Issue 179
January 11, 2002
- - - IN THIS
ISSUE - - -
Case Law Review
R. v. P.R.F., Ontario Court of Appeal, December
27, 2001
Case Note
R. v. Kerr, Ontario
Court of Appeal, December 27, 2001
Articles
Christie Blatchford, Destroying
Evidence sets an Eerie Precedent. The
National Post, December 22, 2001
Jane Fritsch, Pataki Is
Rethinking Promise of Pay Raise for Lawyers Who Defend the Indigent. The
New York Report, December 24, 2001
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CASE LAW REVIEW:
R. v. P.R.F. et al, Ontario Court of Appeal, December 27, 2001
In this decision, appeals against six separate trial-level refusals to make DNA databank orders resulted in a clean Crown sweep. The 6 respective appeals all dealt with fact scenarios where the sentencing judge had a discretion to make a DNA order if it was in the “best interests of the administration of justice” to do so. In the appeals before the Court, then, this included either the commission of a secondary offence after June 30, 2000 (the date the legislation came into effect) or of any designated offence prior to the in-force date.
Justice Rosenberg began the judgment by clarifying the route of appeal from DNA orders/refusals, which is not immediately discernable from the legislation. The common sense inference, that DNA orders/refusals made in indictable matters would go to the Court of Appeal and those in summary conviction matters to a summary conviction appeal court, was given effect. The legislation, similarly silent on the powers an appellate court would wield in terms of remedy, was interpreted to mean that the appeal court has the power itself to make a DNA order, or to remit the matter back to the trial court.
The standard of review for appeals of DNA applications is that of an appeal of sentence: great discretion will be accorded the sentencing judge, absent an error in principle, failure to consider a relevant factor or overemphasis of appropriate factors. Having established that the standard of review involves considerable deference to a sentencing judge, the Court then overturned all 6 refusals, by the 5 respective sentencing judges, to order that DNA samples be taken.
Relying heavily on the Court’s earlier decision in R. v. Briggs, Justice Rosenberg held that in most cases it would be in the interests of the administration of justice that a DNA order follow pursuant to a s. 487.051(1)(b) or 487.052 application. Some faint light for defence counsel with clients less willing to part with their bodily fluids, however, is found in his comment that “the description of some of these (primary or secondary designated) offences can also embrace some relatively minor conduct. For example, assaulting a police officer is a secondary designated offence, but this could include merely pushing a police officer who was in the execution of his or her duty. The trivial circumstances of the particular offence may be a factor favouring not making the order.” [at para 23]
Another ray of hope for defence counsel is found in the distinction drawn between taking fingerprints and taking a DNA sample, a distinction that Justice Rosenberg takes great care to make. The collection of fingerprints has the simple impact of linking prints to an identity. However, in the collection of DNA the government has the power to garner far more information than merely identity. The most intimate details of a person’s complete genetic make-up rests in the hands of the state. As Justice Rosenberg notes, it is current policy for the DNA databank to use only “junk” DNA, which does not predict any mental, physical, or medical characteristics. He then points out that this “policy or convention is not, however, written into the legislation….if government policy changes in the future the present limitations on the use of the information and the conventions for analysis may also change. The risk that information about medical, physical, or mental characteristics may be obtained and used for purposes other than forensic comparison cannot be entirely discounted.” [para 21]
Relative to the actual making of an application pursuant to this legislation, it is noted that neither party bears a strict burden of proof under 487.051(1)(b) and 487.052. Rather, ordering the provision of a DNA sample is a matter of the sentencing judge’s discretion. However given that the Crown makes the application, Justice Rosenberg held, it is incumbent upon the Crown to satisfy an evidentiary burden and produce sufficient evidence to raise the issue.
[Justice Rosenberg compares this evidentiary burden to upon defence counsel requesting the imposition of a conditional sentence, which begs an interesting question. In that defence who submits a conditional sentence is appropriate must convince the court of the appropriateness of that sentence to that particular fact situation and that particular offender, one could suggest that a similar evidentiary burden to demonstrate appropriateness to that particular offender might rest upon the Crown. In other words, the burden on the Crown would not be satisfied by the standard generic Crown submission that the taking of DNA is a minimal intrusion upon privacy, that there is a reduction of privacy following upon conviction, that the collection of DNA is important to the investigation and prevention of offences, and so on. Perhaps a Crown who seeks a DNA order on the basis of the offender’s criminal record could be requested to provide more information about the facts underlying the convictions in order to satisfy the burden, as opposed to simply relying upon CPIC entries. As Justice Rosenberg points out in the different context noted above, an assault police conviction can be conduct as minor as a push.]
In the first companion case before the Court, Justice Rosenberg held the sentencing judge fell into error in declaring s. 487.052 to have no retrospective effect. The DNA legislation, which was declared in force on June 30, 2000, was intended to address offences committed prior to the coming into force of the Act. The Court found that this particular section did have application to offences committed prior to June 30, 2000, as long as that same matter was still before the court subsequent to June 30, 2000. If the sentence had been imposed prior to the in-force date, the sentencing court would of course be functus and a retrospective DNA order could not issue.
In the second and third companion cases, Justice Rosenberg overturned the sentencing judge’s refusal to make a DNA order upon convictions for break and enter. The respondents and co-accused were each convicted of one count of break and enter, a criminal endeavour described as inept by the sentencing judge and committed while in a state of great intoxication. Each respondent had a lengthy criminal record composed primarily of property offences, but including some offences of violence as well.
The sentencing judge had found grounds for DNA orders did not exist in either case, given the ineptness to the offences, the primary criminal history was for property offences, there was not a discernable pattern for more serious offences in the record, and that the collection of DNA samples was not going to advance to any great degree the investigation of offences like B&E. This, Justice Rosenberg held, was a misapprehension of evidence and of the purpose of a DNA order which allowed the appellate court to intervene. The primary basis for the error was the failure to give due account to the respondents’ extensive criminal records, including those convictions for violent offences. He further noted that DNA could assist in the investigation of property offences, that it is not necessary for a pattern to exist before an order can be made, and that the privacy intrusion on “these mature offenders with their lengthy records, including several prison sentences, to be minimal”. [at para 37]
The next databank refusal to be overturned involved a respondent convicted of six counts of sexual interference. The sexual misconduct complained was touching and fondling, with the respondent showing little insight into his own behaviour. The respondent had a criminal record for breaches, property offences, and seven prior offences for sexual misconduct with children. In refusing to make a DNA order, the sentencing judge noted that bodily fluids were not indicated on the facts, as none of the six convictions were for non-consensual sexual intercourse Justice Rosenberg held that a DNA order could have been made on the basis of the criminal record alone in this case. In addition, Parliament could not have intended to restrict the making of such orders to those circumstances to cases where there was intercourse. Justice Rosenberg also disagreed with the sentencing judge’s depiction of the taking of DNA as a “significant” invasion of privacy, holding that in comparison to the sentence of imprisonment and the order to stay away from playgrounds, schools and the like, removing a bodily fluid for DNA purposes was a minimal intrusion.
The final individual case considered the appropriateness of a DNA order where the all offences of violence on the respondent’s record were restricted to a solitary victim in the context of domestic violence. The error identified was the sentencing judge’s conclusion that, since the violent offences were confined to one victim, identity was not an issue and DNA was not necessary. Justice Rosenberg pointed out the sad fact that, where domestic violence escalates in seriousness, the victim may be unavailable to come to court. Further, in domestic abuse situations, DNA could possibly play a pivotal role in identifying offenders where the victim is unwilling or unable to testify against their abuser.
All six appeals were allowed and orders for the provision of DNA samples made in respect of each respondent.
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CASE NOTE:
R. v.Kerr, Ontario Court of Appeal, December 27, 2001
A sentence of 18 months incarceration, imposed for 3 counts of trafficking in heroin and one count of improper storage of a firearm, was overturned on appeal and a conditional sentence substituted. The appellant, a relatively young man of 27, had no criminal record. The pre-sentence report had indicated the appellant to be a suitable candidate for community supervision and that imprisonment would serve to negate the progress made in fighting his substance abuse addiction.
Justice Abella for the Court held that the sentencing judge had over-emphasized general deterrence in imposing sentence, and further noted that care should be taken in placing too much weight on deterrence in deciding between a conditional sentence and incarceration. She pointed out that “the empirical evidence suggests that the deterrent effect of incarceration is uncertain” and that deterrence in a community sentence can certainly be accomplished through conditions such as speaking out about the offence to members of that community, in furtherance of a cautionary message. In conclusion, Justice Abella stated that “Although the seriousness of the offence is clearly relevant, to underemphasize rehabilitation in this case would, on the other hand, send the unwarranted signal that courts will sacrifice evidence of considerable rehabilitative progress on the altar of general deterrence.” [at para 17]
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This article
appeared in The National Post, dated December 22, 2001.
By Christie Blatchford
What the serial killer Paul Bernardo wanted to accomplish, what lawyer Ken Murray was once accused of trying to help him manage, the Ontario government has now succeeded in doing – and now, we’re told, it’s a good thing.
The notorious videotapes which documented the torture and sexual degradation of teenagers Kristen French and Leslie Mahaffy – both the VHS copies left over from Bernardo’s prosecution and the 8-millimetre originals he once hid in the bathroom ceiling of his St. Catharines, Ont., house – were incinerated at a secret location in southern Ontario last week while the girls’ families, their lawyer, and some police officers somberly watched.
In fact, the destruction of the tapes, as well as literally a truckload of other evidence from the case, also would have remained a secret but for the fact that the dead girls’ parents are graceful people who wanted to tell Canadians, who have long supported them in their self-described quest to protect the memory of their murdered children, that the thing had been done.
They wanted, their lawyer Tim Danson said yesterday, their fellow citizens to feel a measure of the relief they had experienced seeing the hideous stuff go up in flames – the tapes; Karla Homolka’s “hope chest” to which Kristen had been tied in her last hours; the cold metal tools Bernardo used to dismember Leslie’s slim frame; reams of autopsy pictures and other court exhibits.
The police, of course, never did find the tapes in the bathroom ceiling, but Mr. Murray, Bernardo’s first lawyer, did, and he held on to them for about 15 months before turning them over to the authorities. This was a bad thing, allegedly because it forced the Crown into making a devil’s bargain with Homolka, Bernardo’s former wife and enthusiastic accomplice. Nothing, mind you, ever explained the zeal with which the Crown embraced both the deal and its wretched beneficiary.
While the tapes were in Mr. Murray’s possession, Bernardo at the 11th hour tried to convince the lawyer to “bury” them, not use them, as was planned all along, in his defence.
That was a bad thing too. Mr. Murray, essentially, told Bernardo to blow that idea out of his bum, got himself off the case, and arranged for the tapes to go to the police. For his tardiness, Mr. Murray was charged criminally with attempting to obstruct justice – he was acquitted in the spring of 2000 – and publicly vilified.
Mr. Danson, on behalf of the families, has long been working to have the tapes destroyed: in 1996, he got an order from Mr. Justice Patrick Gravely allowing it to happen, subject to what’s called the interests of the administration of justice.
Basically, that meant when all the known corollary cases stemming out of the Bernardo case – Mr. Murray’s trial, a pending case against an author which was eventually dropped, and Bernardo’s own appeal opportunities – were over and done with, the case could be made for destruction.
This is just what happened: Bernardo failed to win an appeal at the Supreme Court of Canada last fall and ran out of options; the other cases were finished; Mr. Danson began pressuring the Ontario government in earnest, and sure enough, Attorney-General David Young, having “satisfied myself there would be no adverse consequences” as he said yesterday, quietly gave the green light, and secretly, the whole shebang was put to the fire two days ago. It appears that had the families not insisted Canadians be told, we would not have been informed.
It is, I believe, utterly unprecedented that evidence from a criminal trial should have been so formally, deliberately, and secretly destroyed – let alone with state sanction and official good cheer.
What usually happens is that at the conclusion of a case, evidence returns to the evidence-gatherers, the police. Sometimes, in their care, as lawyers for those who claim to be wrongly convicted know full well, such aged evidence is lost, or misplaced, or disappears.
But where it has been found, it has also been useful in belatedly proving convicted men innocent.
No one is suggesting that Bernardo is innocent. No one suggests that anyone but Homolka was involved. But Bernardo will be eligible for parole some day and there will be a parole hearing; Homolka could yet change her mind and try to get out of jail before her July, 2005, mandatory release date – and no one seems to have considered the possibility that some day this slippery little blonde could be charged with another awful crime. My view here is that much depends on who is the first man Homolka hooks up with on the outside.
In all of these unpredictable circumstances, the hard, utterly irrefutable, best evidence against both Bernardo and Homolka were the tapes, not the inanimate written transcripts which remain.
Mr. Danson said last week’s ceremony was “very, very solemn” and meaningful for all who attended. The French and Mahaffy families, he said, were “crippled by the fear of dying and having this material [the tapes] still around.” Everyone felt “the sense of setting them [Kristen and Leslie] free” and the comfort of “knowing what we were doing was the right thing.”
Mr. Danson said it was cathartic, that the quiet group felt “we were destroying evil, restoring the girls’ dignity and humanity.” Aaaah, if only it were as easy as that. The pink Bernardo-Homolka martial home has been razed; the tapes burned to nothing; it’s as though the crimes never happened, and yet Kristen and Leslie remain dead.
Mr. Danson had promised the tapes would be destroyed by year’s end if he could manage it, he said yesterday. “That was going to be my Christmas present to them.”
They got it, and the hardest heart would not begrudge them. But it is a terrible, unsettling precedent when the families of crime victims get to dictate what happens to the state’s evidence, and not much of a present for the rest of us.
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The following
article appeared in The New York Report, dated December 24, 2001.
By Jane Fritsch
Gov. George E. Pataki, who promised nearly a year ago to increase pay for lawyers who represent the poor, is reconsidering that pledge because of huge new budget deficits projected for the state.
Legislators and court officials had hoped to push through a pay raise in the fall, but were set off course by the financial impact of the attack on the World Trade Center. Now they say they do not know how they will resolve the growing problem of defending the indigent in New York, where appointed lawyers are paid the second-lowest rate in the nation: $40 an hour for courtroom work and $25 an hour out of court. The rates have not been raised since 1986.
Some lawyers take hundreds, even thousands, of cases each year in order to make a full-time living from court appointments. The huge caseloads force many lawyers to cut corners, leaving clients with little meaningful legal help.
The situation is a growing embarrassment for New York, lawyers and court officials said in interviews recently. Legal experts in other states have said that New York’s system of defending the poor is as troubled as those in places commonly thought to be much tougher on defendants, like Texas and Alabama.
“I don’t talk about this to people in other states; I’m too ashamed,” said Judith S. Kaye, New York’s chief judge, in an interview last week. “It is a disaster, a catastrophe, and I can’t think what the next word is.”
Joseph Conway, a spokesman for Governor Pataki, said the issue of lawyers’ pay is among many that have to be re-evaluated because of new budget concerns. “We recognize that the current rate schedules haven’t been changed in many years, and that increases would be in order,” Mr. Conway said. “However, the fiscal impacts form Sept. 11 have been tremendous, and any potential increase would have to be analyzed with that in mind.”
In the year since Mr. Pataki appointed a committee to work out a pay raise for court-appointed lawyers, problems of inadequate representation have worsened, especially in New York City, according to judges and court officials. Fewer lawyers are willing to take cases, and those who accept appointments are being urged by beleaguered state court judges to take more than ever, officials said.
The lack of action by the state, which sets the pay rates, may mean that the issue will be settled by the courts.
Last week, Judge Jack B. Weinstein of Federal District Court in Brooklyn, ruled that the fees in state courts are so low that they deprive defendants of their right to counsel and are therefore unconstitutional. Judge Weinstein said the lawyers should be paid $90 an hour for their work in and out of court, but he stayed the ruling’s effect for six months to give the city and state time to appeal.
The ruling applies directly only to a small group of Family Court cases involving women who were victims of domestic abuse and had lawyers appointed to represent them, but lawyers said its effect could be broader. “It’s an incredibly important case because it is the first case where a judge has declared the statutory rates unconstitutional,” said Zachary S. McGee, a lawyer with the firm of Davis, Polk & Wardwell. The firm has filed suit in State Supreme Court in Manhattan on behalf of the New York County Lawyers Association, which is seeking to have the rates raised for all appointed lawyers, including those who work in the criminal courts. “It’s an important precedent for judges to look at,” Mr. McGee said.
Lawyers for the city did not dispute that the pay is too low, but urged Judge Weinstein not to get involved in the matter. “This gets the federal court involved in a very difficult and delicate question of who’s going to pay for this at a time when the state and the city are facing significant fiscal burdens,” said an assistant corporation counsel, Jon Pines.
But Judge Weinstein said, “I don’t care how the city get its money. I’m protecting individual constitutional rights.” A wide range of cases make clear that when the court says that something has to be done, “it’s up to the authorities to get the money to do it,” he said. “I’m convinced that constitutional violations are continuing and they are of a serious nature.”
While the rates are set by state law, the bills must be paid by city or county governments.
Judge Kaye, who has been pushing for higher rates, said last week that she intended to keep up the pressure on Albany. “There’s nothing I’m more committed to,” she said. “I know that it is my responsibility to convey to them how serious this is.”
Judge Kay said she has spent “many sleepless nights” in the last year worrying about the situation, and particularly about some cases described in a series of articles in The New York Times last spring.
In examining the handling of all homicide cases in New York City in 2000, The Times found that most appointed lawyers skipped some basic legal work, like hiring private investigators to look for witnesses or evidence. Most of the lawyers did not get expert witnesses, like psychiatrists or pathologists, to help challenge the prosecution’s case. Most did not take the time to go to the scene of the crime, and most did not made a single visit to the jail on Rikers Island to discuss the case with their clients.
And there is such a shortage of lawyers willing to do the work that one was assigned more than 1,600 misdemeanor cases last year. He sometimes fled from his clients in courthouse hallways, and failed to return many of their telephone calls. Court officials said last week that judges stopped assigning cases to him and that he has no more cases pending.
Another lawyer, who was assigned 805 parole-violation cases last year and frequently spent only 30 minutes on case preparation, has resigned from the panel of lawyers eligible to represent indigent clients, officials said.
But officials have been unable to make any broad improvements in the quality of indigent defense work because of low wages and the lack of lawyers willing to take the cases.
Some court officials and legal experts said recently in interviews that the crisis in representation for the poor has become so serious that a broad overhaul of the system, long resisted by various factions, may now be possible.
In nearly all big cities, defense of the indigent is handled by a public defender’s office, a government agency that has a staff of lawyers, supervisors, investigators, secretaries, experts and sometimes social workers. But New York has a hodge-podge system that relies heavily on private lawyers who work on their own with no supervision and little support. Sometimes, they don’t even have offices.
In New York, the Legal Aid Society, a nonprofit organization, was supposed to function like a public-defender’s office, representing nearly all indigent defendants. But it was weakened in a dispute with Mayor Rudolph W. Giuliani and now represents only about half of the roughly 385,000 people arrested on misdemeanor and felony charges each year. Smaller organizations were created to handle some cases. But about 115,000 indigent defendants are assigned to private lawyers each year, as are roughly 170,000 more who have gotten summonses for low-level violations as part of Mr. Giuliani’s quality-of-life campaign.
Court officials said the idea of a public defender’s office would be studied along with other possible changes as soon as the more immediate problem of low rates for appointed lawyers is resolved.
It has been nearly two decades since such a drastic change has been discussed. In 1982, Edward I. Koch, then the mayor, suggested that a public defender’s office might be created to replace Legal Aid and handle nearly all cases in the city. Like Mr. Giuliani, he was angered by a strike by Legal Aid lawyers.
Mr. Koch said that there had been little support for the idea at the time. “The city was very left wing,” he said last week. “There was a lot of support for Legal Aid and there was no support for a public defender in the City Council,” he said. But times have changed, he said, adding, “I think today a public defender is doable.”
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If you want divorce without war there’s no point getting Joel Weissman. You want an all-out assault – air strikes and ground troops – that’s when you hire the West Palm Beah-based lawyer.
Despite the tailored French-cuffed shirt that’s de rigueur for pricey divorce lawyers, Weissman, 51, still looks very much the street fighter. But then he has third-degree black belts in several forms of martial arts including Kung Fu and Jujitsu.
Built solid and low to the ground, the former prosecutor is your man if: A) You’re trying to pry that 6-carat brilliant-cut rock, custom bedspread and 20-speed bicycle from your ex-fiancee, like construction mogul Dan Catalfumo, or, B) You’re a suspicious but quick-thinking wife who decides to have the bed sheets checked for DNA evidence of infidelity, in the vein of Loxahatchee dressage competitor Nanette Sexton Bailey.
Weissman, who aptly has his office in what is known downtown as the Darth Vader building, has gleefully cultivated a reputation as a pugnacious, high-stakes divorce lawyer. Though it would be gauche to revel in it. “I still don’t realize I’m a celebrity divorce lawyer,” Weissman says.
But then there are all those appearances on CNN’s Burden of Proof, 20/20, 48 Hours, Inside Edition and newspapers across the country.
Weissman’s latest case has been making headlines around the world and was even featured in People magazine. It involves the wife of the former chief of Massachusetts Financial Services, Richard Bailey.
Even in the milieu of nasty divorces, a 74-year-old man allegedly caught with his pants down by a wife who decided to DNA-test the bed sheets rather than just boo-hoo about it is an attention grabber.
You don’t need grounds for divorce anymore in Florida, but Weissman is trying to use the adultery claim to trigger an amendment to the Baileys’ marital agreement. Weissman’s client, the fourth Mrs. Richard Bailey, accuses her husband of a dalliance with one his previous wives. If Weissman prevails, his client would get a bigger share of Richard Bailey’s fortune as well as alimony.
The husband’s attorney, Jeffery Fisher of West Palm Beach, has come up with an interesting legal angle of his own: The divorce can’t proceed because the husband is out of his mind with advanced dementia.
The case that launched Weissman’s career as the divorce lawyer for the wickedly wealthy was no less titillating. In 1990, Weissman represented James Sullivan, a Jay Gatsby-type character accused of offing his estranged first wife by hiring a hit man disguised as a florist who appeared at her door with a dozen pink roses. Sullivan’s second wife, the exquisitely exotic Suki Sullivan, worried she might not survive the marriage either after her husband allegedly admitted that he really did kill his first wife, socialite Lita Sullivan of Buckhead, Georgia.
Weissman was up against his former law partner and early role model, Ronald Sales, who represented Suki, a native of Korea. But when Weissman was finished, Suki came out of the marriage with little more than the pantyhose on her size 0 self; she even lost the lap dog, Coco.
James Sullivan now is on the lam for murder charges. No word on Coco.
Since that case, there have been other rich clients and more outrageous headlines. There was Ruth Dean, second wife of the late auto dealer Roger Dean, whose request for temporary support included private jet flights to Manhattan to get her hair done; Catalfumo on two previous trips to the alter that went awry; and marital splits involving an heir to the Exxon fortune and a partner in the New York Yankees.
The rich get divorced for the same reasons as everybody, Weissman says. The romance is dead, there’s an affair or tow or there’s abuse in the forms of physical, psychological, alcohol or substance.
But the stakes are a lot higher. Instead of debating who has to take over payments on the Hyundai, they’re splitting up Bentleys, Bugattis and Aston Martins.
And Weissman is in for the fight – tooth, nail , depositions and asset allocation experts – no matter how absurd the object of the dispute might seem to outsiders. It’s not his place to judge what’s meaningful to his clients.
“I’m an aggressive, in-your-face lawyer who passionately represents his clients,” Weissman says. “The passion is no less great if it’s children involved, dogs involved or a television involved.”
Where There’s Smoke, There’s Fire
Robert Montgomery would like to remind people that he wasn’t exactly poor before “tabbaca,” as he calls it in his Alabama twang. He wore the $3,000 Brioni suits, lived in a waterfront Palm Beach mansion, and donated heaps of money to various arts long before the Big Tobacco case turned him into a national villain.
Sure, $210 million seems like a hefty paycheck, but when the state went looking for a dragon slayer, someone with the deep pockets and the winning ways to take on big, bad cigarette makers, they came a-calling on Bob.
Montgomery was the lead trial lawyer in a team of the state’s shrewdest and richest personal injury lawyers. The 11 lawyers bankrolled Florida’s lawsuit against tobacco companies by pooling $3.8 million.
On the eve of trial, with the case in jury selection, cigarette makers rolled over by agreeing to an $11.8 billion settlement. The lawyers’ share of the state’s take was $3.4 billion.
Montgomery was pilloried and vilified as the epitome of the “greedy trial lawyer” responsible for raising our insurance premiums, putting doctors out of business and all manner of other societal ills.
“It’s all propaganda by insurance companies,” says Montgomery, 71, who started his legal career in corporate defense representing insurance companies.
While he was no slouch at that (he had six offices around the state), he reached legendary proportions as a self-described tragedy lawyer.
A routine question lawyers ask during jury selection is whether anyone knows them either in person or by reputation. When it comes to Montgomery, most often they do. Montgomery has had a role in many of the major news events in Palm Beach County and areas north.
“A lot of people say hello to me and I don’t know them and that’s great,” he says. “But if I put on a pair of jeans and go to Publix, I don’t get mobbed.”
When a half dozen Boca Raton IBM employees died in the 1985 Delta Flight 191 crash at Dallas-Fort Worth airport, Montgomery collected more than $6 million in jury awards and settlements for their survivors. When Kimberly Bergalis became the first person infected with AIDS by her dentist, Montgomery was her attorney.
His client roster also has included Kathleen Ford, the widow of Henry Ford II, during a fight for his $350 million estate, and Palm Beach County Election Supervisor Theresa LePore, made famous during the butterfly ballot debacle.
He literally is a member of the Inner Circle, a select group limited to 100 personal injury lawyers nationwide who have obtained verdicts far exceeding $1 million.
Even those not familiar with his legal work know the name or face from all those public service spots featuring Montgomery and his law firms, lately Montgomery & Larson, on television and radio in support of the arts and an abused children’s shelter.
Montgomery and his wife, Mary, were among the founders of the Kravis Center for the Performing Arts, were major benefactors for the Palm Beach Opera, saved a museum in Lake Worth and largely paid for expansion of the Armory Art Center in West Palm Beach.
Culture and arts aside, it’s the courtroom where Montgomery really comes to life. He can describe in one word the feelings he has in front of a jury: Invincible.
“When you prepare a case for trial, live with the case, I’m indignant by the time I go in there to trial. The person I represent can’t speak and speaks through me. A lot of times, they’re already dead,” he says.
And Montgomery is bent on making the other side pay. “Money is the only measure we have.” But he is the first to admit he doesn’t always win. Without prompting, he brings up his recent defeat in a case in which he tried to hold Salvadoran generals accountable for the murders of two American nuns and a missionary 20 years ago.
“You remember your losses,” he says. “Heck yeah, a lawyer who has never lost a case didn’t try many cases.”
The People’s Choice
Howard Finkelstein has come full circle by way of O.J. Simpson.
There he was recently on Miami’s Channel 7 WSVN making legal commentary on O.J.’s road rage case – seven years after The Juice’s earlier brush with murder charges made Finkelstein a television personality.
A pony-tailed former crack addict who is a chief assistant at the Broward County Public Defender’s Office, Finkelstein now is a full-fledged TV celebrity. He even has his own TV segment, Help Me Howard, on the Fox network station in Miami twice a week.
“After O.J. ended (the first time), everybody wanted to know what I thought about everything. People would suddenly call me up for my opinion on the Middle East situation,” he says.
But Finkelstein was news before O.J. The last of the flaming liberals, he often made headlines in the ’70’s and ‘80’s as a champion of the downtrodden, successfully challenging many of the state’s and Broward County’s attempts to legislate propriety. He shot down laws allowing lifeguards to act as police officers and arrest beachgoers for smoking pot, laws banning the homeless from sleeping on beaches, and the police practice of testing people for drunkenness after they had passed out.
While some prominent lawyers write books, Finkelstein had a book written about him. But then he makes for a great story. It’s not every lawyer who can make this kind of headline: “From Crack Lawyer to Crack Addict and Back.”
Snow Blind, by Palm Beach Post reporter Douglas Kalajian, details Finkelstein’s rise, fall and resurrection. Before O.J. Finkelstein’s was already well known as an irresistibly quotable advocate for the homeless and mentally ill in Fort Lauderdale. Then in 1987, the champion of the unwanted was busted for cocaine possession. By the time his cocaine addiction had descended from snorting to freebasing to crack.
“I hate the book,” says Finkelstein, 48. “The reason I hate the book is it’s true. Doug got it – he got it right. I still haven’t forgiven myself. I became a man intent on making money, bedding lots of women. This is a horrible thing to see in print mostly because it’s true.”
But, with the help of his family and friends and after several attempts at rehab, he cleaned up.
These days, Finkelstein can’t believe his good fortune. Early in his television career, it dawned on him that people were really listening to what he said and he had a responsibility to help them understand the process without his usual pro-defense partisanship.
“I suddenly had an epiphany not to use the airwaves for my personal agenda, to provide a balanced framework using common sense and common decency,” he says.
Since O.J.’s murder trial, Finkelstein has given gavel-to-gavel legal commentary on the federal case against Oklahoma bomber Timothy McVeigh, the Marv Albert oral sodomy trial and the English nanny child-abuse case.
Now he gets stopped for autographs at restaurants. People thrust babies in his arms. And there was that fan in the men’s room at a Marlin’s game. “Some guy tapped me on the shoulder while I was urinating,” Finkelstein says.
And his day job isn’t going bad, either; Finkelstein was mentioned as successor to Broward County Public Defender Alan Schreiber before Schreiber decided against retirement.
Finkelstein believes he’s been thoroughly blessed. “I really do believe the Buddhists. Do each act for the intrinsic value of the act and good things happen. I wake up every morning and I love going to the courthouse and I’m happy going to the TV station.”
The fame isn’t that hard to take, either.
“I really love it,” Finkelstein says. “Any celebrity who tells you they don’t love it isn’t being honest.”
From Rags to Riches
Willie Gary doesn’t just appear on television, he runs a whole network. There’s also the Willie Gary Celebrity Golf Classic, where Gary’s partner is former heavyweight champion Evander Holyfield, and the Gary Foundation that provides scholarships to students who otherwise wouldn’t make it to college.
The son of itinerant farm workers, he picked beans and corn himself as a child. And only a fair-to-middling student – OK, he got Cs – Gary routinely wins stunning jury verdicts and settlements on behalf of people he sees as little guys.
The trappings of his success are obvious: there’s a Mercedes limo in his personal parking space; a glass-enclosed bust of himself in his office; diamond-encrusted watch on his wrist.
And although Gary calls himself the “Giant Killer,” his little-guy clients haven’t always jibed with public perception. In a rare foray into defense work, Gary in 1999 represented Palm Beach sugar barons, the Fanjuls, in Big Sugar’s battle with West Indies sugarcane cutters over back wages. He was rumored to have received $1 million for the job that some viewed as taking the side of plantation owners over the field workers. Nonetheless, Gary and the Fanjuls prevailed in two defense verdicts.
Mostly, Gary is called in to represent black plaintiffs against deep-pocketed corporate behemoths such as Microsoft, Burger King and Coco-Cola.
Sometimes conflicts arise involving Gary’s roles in the boardroom and the courtroom. Gary is chief executive and the main bankroll behind Atlanta-based Major Broadcasting Corp., a family-friendly cable network that targets African-Americans. At the same time he was pursuing Coco-Cola for discriminator practices, Coke signed a five-year sponsorship deal of his network. Gary has said the sponsorship deal was in the works before he took on the lawsuit against Coca-Cola.
Gary wasn’t available for an interview for this story,
despite repeated requests. His
full-time publicity wrangler said Gary was tied up in interviews with broadcast
networks after he donated scholarships for the children of a flight attendant
killed during the Sept. 11 tragedies.
Another attempt at an interview failed when Gary couldn’t get through on
the phone from his Gulfstream jet, The Wings of Justice.
If anyone needs his own plane and a pilot and co-pilot on staff, it’s Gary. His law office is in remote Stuart, his cable network is in Atlanta and he has major lawsuits pending in two dozen states.
One way to keep up with Gary’s comings and doings is through his glossy, color newsletter. A recent issue touted: “Gary Team Wins $139.7 Million in Maris vs. Anheuser-Busch,” “Gary Donates $100,000 to St. Paul College,” “Attorney Willie Gary and Sugar Growers Give $100,000 to Local Charities,” and “Medical Malpractice Case Settled for $12 million.”
There’s also the Willie Gary videotape, showing Gary running up courthouse steps to the theme music from Rocky. A voice-over introduction goes: “Meet one of the greatest lawyers of all time, Willie Gary.”
Gary’s philanthropy and courtroom prowess are just as over-the-top as his self-promotion. He has paid for a swimming pool, medical clinic and daycare center for migrant workers and poor families in Indiantown and Stuart. He gave $10 million to his alma mater, Shaw University in Raleigh, North Carolina.
And, in the courtroom, instead of parsing legal theories, or spouting the jargons of jurisprudence, Gary uses a combination of country charm and a tent revival preacher’s fevered oratory to sway juries to shower his clients with astonishing amounts.
Gary’s best-known victory is a $500 million Mississippi jury award against a Canadian funeral home chain, The Loewen Group, on behalf of a funeral home owner. The case eventually settled for $175 million.
Gary used the same winning style when he played defense for Big Sugar.
During jury selection, he characterized his clients – the wealthy and politically connected Fanjuls, who hailed from Cuban aristocracy – as an immigrant farm family who made good.
“When I say Atlantic Sugar Association, we’re talking about small-business people. They’ve got families,” Gary said. “Corporations have rights in America, you all agree with that? Small businesses have rights in this country, you agree with that?”
Afterward, the cane cutters’ lead attorney David Gorman admitted he all but expected choruses of “Hallelujah” and “Amen” to ring out from the jury pool.
Roy Wonder
When a kinky sportscaster, a bad-boy basketball star and a Kennedy found themselves looking at time in the slammer, they turned to Roy Black.
One of the most recognized criminal defense lawyers in the nation, with the possible exception of Johnnie Cochran, Black first entered the national limelight with the William Kennedy Smith rape trial in 1991. Tall and lanky, with a battered briefcase and a gosh-shucks smile, Black exuded a Jimmy Stewart-kind of charm; he seemed anything but a hired gun for America’s most famous family. (Or, for that matter, like the temporarily pony-tailed CNN legal analyst he became a few years later.)
Despite the woman’s tearful testimony against Smith, Black won the case after clearly winning over the jury, who took all of 77 minutes to return a not-guilty verdict. He also won the heart of one juror in particular, Lea Haller, whom he married after a courtship that started when they bumped into each other after the trial at Palm Beach’s Au Bar – where William Kennedy Smith met the woman on the night of the alleged rape.
About the Smith case, Black says, “It didn’t make me any better of a lawyer but it probably made me more well known.”
And Smith’s acquittal was no more miraculous than many other victories Black has pulled off, including cases that were dismissed, ended with hung juries or were reversed on appeal. Some of these included shootings by Miami police in two separate incidents, each sparkling days of rioting; former Miami Beach Mayor Alex Daoud on 45 federal counts including conspiracy and tax violations; bank president Fred de la Mata on charges of money laundering and bribery, and a woman known as the “Queen of Cocaine.”
Black’s other well-known clients have included Frasier star Kelsey Grammer, whom he represented on drug charges; sportscaster Marv Albert on an oral sodomy case; and former NBA player Dennis Rodman and starlet Carmen Electra on domestic violence charges after a night of partying on South Beach.
Black regularly appear on CNN and NBC, providing legal analysis on cases ranging from the Florida ballot issue last year to the disappearance of Capitol Hill intern Chandra Levy, teacher-killer teen Nathaniel Brazil, and Marc Rich, the subject of the Clinton pardon scandal.
He’s written a book, Black’s Law, available on Amazon.com about some of his lesser known cases. The title is a takeoff on the legal reference book. The book was an opportunity to educate people on the reality of the legal process and express his views, Black says.
He is mindful that celebrity can work against him in his law practice. “People think people who are well-known are arrogant and self-serving.”
To that end, he has tried to keep his celebrity in check. He’s turned down interviews for Playboy profiles twice. “Mainly, my wife didn’t want me to appear anywhere near naked women,” he says. There was also the time during the O.J. Simpson murder trial madness when The National Enquirer asked him to supervise a polygraph test of Simpson. He said no to that, too.
Black has been in practice in Miami for more than 31 years, starting out as a county public defender after earning the highest score on the Florida Bar exam. He was well-known in the legal community before he came to the attention of the national media.
“Most of the judges know I act as a lawyer, not as being on Hollywood Squares. Whenever I do something, I do it seriously,” Black says.