WINNING ISN’T EVERYTHING – BY ELLIN CURLEY

Considering how the world has changed, I suspect more of us have become aware that “winning” isn’t everything and sometimes, not even a good thing. It all depends on what you won. And there can be a lot of emotional conflict about whether what you’ve done is winning or not.

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 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.

Author: Marilyn Armstrong

Opinionated writer with hopes for a better future for all plus a big helping of cynicism.

13 thoughts on “WINNING ISN’T EVERYTHING – BY ELLIN CURLEY”

    1. You’re trained in law school to be able to argue both sides of any legal argument. The problem is that sometimes winning your argument, while intellectually satisfying, can result in an unsavory outcome, like releasing a known criminal from prison, or allowing a large corporation to screw individual citizens.

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      1. Ellin, this is a REAL life version of one of those “ripped from the headlines “L&O” stories. Similar to one just seen in our “Boston Legal” binge.
        How did Larry cope emotionally with the verdict releasing the dangerous man back onto the streets? “Mixed” emotions? I wager they must have been painful.
        Did “Eric” commit any more crimes?
        I can relate a bit. Doing stories that advocated new trials for inmates sentenced to long prison terms because the Judge had vacation or other personal matters that took precedent over a proper trial and jury consideration. Several of the “unjustly” imprisoned men won their freedom with a new day in court. Lots of celebrations!
        Alas, a couple or three of those returned to their normal lives, also returned to their criminal ways. Left me with a very bittersweet taste in mouth, mixed feelings of elation and guilt but didn’t stop my sense of pursuing justice no matter how the process plays out. As Larry probably discovered, you have to have a very thick skin, a strong sense of ethics and justice and the willingness to pursue truth even when you think you’ve already gotten justice.
        Some of the suits used to suggest I should let those mentally prickly stories GO – hand off to other reporters. I could never do that. Would’ve loved to to talk to Larry about this but I’m sure you have lots to share about this legal conundrum when we meet again.

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    1. Defence lawyers most often represent people who did what they are accused of doing. So you have to really want to save the few innocent ones to do the job because most of the time if you win, a bad guy gets off. I knew a defence lawyer who said the best clients were rich, scared and guilty!

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  1. Yes. I can’t imagine having to deal with such a moral dilemma, but realize lawyers are sworn to do their best for any client. I, too, would be incapable of being a lawyer for this reason, Ellen.

    Liked by 1 person

      1. Civil litigation can be just as difficult as criminal law. Corporations can do some pretty bad things to people, like in all the environmental class action suits and the suits resutling from the 2008 market crash.

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    1. To be a litigator – a lawyer who specializes in trials, either civil or criminal, you have to relish the intellectual arguments you make, regardless of the real world outcomes. Sometimes this is unbelievably hard.

      Liked by 1 person

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