Science. Complex, costly, imperfect and time consuming.  That’s the way science has been, is and always will be. Unless of course, it is the “science” of the law enforcement and the criminal justice system.  The complex and imperfect sciences that we are familiar with become, in the legal system, perfect, beyond question, fast and I expensive.

Why? Because the legal system needs certainty and expediency, not costly and uncertain. Uncertainty means doubt and that means reasonable doubt.  In Episode 16, I begin to touch on how the legal system has converted science, kidnapped it and made it into something it is not – beyond question.  Maybe, as I point out, if we treated science with more respect and awe, we’d treat those in the system with more respect and awe themselves.

Please be aware we are relying on impressions, recollections, memories and interpretations.

Written by Harrison Kakos, Law Clerk at Rockind Law.

One of the most rewarding advantages of clerking for Neil is the opportunity it provides for gaining first-hand insight into his masterful abilities in the courtroom. To put it simply, observing him in action is a spellbinding and memorable experience. It is particularly captivating to behold his remarkable ability to quickly respond or react to what is elicited during testimony, to make crucial judgment calls in milliseconds, and to somehow always stay multiple steps ahead of everyone else.

With the pandemic forcing courts across the country to conduct hearings by Zoom in place of traditional sessions, the general public has been afforded an opportunity for viewing the workings of the justice system. Lately, I have found myself intrigued by just how taken aback and confused many laypersons, who are employed outside of the legal profession, have been at the tendency of some judges to brashly address courtroom participants or spectators. People express awe, puzzlement, and even anger at the manner in which they’ve recently witnessed judges harshly rebuke a party, find another in contempt, or otherwise demonstrate a troubling degree of immodesty.

In a recent hearing, Neil found himself facing a challenging judge who had no qualms about making clear that the courtroom was his domain and would be governed in a fashion he alone deemed best. The case was already challenging; it was highly complex, with voluminous discovery, a slew of serious counts, and intense media scrutiny. As if this weren’t enough, there was also the fact that a Special Prosecutor was specifically brought in to handle the delicate and noteworthy case.

Before the preliminary examination began, Neil was cognizant of just how crucial the proceeding was. All preliminary exams are, by their nature, significant. They are the equivalent of a “mini-trial” wherein the prosecution must demonstrate probable cause to believe that the offense(s) which the defendant is charged with occurred and were committed by that particular defendant.

Here, with the complex and sensitive nature of the case itself, Neil recognized that every minor detail and attribute of the hearing would have a profound and lasting impact on its trajectory.

The exam was held before a judge and in a courtroom that, up to that point, Neil hadn’t had any prior experience with. Although this meant that there wouldn’t be any concerns over preconceived notions from prior appearances spilling into this matter, it also meant that Neil not only was without the “home court” advantage—which the Special Prosecutor enjoyed— but also would be uncertain of exactly what to expect from the judge. The personality of a judge can range from one extreme to another and anything in between, making the lack of insight here yet another obstacle. Even so, Neil had prepared and was ready to dive into the proceeding.

Not long after starting, it became apparent that the judge had no reservations about speaking his mind. When Neil noticed that the prosecutor was introducing exhibits that had been combined in an unorganized manner, rather than individually separated or at least subjected to a pattern of some sort, he suggested that perhaps she instead distinguish between the individual materials to ensure that the record accurately reflected whatever was specifically introduced. Such suggestions are commonplace and routine. However, the judge nevertheless took issue with it and asserted that the particular manner in which the prosecutor admitted her exhibits was “none of [his] business”:

When Neil had offered this suggestion, he, of course, had not intended to be patronizing or even remotely disrespectful in any manner. With the judge now accusing him of doing so, Neil was unwilling to let such a misconception stand. He therefore firmly expressed that he had not intended any offense whatsoever but ensured that he was nevertheless respectful to the court and maintaining his composure.

Some attorneys are only capable of being collegial and shy away from confrontation, while others are firm and aggressive but unlikely to also be amicable. Neil, though, can oscillate fluidly between both realms; he will always strive to be sincere and cordial first, but most certainly has no qualms about unequivocally standing up for his clients, colleagues, or himself when necessary:

Because Neil was able to maintain civility without compromising his steadfast devotion to the client’s rights, he is able to get his point across without risking needless consequence. In fact, this maneuver even manages to lessen the tension, thereby softening the judge:

Over the next 45 minutes or so, there were multiple instances where the prosecutor sought to admit certain evidence into the record in violation of several different court rules and procedures. However, because Neil possesses a virtually encyclopedic knowledge of the many nuanced court rules, he certainly was not going to pass up legitimate objections with each such occurrence.

Since every objection is an interruption of the exchange between the attorney and witness, and requires the judge’s ruling before proceeding further, this understandably leads to delay. Rather than directing the prosecutor to ensure her approach was consistent with the rules of evidence, though, the judge instead declared that at this rate, they’d need to continue the hearing the following day. He even lamented that it would have to begin at 6:00 a.m. for any feasible hope of concluding:

Without missing a beat, Neil stayed focused and collected. He didn’t debate with the judge or react indignantly. Conversely, Neil matter-of-factly informed the judge about a prior conflict that would preclude him from returning the following day. His measured response left the judge with little else to retort with, other than a questionable pronouncement that his order “is bigger than [the other judge’s] order.”

When the judge continued to travel down this path, though, Neil refused to sit by idly. Not only did he expressly clarify that he did not desire to be difficult, but when the judge continued to complain about the objections, Neil made sure to reveal that he had actually looked past the full extent of objectionable exchanges:

After another witness was called and the prosecutor continued to make one misstep after another, Neil continued to object. He was not going to sacrifice his client’s rights merely to placate the judge:

About 15 minutes later, more violations induced more objections by Neil. In spite of the judge’s clear dissatisfaction with repeated objections, Neil could not, in good conscience, cave in and ignore that which the client was fairly entitled to and deserving of merely to avoid further reprimanding by the judge. When the judge sarcastically suggests Neil has objected to a question as innocuous as a witness’s name, he emphatically denies doing so and makes clear that he resents such a remark:

Not only did Neil categorically emphasize that he took exception to the judge’s comment, but he even underscored that he is simply doing his job. If anything, Neil would have been derelict if he chose to ignore such repeated and excessive violations of the proper procedure.

Later on, Neil cross-examined the detective who had investigated the case. Months earlier, when this detective swore to the accuracy of the criminal complaint (the affidavit composed when initially seeking charges against a person), he had made a significant error and inaccurately overlooked that the document stated that he himself was directly involved in the matter (as a co-defendant), and even featured allegations of the crime occurring in a separate county.

During the cross-exam, Neil called attention to these facts to capture the tunnel vision with which the investigation was led, as well as the inattentiveness of the authorities. The judge quickly characterized this as a mere “clerical error” and complained that Neil had falsely claimed the officer lied. Because Neil had done no such thing, he explicitly rejected the assertion:

In addition, Neil felt enough was enough and now directly indicated that he was sensing a strong bias:

The judge tried to dance around Neil’s candid remarks and implied that Neil’s feelings were somehow hurt. Knowing Neil personally, this assessment was so off-base that it was laughable. Neil is incredibly thick-skinned and perhaps the last person who’d ever get his own feelings hurt, let alone irritated by something so frivolous. He will, however, absolutely refuse to allow the feelings or reputation of a client to be impugned, and he made this clear on the record.

These excerpts captured just one of the many instances where Neil has exhibited a steadfast commitment to our clients and an unyielding resolve for the truth, for what is fair, and for what is just.

These exchanges also capture Neil’s philosophy as it pertains to handling challenging judges. The primary approach should always be one of humility and pleasantness. However, unfortunately, sometimes kindness is mistaken for weakness. When this occurs, it is imperative to stand up for the client and fight back. Neil wouldn’t ever adopt an abrasive stance for no purpose, especially because such a tactic is likely to backfire and harm the client’s prospects. In that same respect, he will never succumb under pressure, nor will he shy away from unreservedly speaking his mind and stating the truth.

When I spoke with Neil about this hearing and his thought process, he explained that he’d much rather get pushed around by the judge and secure a favorable outcome for the client than acquiesce and sacrifice the case. He stressed that when a client’s rights are being so overtly impacted, his sole focus is protecting the client.

Tellingly, this is not only an admirable stance, but an effective one. The remainder of this hearing featured no further remarks or complaints by the judge. The matter was recalled two weeks later as they were unable to conclude on the first day; the second time around, the judge’s demeanor was totally different and far more agreeable. Recognizing that Neil will vigorously advocate on behalf of a client, while still maintaining his respect for the dignity and authority of the court, fostered a sense of admiration that inspired him to appreciate and understand that Neil was, as he had noted that first day, just doing his job, and doing it very well.

Of all the questions I get regarding cross examination and trial work, “how do you deal with difficult judges?” is asked the most often. During Episode 15, I explore the qualifications of becoming a judge and share stories of how I’ve dealt with difficult judges in the past. Most jurors and members of the public think that a judge must’ve been an amazing all-knowing lawyer and must know all areas of the law. Wrong. Worse, some judges cannot help but interfere in the trial and interfere in the cross examination.

How do you handle these judges without losing the jury and without hurting your client’s case? Very carefully.

Listen to Episode 15 for more …

Please be aware we are relying on impressions, recollections, memories and interpretations.

Whether intended or not, prosecutors are the most powerful entity in the criminal justice system.  That’s right.  You probably thought judges were.  While judges have tremendous power, in the end prosecutors have more.  They have the power to charge people with crimes, decide what crimes to charge, seek enhancements, make plea bargains, propose sentence agreements, etc.  The list is endless.  It is because prosecutors have so much power that special rules of responsibility (ethical rules) apply to them.   Prosecutors are supposed to ministers of justice and not just advocates.  Think about that for a moment — ministers of justice.  That means they have an additional responsibility to not just advocate for a conviction but to do justice.  

While most people know of prosecutors who work for the government or state, there is another type of prosecutor that most are unaware of — the city or municipal attorney.  Some cities hire their attorney or prosecutors internally.  In those cities, the attorneys function like a prosecutor hired by the state or county — they are government employees. However, most are not.  Most work for private law firms whose firms bid for a contract with a municipality or city.  These contracts can be withdrawn or terminated or the firm could, if the city is displeased with the relationship, could be lost during a competitive bidding process.  

This podcast is devoted to this type of prosecutor, the city attorney who works for a private law firm who wants to keep the city contract.  While most that I’ve encountered are responsible and can put aside the need to keep the city or municipality pleased, some do not.  What happens then? What happens when the city or municipal prosecutor is servant to two (2) masters, justice on the one hand and those that hired them on the other?

Please be aware we are relying on impressions, recollections, memories and interpretations.

We can learn a lot by watching someone do it right. We can also learn much, maybe even more, by watching someone do it wrong or poorly.  And this episode I break down and tear apart a cross examination done by another lawyer of a very important state expert witness.  I hold nothing back.  I. Hold. Nothing. Back.  

From asking open-ended questions, to having no plan, to not having ammunition to challenge the witness to asking questions of the witness that could do nothing but help the witness appear stronger, I point out various parts of the cross examination so that listeners and others can learn … what not to do.  If you can’t help your client or the case with asking questions, then don’t.  Just sit down.  But in this cross examination, the one that we tear apart, the lawyer did the opposite.  He brought a butter knife to a battlefield when the other side was armed with nukes and then tried to puke at the expert.  Not only did not help his client, it emboldened expert, made him appear more credible and gave the prosecution the appearance of having solid ground to stand on.

There is something called the sponsorship theory of trial advocacy .  If you put evidence out there or question a witness, the judge and/or jury will assume that the information you have or the information you are advancing is as good as it gets.  They will assume that you’re doing all you can and if you can do is hurt your position and aid the other side, the Court or jury will draw that conclusion.  This is to be avoided at all costs and in this episode, I break down a cross examination that did just that in my opinion, undermined the defense and helped the expert and state make their case even stronger.  

If you want to learn what not to do, in my opinion, tune in.

Please be aware we are relying on impressions, recollections, memories and interpretations.

From a young age, we’ve been told that ignorance of the law is no defense to a criminal offense or charge.  But shouldn’t it be?  The concept that ignorance of the law is no defense is rooted in the notion that we should know what the laws are and govern ourselves accordingly.  But how can we? Every year, the legislature passes more and more laws making more and more acts criminal violations.  For years, the legislature was creating on average of 45 felonies a year.  That doesn’t include misdemeanors and doesn’t include local municipalities.  The number of new laws is just staggering.  It is impossible to keep up with.  But even if you could, you’re required to know how those laws are being interpreted by the various appellate courts as well.  It is simply overwhelming.  

It can even prove overwhelming for the police yet, according to our courts, the police can be ignorant about whether was something was a crime and the evidence they seize or gather as a result of their mistaken believe that you were committing a crime is still evidence even though they were wrong so long as they acted reasonably or in good faith.  You read that right — if you act reasonably or in good faith, you can still be charged and convicted but if the police do the same thing, the evidence they seize can still come in as evidence against you.  We should get back to a different standard — criminal intent.  Either you intend to break the law or you don’t.  If you do, you should be able to be prosecuted.  If you don’t, you should not or at least you should be able to defend yourself saying, “I acted in good faith.  I thought what I was doing was legal.”  If it is good enough for the police, it is good enough for the rest of us.  

Tune in and hear my take. 

Please be aware we are relying on impressions, recollections, memories and interpretations.

In this episode, Neil Rockind discusses the concept known as the “Presumption of Innocence” and describes why it is such a cornerstone of our justice system. He analyzes the impact and effect of this presumption and explains the grave danger inherent in disregarding this essential aspect of the law.

By incorporating clever examples of how this would fare if it was applied in our daily lives, Neil makes clear just how destructive it may be when we choose to ignore the presumption of innocence and instead jump to conclusions. Listen to Episode 11 to hear more!

Please be aware we are relying on impressions, recollections, memories and interpretations.

Gathering Evidence of Innocence Should Come First

Did you know that the police and prosecution must turn over evidence favorable to the defense to the accused?  Did you know that the US Supreme Court has stated that it is a denial of due process for a prosecutor not to turn over favorable evidence? Likewise, did you know that even if a prosecutor is unaware of the evidence, if any member of the police department or someone within the sphere of influence and control of the prosecution knows about it, it must be disclosed.  Yet, why do cases still get overturned for the failure of evidence to be disposed?

Perhaps the root of the problem is that some police officers do not took for evidence of innocence or as we call it, “exculpatory evidence”.  Instead, the police simply seek out evidence that confirms the allegations or “helps prove the charges” rather than seek or attempt to obtain evidence that undercuts the allegations.  Most police officers would claim that they are neutral, i.e., that they just gather evidence without bias but when do they overlook evidence that tends to exculpate the accused so regularly.

Within the last month, I’ve cross-examined 2 police officers who both admitted that they didn’t know what exculpatory evidence was.  Isn’t that shameful?  How can police officers claim to look for something and claim to preserve it if they don’t know what it is?  How can prosecutor’s claim to have turned everything over and to be even handed ministers of justice, if the police officers that are working with them don’t know what exculpatory evidence is?

Things should change.  If they haven’t looked for and processed all evidence, and most importantly, evidence that favors the accused, than a person should not stand trial for that offense.  Hear me discuss this issue in Episode 10.

Please be aware we are relying on impressions, recollections, memories and interpretations.

Watch And Listen To The Witness Rather Than Taking Notes

There’s a court reporter either sitting somewhere in the courtroom or someone ready to turn the recording into a verbatim record. So, stop looking down at your notepad trying to take down word for word what the witness says in direct examination. Instead, just as you’d tell your child or teen to pick their head up from their phone, pick your head up and look at what’s happening in front of you. Much of communication is non-verbal. Movements, positioning, facial expressions, arm and body placement and style of answering, eg, direct or narrative and rambling, can only be learned by watching a witness. So, watch. This not only applies to witnesses but in life … watch how others communicate rather than trying to remember what he/said, watch how they’re saying it.

I once was prepared to examine a witness in a trial whose demeanor told me everything. He was hostile, angry and vengeful about my client not having promoted him years ago. I could only tell how hostile by watching his demeanor. His tone and posture revealed that he was trying to spike the balk and my client’s future with every answer. That was only learned by watching him. Had I shoved my head in my notepad, I’d have missed it. It proved to be an easy cross examination because the jury, once I shared with him/them, his motivation and bias, he manner of speech and communicating made sense. They discredited what he had to say.

Episode 9 is devoted to this tip on cross examination. You’re not a note taker. Listen. Watch. You’ll learn a lot more than you will from having “good notes.”

Please be aware we are relying on impressions, recollections, memories and interpretations.

You’re Your Own Worst Enemy

The system has to work in all cases including cases in which people are accused of drunk driving or DUI. But is it? Over the years, these investigations have become one-sided, slanted and skewed. Exculpatory and favorable evidence is ignored. Any misstep by the driver is interpreted, without question or query, as evidence of intoxication or impairment. Even the slightest physical “sign”, e.g., bloodshot eyes, is assumed without follow-up or investigation, to be the result of alcohol or drug consumption and intoxication. When we query the police about whether they made any inquiry at all or did they just assume, they are cornered time and time again into admitting they made assumptions and relied on supposition. Yet, it continues. 

In episode 8, I explore how intoxicated or impaired (DUI cases) are built by the police from the initial observation of driving to the arrest. I explore how the process is skewed and how the legal system has over time become seemingly tolerant of slanted investigations into allegations drunk driving. You’ll hear how the police have been permitted to ignore troves of favorable, exculpatory evidence while cherry picking a couple of “bad” facts and using those against the driver. Any mistake that could be due to nerves or fear is noted as a sign of intoxication and impairment. And if the driver acquits himself perfectly on all of the questions and tests, the police just assume that “he’s a good drunk” and “he holds his liquor well.” What’s worse … nearly all of the evidence gathered in the investigation comes from the driver’s own mouth and his own deeds. After arrest, if the police want to interrogate you, Miranda Warnings (the subject of Episode 7) are required. But during a traffic stop and investigation into drunk driving, they aren’t required. And because people choose to answer questions and participate during these skewed investigations, they end up providing most of the evidence against themselves. They unwittingly assist and aid the police in making the case against them and they do so thinking they have a chance to convince the police that they weren’t intoxicated, impaired or high. They end up being their own worst enemy. 

Please be aware we are relying on impressions, recollections, memories and interpretations.