I had.  I commented how sad what happened was and how I knew how much he loved his mother.   

The public defender was experienced enough to know it would take a competency hearings, court ordered evaluations and counter-evaluations, followed by more hearings taking months upon months before a lengthy and expensive trial of competing experts arguing over his criminal culpability could be held. The prosecutor also understood and agreed with his Public Defenders he needed treatment. They agreed the best way to get it for him was to plead to guilty but mentally ill.

The law changed after the assassination attempt on President Reagan making it almost impossible to get a not guilty by reason of insanity verdict. Since then the best you hope for was a guilty but mentally ill. Under the new guilty but mentally ill rule, a person who suffers from a mental illness and commits a murder can be found or plead guilty but mentally ill and get sent to a hospital for treatment instead of to prison. In a perfect world this would make sense. But in reality, once the good doctors at the State Hospital found the defendant was “cured” or, more likely, sufficiently medicated, he would be sent to prison anyway to do the mandatory 30 years for murder.

Still, guilty but mentally ill was my old client’s only option. At least he wouldn’t go to prison initially but to a hospital where he would get at least marginal care and hopefully the medication he needed. Missing alarge part of his brain it was unlikely he’d get cured and be sent to prison. How the guilty but mentally ill rule works in the real world is probably a lot for you the reader to take in, so imagine how hard it was for my former brain injured client to understand. When the public defender discussing the guilty but mentally ill plea offer with him, he didn’t understand and asked to see his lawyer who he apparently thought I still was.

I knew and respected his PD lawuyer and accepted her invitation for an in-person meeting with her and my former client at the jail before I had a chance to think through the potential ethical problems that would arise. When I had time and tried thinking them through, I realized there were no easy or good answers to the ethical problems raised. Each question about one ethical problem raised another. Could I rely on what the PD said, or would I have to independently review the case file to verify everything to know how to advise the clienthim? Could I rely upon my knowledge and experience dealing with him in the past to know what would be best for him today? To what extent are lawyers ethically bound to help current and former clients in need? To help fellow lawyers in representing their former clients. To help see the wheels of justice don’t grind another helpless defendant to a pulp. I arrived for the meeting at the jail still having no clear answer to any of these questions. In the real world that’s how ethical problems come at a lawyer.

The PD had arranged for a private room at the jail where we could meet face to face. My former client was already in the room with his Public Defender when I made it through the rigamarole getting in to see him. He was glad to see me and tried to stand up to shake my hand but was handcuffed to an eye hook bolted to the table. He looked more disheveled than when his mother was caring for him but otherwise appeared to be in good health. I let his PD take the lead asking questions and I saw that he listened carefully and responded appropriately to what was being said.

To my relief it turned out my advice wasn’t needed. He freely admitted what he’d done and understood there had to be consequences. He said he’d given a lot of thought to it and had decided pleading guilty but mentally ill was what he wanted to to. I listened as his PD explained all the risks and benefits of the plea and as he said he understood he could end up in prison anyway but his mind was made up.

Now, did I think he really understood the advice he was given, or that he freely, voluntarily, and intelligently decided to accept the plea? I had no way of knowing and, thankfully, wasn’t asked for my opinion. As a lawyer and a human being my heart broke for his mother he loved and for him stricken by an incurable brain injury. I was thankful for the thankless job the Public Defenders Office does handling impossible cases like this one every day. 

For years afterward I would receive letters from the defendant still in the hospital. Letters hand written on the borders of articles torn from magazines and newspapers. They were letters on disjointed topics of no particular rhyme or reason. Initially, I did my best to write him back thanking him for his letters and inquiring how he was doing. but gradually stopped when all I would receive in return were more clipping covered in cryptic comments. At least I knew he remained in the hospital and was receiving what medical care they had to offer.  I write this story to illustrate being a criminal defense lawyer is hardly ever as black or white as people think. More often it presents problems with no easy answers.