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.

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.

AMERICAN JUSTICE – STRANGE BUT TRUE

EXPOSED – THE BOSTON NANNY TRIAL


For those of you who follow “big trials,” there was a huge one in 1997 in Boston. Garry was working and covered the trial, along with a zillion other reporters from all over the country. We became as engrossed by the story as everyone else. Garry was in the courtroom every day. Each night over dinner, we talked about the day’s testimony. Garry gave me his opinion on who was telling the truth and what it might mean.

Law School – Harvard University – Photo: B. Kraft

So what happened? A young British woman — Louise Woodward — was nanny for a baby who died of what was apparently shaken baby syndrome. The jury convicted her of second degree murder which carried a sentence of 15-years to life. It’s also possible — based on recent evidence — that the baby did not die from being shaken, though it seems unlikely the issue will ever be proven beyond doubt.

Judge Zobel was not happy with the verdict. He reduced the conviction to involuntary manslaughter stating “the circumstances in which the defendant acted were characterized by confusion, inexperience, frustration, immaturity and some anger, but not malice in the legal sense –supporting a conviction for second-degree murder,” adding: “I am morally certain that allowing this defendant on this evidence to remain convicted of second-degree murder would be a miscarriage of justice.”

His overturning of the jury verdict produced a storm of controversy.

I don’t think Judge Zobel believed she was innocent, merely that justice would not be better served by sending her to jail. I doubt the baby’s parents agreed, but I had my own issues with the baby’s parents who I felt deserved a piece of the responsibility for the tragedy. As two employed doctors, they had more than enough money to hire an experienced, professional nursemaid for their baby. Instead, they went for the “cheap” solution. They hired a kid with no experience. The guilt did not belong exclusively to the girl they hired. They knew better.

Lady Justice on Old Bailey, London

Our legal system is designed to be flexible, to allow human considerations to occasionally trump legal ones. Often, it means no one is entirely satisfied with a trial’s outcome. The wild cards belong to the judges who have enormous discretionary powers — which they mostly don’t use. Judges can always set aside a jury verdict, but it rarely happens in the real world. This is the only time I’ve seen it happen, other than in a movie or TV show. Zobel was an unusual judge.

Woodward’s sentence was reduced to time served (279 days) and she was freed. Assistant District Attorney Gerald Leone appealed the judge’s decision to the Supreme Judicial Court of Massachusetts.

Woodward’s lawyers also appealed, asking the court to throw out her manslaughter conviction. The court affirmed the guilty verdict by a 7-0 vote. However, in a 4-3 split decision, the higher court rejected the prosecution’s appeal against reduction of the conviction to involuntary manslaughter.

On 16 June 1998, Woodward was returned to the United Kingdom. She studied law, changed her mind and became a dance teacher. A story that leaves me saying “huh?”

After Effects


The conviction had an unanticipated side effect by causing the defeat of pending legislation in Massachusetts which would have restored capital punishment. I was glad. Garry not so much. It’s one of the few areas of the law on which we disagree, although I think these days, we are closer to agreement. Times have changed and our opinions with it.

The death penalty is not a liberal vs. conservative issue. I’m against it because I think if killing is wrong, making it legal doesn’t make it right. Garry believes some people deserve it, a point of view with which it’s hard to argue. It’s a matter of conscience.

The U.S. has a unique system of justice. Mostly, our magic works, sometimes not. Law is a human institution. It’s imperfect, but all things considered, it’s pretty good. I don’t know where you would find a better one.

THE NANNY TRIAL – A TRUE STORY OF AMERICAN JUSTICE

For those of you who follow “big trials,” there was a huge one in 1997 in Boston. Garry was working and covered the trial, along with a zillion other reporters from all over the country.

We became as engrossed by the story as everyone else. Garry was in the courtroom every day. Each night over dinner, we talked about the day’s testimony. Garry gave me his opinion on who was telling the truth and what it might mean.

So what happened? A young British woman — Louise Woodward — was nanny for a baby who died of what was apparently shaken baby syndrome, a finding which has since been disputed. The jury convicted her of second degree murder that carried a sentenced of 15 to life.

Judge Zobel was unhappy with the verdict and reduced the conviction to involuntary manslaughter. He stated “the circumstances in which the defendant acted were characterized by confusion, inexperience, frustration, immaturity and some anger, but not malice in the legal sense supporting a conviction for second-degree murder,” adding: “I am morally certain that allowing this defendant on this evidence to remain convicted of second-degree murder would be a miscarriage of justice.” His overturning of the jury verdict produced a storm of controversy.

I don’t think the Judge Zobel believed she was innocent, merely that justice would not be better served by sending her to jail. I doubt the baby’s parents agreed.

scales of justice

Our legal system is designed to be flexible, to allow human considerations to occasionally trump legal ones. Sometimes it means no one is entirely satisfied with a trial’s outcome. The wild cards are the judges who have enormous discretionary powers … which they mostly don’t use. Although judges can always set aside a jury verdict, it rarely happens in the real world. This is the only time I’ve seen it happen, other than in a movie or TV show. Zobel was an unusual judge.

Woodward’s sentence was reduced to time served (279 days) and she was freed. Assistant District Attorney Gerald Leone appealed the judge’s decision to the Supreme Judicial Court of Massachusetts.

Woodward’s lawyers also appealed, asking the court to throw out her manslaughter conviction. The court affirmed the guilty verdict by a 7-0 vote. However, in a 4-3 split decision, the higher court rejected the prosecution’s appeal against reduction of the conviction to involuntary manslaughter.

On 16 June 1998, Woodward was returned to the United Kingdom. She studied law, changed her mind and became a dance teacher. A story that leaves me saying “huh?”

Side Effects

The conviction had an unanticipated side effect by causing the defeat of pending legislation in Massachusetts which would have restored capital punishment. I was glad. Garry not so much. It’s one of the few areas of the law on which we disagree.

The death penalty is not a liberal vs. conservative issue. I’m against it because I think if killing is wrong, making it legal doesn’t make it right. Garry believes some people deserve it, a point of view that’s hard to argue with (but I do anyway). We have agreed to disagree on this specific issue. It’s a matter of conscience.

The U.S. has a unique system of justice. Mostly, our magic works, sometimes not. Law is a human institution. It’s imperfect, but all things considered, it’s pretty good. I don’t know where you would find a better one.

WHAT A TWIST: THE DAILY PROMPT