Rakofsky 2.0: Code-Name "Maverick"

By sheer serendipity, this post could count as a follow-up on my post from the other day: “Gots Me An Edumacation.”

A little over two years ago, I finally blogged about Joseph Rakofsky, of the infamous “Rakofsky v. Internet” fame.

In an ironic way, Rakofsky’s fame both began and essentially ended with the Internet. It apparently started with a website containing such puffery as to invite derision and accusations of deceitfulness from more seasoned attorneys. It got a major boost — though not in a good way at all — with the aforementioned Rakofsky v. Internet series of posts. And it ended god only knows where. The last bit of news I can find about Rakofsky concerns the dismissal of his lawsuit “against the Internet.” After that, I got nothin’. I can’t even tell if he’s still practicing law, since every search variation I’ve attempted turns up nothing but his ignominy.

So, with Rakofsky apparently fading into the mists of time and the Internet, it seems that someone is about to step into the position of Rakofsky 2.0. And his altogether-inappropriate code name real name is “Maverick.”

How can one be considered a “Maverick” when what he’s doing has already been done? And with, as I noted, such ignominy? I mean, can Maverick really top Joseph Rakofsky? Yes, he can.

A recent post by Mark Bennett over at Defending People shows why:

If you could go back in time to before the trial started—when Rakof­sky just knew he was going to win—and say some­thing to young Joseph Rakof­sky, what would it be? Would you tell him some­thing to help pro­tect his client? To help him save his own rep­u­ta­tion and career?

Here’s your chance.

The response has been whelming. So far, there are 17 comments — at last count — to the post, including one from a prosecutor, in addition to the defense attorneys who chimed in. Others have also written about the situation, although not all of these are in response to Mark’s call for advice to the Maverick.

• Grits for Breakfast, “On the phenomenology of Maverick Ray and the worthlessness of Texas capital qualifications”
• Between a Laugh and a Tear, “An Open Letter to Mr. Maverick Ray”
• Gideon, “TX man thinks he’s better than the TN public defender system”
• Above the Law, Keith Lee, “Growing Pains: The Necessity of Fear”

There will, no doubt, be more forthcoming.

Maverick’s trajectory, sadly, appears to be taking the same starting point as that of Joseph Rakofsky. There’s the puffery of his website, as well as his response to Mark W. Bennett calling him on it. And there is the taking of a murder case — a death-penalty-eligible case — which he is woefully inexperienced to handle. He even has the judge’s warning, in an gentle, if not subtle, attempt to dissuade him from trying to handle the case.

So far, Maverick does not appear to be listening.

In my article the other day, I briefly mentioned a few of my experiences as a Certified Law Student under the supervision of a local criminal law specialist. Among these experiences, I had the opportunity to fully participate in several “special circumstances” trials.

“Special circumstances” trials are murder trials where the circumstances of the murder are such as to expose the defendant to the possibility of a death sentence. The criminal law specialist who supervised me served — and still does serve — on our county’s “special circumstances panel,” so we had several such trials while I worked with him. He referred to me as “second chair,” although I don’t think I had quite the level of responsibility of a true second chair in such a trial: while I had the opportunity to do quite a lot in these trials, someone else — the criminal law specialist with decades of experience — essentially decided what I was to do, and when.

I assisted in brainstorming, planning, legal research, investigation, motions-writing, arguing in limine motions (and some mid-trial motions I wrote), questioning witnesses, sitting in on client meetings, jury selection, conducting 402 hearings (which consisted of questioning the witness outside the presence of the jury, and then arguing admissibility issues), cross-examining law enforcement officers in front of the jury, putting together Powerpoint presentations for closing arguments (for one of which I also had developed the theme myself), and, after trial, participating in “debriefing” of the jury.

At least partly because of these experiences, I began regularly attending the joint CACJ/CPDA Capital Defense Seminars, starting in about 2003, or 2004. (I already have my hotel reservations for 2014’s seminar.) Since I started going, I think I’ve missed one, meaning by now I’ve had at many weeks, over several years, of additional training specific to handling death penalty cases.

Also because of these experiences — and because I was already (erroneously) considered an “expert” on gang defense — the criminal law specialist asked me to come to a preliminary hearing on another special circumstances case while I was awaiting my swearing-in ceremony in early 2007. As he was questioning the gang cop — referred to (also erroneously) as an “expert” by the prosecutor — he had asked me to send him any notes, questions, suggestions during the hearing. (Since I was then awaiting my swearing-in, I was not officially participating in that particular hearing.)

I won’t bore you with the details, but because the primary questioner of the gang cop was the criminal law specialist, with the other attorneys largely piggybacking off his work, the result of this was that one of the co-defendants got it into his head that I was the “shot-caller.” He therefore instructed his family to “go hire the ‘shot-caller.'” They spoke to the criminal law specialist, and he gave them my contact information, allegedly telling them that I would be sworn in “any day now” and that I was a very good choice for an attorney to defend their family member.

In a special circumstances case.

For my first case as a brand-spanking-new baby lawyer.

When the family contacted me, I very politely declined the case, stating that I did not have nearly enough experience. Then I went to the criminal law specialist and asked him if he was off his rocker.

A few days later, another experienced attorney came to my office — by then I had been sworn in — and said, “What’s this I hear you turned down a murder case?” I filled him in, although he apparently already knew all about it, and told him I thought the idea of my taking such a case was “insane.” His response was to point to the special circumstances cases I had already assisted on, and to point out the (allegedly) “stellar” work I’d done. (The criminal law specialist had already said the same thing.)

I reiterated that the very idea of my taking such a case was insane, noted that whatever I’d done on those other cases had been assigned to me, whereas if I took a case myself, I would have to figure out what needed to be done, and stated that my inexperience virtually guaranteed the client would receive ineffective assistance of counsel (IAC) if I took the case.

Several other attorneys who knew me, and had paid me to do legal research and writing for them and/or seen me work, also tried to encourage me to take the case. But I was convinced (and I think case law in California supports this) that it would be automatic IAC if I did, and lost.

Now, in the end, I did take the case — but not as the primary attorney. The second attorney who had tried to convince me to take it ended up taking the case, after asking me if I would work the case with him. He was first chair; I was second. As he put it, “you’ll end up doing a lot of work, and I’ll make sure nothing is missed.” He had 35 years of experience, including experience as a prosecutor and defense attorney, and had some experience handling death penalty cases.

We didn’t lose. After the first month, the District Attorney’s Office informed us that they would not seek death. Approximately 9, or maybe 10, months later — I always remember it as 9 because of the “baby lawyer” association — I managed to broker a plea agreement that resulted in a determinate sentence of approximately 26 years for our client. ^[1]I should note that we went into the case with a confession of involvement by our client, who had also already taken law enforcement to a field where significant evidence was found.

Despite the history I’ve just related to you — and if you’re reading this, Maverick Ray, I hope you’ve been paying close attention — I came out of that case convinced of one thing above all else: it will be some years before I ever consider taking a death case as lead counsel. When, or if, that happens, I hope very much not to be taking that case alone. I also hope that before that day arrives, I will have at least several more — if not at least a half-dozen more — such cases under my belt as second chair. 

Experience-wise, knowledge-wise, I just don’t think you’re ready without that.

But beyond the experience, beyond the knowledge, there’s the emotional component to consider. Unless there’s something psychologically wrong with  you — such as sociopathy, or psychopathy, in which case you should not be a defense attorney — handling cases where someone’s liberty is going to be taken away even for maybe five or ten years is difficult enough emotionally. I’ve had several in the last year where my clients were facing life sentences. You don’t get a lot of sleep — well, I don’t get a lot of sleep — while handling such cases. Even when you are otherwise — “objectively,” at least — competent to handle them.

And you, Maverick Ray, are going to handle this potential death penalty case?

You’re insane.

More than once, I’ve quoted Vincent Hallinan (1896-1992), who said,

Lawyers make a good liv­ing off the mis­ery of others.…

We must be ever vig­i­lant that we do not increase that misery. Taking on this case, you cannot help but increase the misery for all involved. You simply do not have the experience. Your act of taking the case clearly demonstrates that you do not have the knowledge. It is a mistake.

And you will top Joseph Rakofsky.

Why?

Because unlike Joseph Rakofsky, who “the Internet” did not learn about until after it was too late, “the Internet” is trying to help you. We’re trying to warn you before you do what you are apparently otherwise about to do.

You want to be a Maverick? Show that you don’t have to repeat the mistakes of others. Show that you can learn from others, instead. To paraphrase Mark W. Bennett:

Don’t be the lesson. Be the student.

Because the choice is yours: you can be a Maverick, or you can go down in history as Rakofsky 2.0.