A PRO BONO CASE THAT BECAME A FRONT PAGE SCANDAL – BY ELLIN CURLEY

My ex husband, Larry Kaiser, was a young litigation attorney in New York City in 1979. His law firm assigned Pro Bono Appeals cases to junior associates as part of a public service program.

Larry was given the appeal of a defendant, Eric Michaels, who had been convicted, in a second trial, of rape, sodomy, robbery and burglary. His first trial had been declared a mistrial. It was clear that the defendant was rightfully convicted. He had definitely done it. So Larry had to look for a procedural irregularity that he could exploit to try to get the conviction overturned on appeal. That was his job, unsavory as it was.

Larry discovered that the trial judge, Judge Arnold Fraiman, had declared a mistrial for a questionable reason – he and several jurors were scheduled to leave on vacations. I believe the judge even had his wife and his packed suitcases in the courtroom. If this was seen as an abuse of discretion by the appellate court, it would invalidate the guilty verdict of the second trial. The entire second trial would be considered invalid as a violation of double jeopardy. You can only be tried once for any crime or crimes.

Larry was drowning in work so I helped him write this Pro Bono brief. It was very much a joint effort. I was practicing law at a small New York City law firm at the time. We won the appeals case and Eric Michaels was released from prison.

One morning shortly after the appellate verdict was rendered, I was getting out of bed and I heard Larry yelling from the living room. He had just opened the New York Times and found his case on the front page! The misconduct of Judge Fraiman was considered a big enough deal to warrant a prominent story. This was particularly true because his misconduct resulted in the release of a convicted rapist. The District Attorney of New York had described Eric Michaels’ crimes as some of the more vicious crimes prosecuted by the state in years.

Judge Fraiman was now in the spotlight. Larry was interviewed by several newspapers. Over the next few days, reporters dug into the Judge’s prior cases. And they discovered that the exact same thing had happened before. Judge Fraiman had previously declared a mistrial for the same reason – he was due to leave on vacation. His prior mistrial declaration had also been considered inappropriate by an appellate court. And again, an appellate court had released another guilty defendant back onto the streets because of Judge Fraiman’s actions in court.

This was now a really big judicial scandal. The story stayed in the news for a while and destroyed Judge Fraiman’s reputation. I think he may have been censured by the judiciary or by the Bar Association.

Larry always had mixed feelings about this case. He had a major legal success and got his name in the New York Times. On the other hand, he helped get a rapist released from jail. This is often the plight of lawyers in the criminal field.

It was also a prime reason I didn’t go into criminal law. Winning isn’t everything.

13 thoughts on “A PRO BONO CASE THAT BECAME A FRONT PAGE SCANDAL – BY ELLIN CURLEY

    • In criminal law, you could work as a prosecutor and go after criminals. That solves the defending a guilty man problem.

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    • I think that a year or so later, we found out that the guy had raped another woman! It was really awful. But we did uncover an inappropriate practice by a judge that could effect lots of people.

      Liked by 1 person

  1. Ellin, this sounds like a Jack McCoy “ripped from the headlines”, “Law And Order” episode. WOW!! It must have been very difficult for Larry and you to resolve this one. BTW: Larry reminds me a bit of a young Elliot Gould.

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    • It actually felt like we were living through a TV crime series episode! It wasn’t difficult to decide if we SHOULD defend this guy – that’s part of the job. The hard part was getting over the guilt of having helped release a dangerous rapist back into the community.

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  2. He does look like a young Elliot Gould. I’m with you. I couldn’t live with letting a vicious nasty type out of jail, it would eat at my conscience forever. I couldn’t do criminal law ever! Just sayin I’m with you. not a hope in hell.

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