Stalking Justice

By Paul L. Katz JD

If you like courtroom drama, these cases read like finely-crafted short stories, each laid out to create tension and capture the reader. This is Mr. Katz's autobiographical anthology of court cases he selected from a legal career that spanned over forty years. He was an assistant district attorney, a public defender, an insurance defense attorney, and a civil plaintive in Louisiana state and federal courts and in state courts in Colorado.

Entwined in these actual jury trials, the author freely describes his personal impressions, comparisons, and criticisms about the advantages and disadvantages of how each legal system worked or failed to deliver "justice" since justice wasn't always the goal. He removes the gloves and exposes the underbelly of systems that were never perfect and move, in his opinion, in the wrong direction from the Supreme Court on down.

The stories provide entertainment to the casual reader and instruction to students of law who aspire to be advocates in the court room. The cases provide examples of how to look at the facts deeply, realistically, and, most importantly, from the points of view of the actors.

This early realization that point of view determines what we know and what we believe was the key to Mr. Katz's successes. Point of view is at the heart of how he examined facts he couldn't change. If the obvious point of view didn't get him where he wanted to go, he found another one that did. He demonstrates that, often, there is a way to look at the "facts" that doesn't require artifice but does provide salvation. This ultimately determines the way a case is presented to the jury and how the jury sees the facts. This insight guided the author, changed or colored the surface stories, exposed underlying truths, and led to unexpected turns that did result in justice.

In one case, the author faced a trial in which his client faced an eyewitness and his own confession. In another, a bouncer claims to have caught a thief running with a stolen purse, and the victims identified Mr. Katz's client as the thief. By placing himself in the role of an eyewitness, and, in the other case, in the role of the bouncer charged with protecting the patrons of the night club where he worked, the author cleared away the obvious and exposed the heart of reality.
In another case, the author was able to thwart a biased federal judge who was determined to defeat Mr. Katz's case. The author, instead, caused the jury to see the case from the point of view of an old woman who seemed to be nothing more than a throw-away, irrelevant witness.

In the final case, "Stalking Justice," the author exposes a system of justice in Boulder, Colorado that, to him, seems broken. He changed the names of the litigants but not the names of the judges or the Deputy DAs as he relates his impressions of what he believes those actors intentionally did and did not do in order to circumvent justice. He tells this story because he believes this particular system must change.

All readers will gain insight into the workings of the court along with the novel approach taken by the author as he describes the cases, the different legal challenges he faced, and the result of the novel approaches he used to advocate for his clients in his long and varied career.

• Language: English
• Publisher: BookBaby
• Release date: Sep 21, 2022
• ISBN: 9781667867038

Book preview

1

THE FORGED PRESCRIPTION AND THE INVISIBLE ROACH

Immediately after passing the bar exam, I followed my good friend Jim Brodtmann into the District Attorney’s office. I wanted to learn how to try cases. I had no desire to sit at a desk and push paper. I had no fear of public speaking because I enjoyed being center stage. I had spent years standing in front of a classroom full of students, teaching senior Math and Calculus at De La Salle high school. I had experience in local theater. And I had enjoyed the oneon-one competition of collegiate wrestling, with the eyes of spectators on me at LSU. So, there was never a doubt that if I were going to be a lawyer, my calling was to be a trial attorney. It was a profession that had it all for me: one-on-one competition, complicated issues, performing in front of an audience, and the prospect of making a good living.

To my dismay, my first assignment was with the Juvenile Division. To say the least, it was not what I was hoping for. There was no jury, and the juvenile defendants often had no defense attorneys. In those cases, the judge played the role of both judge and defense attorney as he or she cross-examined my witnesses. I was grateful when I was transferred to Adult Criminal Court after just a few months.

At first, I was assigned to Magistrate Court where the docket was limited to misdemeanors, first appearances, bail hearings, and extraditions. It was here that I got my first real taste of trial work, albeit sans jury. The judge I was assigned to was Nils Douglas. He was a tall, thin, intelligent black man who called the cases as he saw them and held me strictly to proof beyond a reasonable doubt. I won almost all of my cases, but if my case had the smallest hole, I would not prevail. I will always remember a conversation I had with him in chambers after he had ruled against me. I was very unhappy that I’d lost. Once in chambers, I continued to argue and insisted that he was wrong and I was right. He was ever the gentleman. Seeing that he was not going to change my mind, he asked, Is this one of the topics that we can disagree on and still be friends? It was a professional resolution to our dispute. We were professionals. We could and would disagree and remain professional, and we remained friends for years.

Finally, after a few more months, I was transferred to felony trial court. I was lucky to be assigned to Judge Frank Shea’s section of court. He had a reputation for being a master of the law, of evidence, and of the absolute authority in his court room. He was tough but fair, and he enjoyed taking on the role of mentor to the young lawyers assigned to his court. After each case, he invited me into his chambers to critique my performance. He made suggestions on how I could improve and painstakingly went into the nuances of the work. I soon recognized the amazing luck I had to learn from a master.

Since he worked hard at clearing the cases allotted to his section, I had no time to ruminate over the last case before I started in on the next one. Often, there were several jury trials in the same week. It was fast and furious. Sometimes we picked a jury for the next trial while the previous jury was still deliberating the verdict in its case. I was eager to show him that I was learning from his suggestions and incorporating them into the way I did things. I looked forward to the answer he gave me after each trial when I asked, How did I do? I hung on every word of his feedback. By the time I was reassigned to another judge four and a half months later, I was well on my way to being a polished trial lawyer with a firm understanding of all aspects of criminal trial work.

This story is about my very first trial. I had promised myself that I would never lose a case. This is the story of how that promise worked out.

The DA at that time was Harry Connick Sr., the father of the famous musician Harry Connick Jr., who was around ten years old when I went to work for his father. According to the scuttlebutt in the court house, Harry Sr. never tried a case. He was a pure politician. He got elected, he set policy, he hired good people, and they did the work. Harry campaigned on the proposition that his office rarely lost a case. He claimed that his record was 95% wins. What the public didn’t know was in order to do that, he turned down cases in which the police were positive they had the right guy but that the case wasn’t open and shut.

That policy resulted in a substantial number of criminals being released without even the chance of being convicted. It was a dubious strategy that I didn’t agree with. Often, a defendant who knew he was guilty could be convinced to plead guilty to either the crime charged or a lesser crime and agree to do some jail time rather than roll the dice in a jury trial. The criminal knew that if the DA took the case, there was a chance he might be convicted and have to do a much longer sentence. He might not be willing to take the chance of a guilty verdict. If the DA took more cases, it would have certainly resulted in more criminals ending up behind bars. But Connick had taken a different tact because he was a politician. He wanted to say his office won 95% of its cases. The whole truth was his office won 95% of the cases his office accepted, AND he turned down a lot of cases other DA’s would have taken a shot at. Big surprise—he didn’t advertise the whole truth.

So, when I was lined up to try my first jury trial, knowing the policy of the office, I felt like I had a very good chance to start my career with a win. Juvenile Court and Magistrate Court didn’t count in my book. Real trial lawyers tried jury trials. This was it! I was pushing away from the dock. Setting sail!

When I read the file, I got excited that it looked like fishing in a barrel. The defendant had done several stupid things, and he was going down!

According to the file, he had taken a forged prescription into a drug store and presented it to the pharmacist. The pharmacist immediately saw that it was forged and called the police; he waited until the police were in the store before he announced on the loud speaker that the prescription was ready to be picked up. The defendant could not have helped but notice that the police had arrived, but he continued with his attempt to get the drugs he wanted. When the defendant picked up the prescription, he was immediately arrested with the drugs in hand. The prescription didn’t have the defendant’s name on it. It had someone else’s name on it. This seemed like an insignificant detail to me at the time. The doctor’s signature wasn’t real. The whole thing was a lie, and it looked like an open and shut case.

I was in my little office off the court room when another, more experienced Assistant DA came in and asked me what case was going to trial that day. I told him about this one. He said, You can’t win that!

My experience with competition was that expecting to lose usually led to a loss. I told him I didn’t want to hear anything negative and to get out of my office.

The trial seemed to be going well when we picked the jury. I had never even seen a jury picked, but I had prepared and did, I think, a credible job. I liked my jury. After I made an opening statement, my opponent waived opening. He elected not to address the jury at this time in the trial. This seemed strange, but I thought, What the heck? It might be a good tactic.

I called my first witness, the pharmacist.

The defense attorney immediately offered a stipulation. A stipulation is an agreement that certain facts are to be considered as true and proved. If one side offers a stipulation to the other side, it can be accepted or refused. If it’s accepted, no proof is needed for those facts, and the judge explains to the jury that they are to consider those facts as proven. If the stipulation is refused, not taken, it’s as if it were never offered.

This stipulation he offered said that the prescription was forged, was for a controlled substance, and that his client had presented it to the pharmacist. He also wanted to stipulate that the pharmacist had given his client the drugs, that his client had, in fact, paid the pharmacist for the drugs, that the drugs were a controlled substance, and that his client had received the controlled substance from the pharmacist.

I didn’t take the stipulation. I wanted to present my case. So, I called the pharmacist and the police to the stand to testify.

The defense attorney asked the police if they were in uniform when they entered the store. Was it obvious to anyone looking at them that they were police? He established that there were only a few other customers and that the police officers’ presence would have been obvious to anyone looking around the store.

I offered the prescription into evidence. Defense counsel had no objection.

On cross examination, the defense attorney asked the pharmacist what the name of the person the forged prescription was made out to and confirmed that it was not the name of his client. He had no other questions for the pharmacist.

I rested my case, completely confused.

Defense counsel called no witnesses!

I made a short closing argument explaining that it was against the law to obtain the controlled substance using a forged prescription and that all the elements of the crime had been proven.

Defense counsel then made his closing argument. He said that his client was on his way into the drug store when a woman in a car full of children pulled up in front of him and explained that her husband was sick, and some of the kids were sick and very young, and it would be a big favor to her if his client would get the medicine for her husband since he was going into the drug store anyway. His client had agreed to help out the lady with the kids and brought the prescription to the pharmacist, unaware that it was forged or that it was for a controlled substance. His client had seen the police enter the drug store before he went back to get the filled prescription when it was announced, but he thought nothing of it since he had no idea that it was forged.

According to the Code of Criminal Procedure, I could have made a rebuttal argument. I could not point out that if that story was true, the defendant would have told it to the police at the drug store that night. Why not point out the woman in the car with the children? If I had made that argument, it would have caused a mistrial. The Fifth Amendment precludes any attempt to punish a defendant for not speaking. The right to remain silent includes the right to keep the DA from pointing out that the defendant remained silent.

Richard Prior told a joke about an invisible roach. He was picking up his date, who wasn’t quite ready. He was sitting on the couch with her father when a roach ran across the floor and onto the couch. Prior said, Of course, I didn’t see the roach, and, of course, her father didn’t see the roach.

The fact that the defendant didn’t tell the police any of the story about the lady in the car with the kids is the invisible roach in this case. I couldn’t point to the roach, and the defense attorney, like Prior’s date’s father, wasn’t going to point to the roach. I could only hope that the jury would see the invisible roach.

The jury found the defendant not guilty in less than an hour.

So much for being undefeated. I started my career 0 and 1.

2

ARSON EYEWITNESS AND A CONFESSION

- Open and Shut -

There are two defenses to rape and two defenses to arson. They are the same. For rape, the two are It wasn’t rape or It wasn’t me. For arson, the two are It wasn’t arson or It wasn’t me.

I was appointed to represent a man who was charged with arson. The evidence against him was daunting. There was an eyewitness, and there was a confession. The assistant DA who was assigned the case was justifiably confident.

One thing made absolutely no sense: My client supposedly set fire to the house next door to the house he was living in. In that neighborhood the houses were shotgun houses with narrow alleys between them. A fire in one house would almost definitely spread to the house next door.

Following my standard procedure, I found out as much as I could about the case before I went to talk to my client in jail. All of my clients were in jail when I was a public defender because Judge Ward thought that if a defendant had enough money to make bond, he should hire his own attorney. If he couldn’t make bond and pay for the bond that would release him, Judge Ward would appoint me to represent him. As a public defender in his court, all of my clients were in jail.

When I went to see this client, I soon realized that he was profoundly mentally disabled. He didn’t understand why he was in jail, but he really wanted to please, so no matter what I asked him, he readily agreed. He admitted that he set the fire when he perceived that that was what I wanted him to say. Then he agreed that he had not set the fire. He didn’t like being in jail, and he wanted to see his mother, who came to see him as often as she was allowed.

I had represented criminals for a while now, and I knew that, generally, they aren’t the brightest people. But I’d never represented one who was this disabled. Talking with him was getting us nowhere. The defense I had been starting to formulate in my head wasn’t going to work. My idea before I spoke with him was that he couldn’t have done it because setting fire to the house next door would absolutely make no sense. After talking with him, I realized that he might not have been able to figure that out. But it was the kind of mistake he was capable of making. He could have done it.

I thought I might be able to say that he didn’t start the fire on purpose—that he was playing with matches.

I didn’t know what I was going to do with this case, but I was certain that keeping him in Orleans Parish Prison was not appropriate, even if he did do it.

When I drove by his address, I wasn’t surprised that he lived in a very poor black neighborhood. I knocked on the door and introduced myself to his mother. She had heard that public defenders didn’t do a good job for their clients. In New Orleans, that couldn’t have been farther from the truth. The man who ran the public defender’s office tried to get along with the judges and would appoint the attorneys recommended by the judge in the section that that attorney was going to work. Usually, the judge chose an ex-assistant DA who he was familiar with and knew would take the job seriously. The New Orleans public defender’s office was full of some of the best ex-assistant DAs that had worked in the New Orleans District Attorney’s office

But the public had a negative impression, mainly because it was hard to win a criminal defense case in New Orleans. City District Attorney Harry Connick Sr., who I mentioned in the previous case, was a politician who pursued only cases that were nearly impossible for the city to lose and which he considered open and shut.

The public saw that people who were charged by the DA with crimes and defended by the public defender’s office were very often convicted. Their perception was that we were not doing a good job.

My client’s mother was polite but skeptical that I was capable of helping her son. She was surprised that I had taken the trouble to come see her. She confirmed that her son was severely retarded. I convinced her that she should come to the trial and testify if I called her as a witness.

The police report showed that the witness’s address was across the street from the fire. I always asked for and received the criminal record of witnesses. It wasn’t unusual for black people in that part of town to have run-ins with the law. In this case, I was pleased to see that this witness had an extensive record of criminal activity. He was not your typical state’s witness.

According to the report, as part of the police investigation of the fire, the police canvased the neighborhood for witnesses. When people weren’t home, they came back. On their third pass, they discovered the witness, who had apparently not been home or at least had not answered the door when the police passed the first two times. They caught him coming out the door.

The police took the statement of the witness, who immediately claimed to have seen my client set fire to the house across the street. When they went to talk to my client, he confessed. Case solved!

At the trial, the police were called first. They looked very professional and proudly described the excellent work they had done. They told the jury that they had found a witness, and they told the jury that the defendant freely and voluntarily confessed to the crime without coercion after they advised him of his rights and mentioned there was an eyewitness.

On cross examination, I always ask the same question: Isn’t that so? and expect an affirmative or negative response. In this manner I am really the person testifying.

I used the same cross examination on both officers, starting with: You always want to get a confession if you can when you investigate a crime. Isn’t that so?

Both police officers admitted that they always wanted a confession if they could get it.

I asked, "My client gave you what you wanted.

Isn’t that so?"

On this they squirmed and tried to avoid a simple yes or no and said that they wanted the truth. But you wanted a confession, and he gave it to you. Isn’t that so?

Smelling a rat, each squirmed again as he tried to avoid a simple yes or no and once again said that they wanted the truth.

"According to the report, the first two times you canvased the neighborhood, the eyewitness wasn’t

home. Isn’t that so?"

Yes, they both said.

The third time you came to the neighborhood, you caught the man you call the eyewitness just as he was leaving the house.

Yes.

"When you questioned him about the fire across the street from where he lived, he told you that he

saw my client start the fire."

Yes.

That was exactly 16 days after the fire.

Yes.

Last question. You noticed that my client was a little strange.

No.

You didn’t notice that my client was different?

No.

Nothing unusual about my client?

No.

The last question was out of right field, but I could tell it set the jury to wondering what was wrong with my client. Where was I going with this?

The DA then put on the eyewitness, who dutifully pointed to my client as the man he saw set the fire.

On cross examination I started with, You told the police that my client started the fire. Isn’t that so?

Yes.

Because you are a good citizen and you wanted them to know who did it. Isn’t that so?

Yes.

So, you called the police as soon as you saw him set the fire.

He started to see the trap and took a few seconds to say, No I didn’t call the police right away.

In fact, you never called the police. Did you?

No.

I continued. The first two times the police came to your house, you didn’t open the door. He replied, I don’t know about that.

You pretended not to be home.

No, I didn’t pretend.

The police caught you coming out of your house more than two weeks after the fire.

I guess so.

And you were afraid that they were going to say you did it.

No that’s not right.

You have had trouble with the police before.

Yes. Did my time.

When the police asked you about the fire, you were afraid that they were trying to blame you. Isn’t that so?

I didn’t know what they were doing.

Right, but you were afraid that they were trying to put the arson charge on you.

I didn’t know what they were doing, but I saw that guy set the fire and I told them.

You have been to prison for theft twice. Both felonies.

Yeah, but I didn’t set this fire.

Before the theft convictions, you pled guilty to simple burglary and got a suspended sentence—another felony.

So?

If you got convicted of arson, you would be a four-time loser and would go away for life.

But I didn’t do it. They got nothing on me.

You were afraid that the police suspected you of starting the fire, and you knew that there was a severely retarded man who lived across the street—a man who would say anything people wanted him to say.

No.

And if he confessed, you were home free. They would leave you alone. Which is exactly what happened. You don’t have to answer that question. That’s all I have, Your Honor.

The DA then put an arson expert on who testi-

fied that the fire was intentionally set, that is, it fell under the category of arson.

I asked the expert only one question: "You know that someone lit the fire, but you really can’t say that they intended to set the house on fire. It could have been a child playing with matches. Isn’t that so?

He had to admit that that was a possibility.

The state then rested.

I put my client on the stand and asked, How are you doing today?

Good, he said with a big smile.

What’s going on today?

He didn’t answer and looked confused.

Are you having a good day?

He grinned. Good day.

Who are these people over here? I asked