THE ODD LEGALESE OF WINNING AND LOSING – 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 won a major legal success and got his name in the New York Times.

On the other hand, he also 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.

10 thoughts on “THE ODD LEGALESE OF WINNING AND LOSING – BY ELLIN CURLEY”

    1. In law school, you’re taught that your job is to represent your client, whatever side of right or wrong he may be on. Every argument has a counter argument and lawyers have to be prepared to argue both sides, no matter what you feel about the case. Everyone is entitled to a defense in our system of justice.

      Liked by 1 person

  1. I can understand Larry’s mixed feelings about the case. Sure you want to win but the fellow he was defending was such bad dude. Oh my what a situation.
    Leslie

    Like

    1. You do what you have to do as a lawyer, but sometimes you secretly hope that you lose! This was one of those cases that Larry would have preferred to lose.

      Liked by 1 person

      1. I sometimes watch Bull – the legal series on TV. He represented an insurance company that refused to pay out insurance to some deserving family. He felt terrible about winning so he gave the family 2 million dollars to help them. The 2 million dollars was a monthly retainer from the insurance company. So he did win for the company but he did the right thing in the end. It was a good end to it. The 2 million was far more than what they claimed from the company.

        Like

  2. Certainly everyone deserves their day in court, and hopefully, it will turn out as it should. I do feel for those that represent a guilty party and one as despicable as this jerk, because they must do their job with due diligence but when they do, the jerk goes free while on the other, justice is also served in that an idiot judge got what was coming to him. He was there as a judge for a damn reason. Do your job properly!

    Like

    1. You’re right. In this case there were two bad guys, the defendant AND the judge. Only one of them could get justice and the other one automatically got off. In some ways it was better for the judicial system that, in this case, it was the judge who got his comeuppance because he was abusing the perks of his job and subverting the whole system of justice.

      Like

      1. That’s how I saw it. The tragedy, however, was the perp got off and I have to wonder how many others lives were subsequently affected in a negative way by him. HOpefully he got his! too!

        Like

Leave a Reply to Taswegian1957 Cancel reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.