Acclaimed Attorney Investigates Dangers of a Justice System With No Juries in ‘The Vanishing Trial’

Robert Katzberg

 

 

Former Assistant United States Attorney for the Eastern District of New York Robert Katzberg – who has been cited in The International Who’s Who of Business Defense Lawyers, Best Lawyers in America, Best Lawyers in New York (New York Magazine) and Super Lawyers and whose presentation of evidence The Wall Street Journal called “the highlight” of a high-profile case – in The Vanishing Trial: The Era of Courtroom Performances & the Perils of its Passing (Mascot Books, July 2020) – explores why trials have become such rarities in today’s federal courtrooms and the dangerous consequences of a justice system without juries. 
 

This is an excerpt from the book (printed with permission).

 

As a young federal prosecutor in the 1970s, I was in the courtroom on a regular and repeated basis, trying bank robberies, tax frauds, narcotics cases, and other crimes enumerated in the United States Code. My client was the United States of America.

 

As an Assistant United States Attorney, I prepared my cases with agents from the FBI, IRS, and other law enforcement professionals who used their training, experience, and investigatory skills to help make my cases as airtight and compelling as possible.

 

Backed by these resources, and most often, all the time that was necessary to be as detailed and compulsive as most anyone you will meet, I would not recommend indictment of a case that had not been thoroughly, even exhaustively, investigated and prepared.

 

While most of those prosecutions were far simpler affairs than today’s, the resulting trials nonetheless afforded me the opportunity to “do it all,” from prepping witnesses, selecting a jury, making an opening statement, conducting direct and cross-examinations, right through to delivering a closing argument, and to do it over and over again.

 

Each day on trial increased my courtroom comfort. The more cases I tried, the more my trial techniques improved. The greater the variety of crimes I prosecuted, the nimbler and more nuanced my presentations became. The more skilled the defense lawyers opposing me were, the more battle-tested I emerged.

 

My first trial was in early 1973. It was a near disaster. The presiding judge was the renowned Jack B. Weinstein, a jurist revered for his legal genius, personal integrity, and strong independence. A tall, regal man, Judge Weinstein was a Columbia Law School professor as well. His treatise, “Weinstein’s Federal Evidence,” had long been a nationwide standard on the Federal Rules of Evidence. Legend had it that had Robert Kennedy lived to become President, Jack Weinstein would have been on the short list for a seat on the Supreme Court.

 

While it was certainly an honor to have my first trial before Jack B. Weinstein, from a practical point of view, he was a bad draw. Judge Weinstein, who announced his retirement at age 98, expected all lawyers appearing before him to be as prepared, savvy, and well-versed in the law and rules of evidence as he.

 

This is, of course, a daunting, if not impossible task, especially for newly minted lawyers. Although personally gracious and always appropriate, he does not suffer fools easily and affords government lawyers no extra consideration. I was scared to death.

 

 

In the early 1970s, the United States Attorney’s Office for the Eastern District of New York did not yet have a special unit devoted to teaching young prosecutors how to try cases. Instead, from a small subset of cases more appropriate to the state courts, it gave new prosecutors a simple, insignificant case that seemingly could not be lost, and let neophytes pretty much fend for themselves. This was hardly the best way to train young prosecutors, and in subsequent years, the office created a special unit for new prosecutors to learn  their craft.

 

At the time of my first trial, however, “sink or swim” was the reality, and I accepted it unquestioningly. Accordingly, I was assigned a veritable “slam dunk” case involving an undercover drug “buy and bust” with two defendants, the brothers Calvin and Reginald Smith. All I had to do was call the undercover narcotics agent, have him testify to his dealings with the defendants at their meeting in a JFK Airport hotel, introduce into evidence the drugs the defendants had given him, and then call a government chemist to testify that the drugs seized were indeed illegal narcotic substances. Really easy, right? Not for me.

 

Although I had watched a number of federal criminal trials the previous year as a law clerk in the District Court in Washington, D.C., and had prepared my two trial witnesses as extensively as I then knew how, I nearly blew it.

 

My first witness was the narcotics agent, Vincent Furtado, who, in an undercover capacity met with the Smith brothers, negotiated the transaction, took the drugs, and made the arrest. Believing that the jury should hear how Agent Furtado first came to meet the brothers and their dealings before the JFK “buy and bust,” I began his direct examination focusing on that history. Although today such background is part of the accepted evidentiary framework, not so then.

 

Objections by the defense lawyers to each background question were sustained by Judge Weinstein. Not realizing the basis of the problem, I tried to rephrase the questions. Additional objections were made and sustained.

 

It was a really bad start. It revealed me to be every bit the neophyte that I was. I felt a level of insecurity never before experienced. Finally, I asked to “approach the bench,” a basic tactic in which the lawyers for both sides go up to the judge’s elevated desk and have a private conversation outside of the jury’s hearing, in an effort to iron out any problems.

 

Unaware that Judge Weinstein, unlike most all federal trial judges, rarely allowed such bench conferences, I was devastated when my request to approach was flatly denied. A frustrated Judge Weinstein declared a recess. Once the jury was out of the courtroom, he looked down at me sternly and said something along these lines. “Young man [I was 26], I am going to give you 20 minutes to go back to your office and figure out how to properly proceed. If this line of questioning continues on your return, I will consider granting the defendants a mistrial, and I assume you know what that means.” I surely did. If the court declares a mistrial based on what the government has done (or has failed to do), then Double Jeopardy could bar any retrial and the defendants would be off the hook.

 

 

It was hard to imagine a worse outcome. Not only was I in danger of losing my first trial, one that was assigned to me because it could not be lost, but the loss would clearly be blamed (and appropriately so) on my incompetence, rather than some aberrant jury verdict. Two drug dealers would walk the streets as free men and I would be infamous among my new colleagues.

 

I gathered up my documents and started to walk toward the low, swinging wooden doors that separated the well of the courtroom from the public gallery, wishing that I had taken my mother’s advice and gone to dental school. But, as bad as it was, I had not yet hit bottom.

 

Just as I approached the wooden doors, one of the defendants came up from behind to open them for me. As he leaned over, he whispered in my ear, “Sheet, I’m lucky I got you!”

 

Having thus hit bottom, and in near panic mode, I used the time-out to speak with a more seasoned colleague who I hoped would take pity on me. He quickly pointed out my mistake and explained how it should be corrected.

 

The testimony of Agent Furtado was completed without further difficulty and we recessed for the day. I lingered in the courtroom after all others left and went up to Ralph Sacco, Judge Weinstein’s longtime, trusted courtroom deputy. A courtroom deputy runs the judge’s calendar and takes care of certain of the court’s administrative matters. Knowing how key that relationship can be from my days as a law clerk in Washington, I hoped to get some sympathy from Judge Weinstein via Ralph.

 

I said, “Please tell Judge Weinstein that this is my first trial.”             

 

Ralph laughed out loud and said, “Don’t worry, he knows.”               

 

The defendants were convicted two days later and disaster was avoided. It was an inauspicious start, but the learning process had begun, however painfully.

 

 

Compare the role of the judge in my second trial, the Hon. George Rosling, who prosecutors in the U.S. Attorney’s Office referred to as “Uncle George.” While smart, efficient, and always prepared, he would sometimes go out of his way to help the government. He did this to the degree that in one infamous case, United States v. Nazarro, a conviction was overturned on appeal because of his undue interference on behalf of prosecutors.

 

Throughout my trial, Judge Rosling would call counsel to the bench for a sidebar conference to, in effect, help direct my presentation. While his insights were almost always on the money, and I was grateful for the help, I knew even then, it was beyond his proper role.

 

My favorite Rosling trial story comes from another prosecutor, my future law partner, Ken Kaplan. In one of his trials before Judge Rosling, the direct and cross-examination of his key witness had just been completed. The direct had gone smoothly and there was little harm done on cross. However, when Judge Rosling asked if Ken had any questions on “redirect” (the opportunity given to the lawyer who called the witness to ask questions after, and based upon, what was brought out on cross-examination), he decided to clear up a minor ambiguity that arose during the cross. This was a potentially unwise decision, as there was nothing of any significance at stake, and all Ken was doing was giving his opponent, an experienced trial lawyer, a chance to do real damage on “re-cross.”

 

He rose to announce that he had a brief redirect. Judge Rosling told the lawyers for both sides to approach the bench. As the court reporter took down every word, Judge Rosling asked Ken if he knew the two cardinal rules of witness examination. He, of course, said “No.”

 

Judge Rosling then said, “The first rule is never cross-examine a widow in a wrongful death case. The second rule is, do not redirect this witness.”

 

That abruptly ended the bench conference and the lawyers went back to their respective tables.

 

“Any redirect of this witness, Mr. Kaplan?”

 

“No, Your Honor.”

 

 

 

There was nothing defense counsel dared do or say. This was the reality of Rosling’s courtroom.

 

My career as a federal prosecutor involved only a handful of appeals, none of them noteworthy, although my first appearance in the Second Circuit Court of Appeals, like my first trial, vividly remains with me.

 

Having convicted the Smith brothers in the trial before Judge Weinstein, I was tasked to handle the appeal. In those days, the Eastern District’s Chief Appeals Section lawyer, L. Kevin Sheridan, decided pretty much on an individual basis who would handle any specific appeal. It largely depended on whether and to what extent a particular matter was important or complex enough to require his appellate staff to participate in whole or in part. Given the run-of-the-mill nature of the case itself, and the rudimentary legal points raised on behalf of the Smith brothers, once my draft opposition brief was approved by the appeals section, I was allowed to argue the appeal on my own.

 

Arguing my first appeal in the United States Court of Appeals for the Second Circuit was a big deal. Notwithstanding the basic and straightforward nature of the legal issues involved, I steeped myself in the applicable cases and prepared my oral presentation as thoroughly as I knew how. For days leading up to the argument, standing in front of a full-length mirror at home, I rehearsed what I intended to say and how I was going to say it. I even invited my parents to attend; they were up for the big moment almost as much as I was.

 

As it happened, on the day of oral argument, the Second Circuit Court of Appeals was also hearing an emergency stay of a hostile takeover bid by a giant conglomerate, a legal battle that had made the front pages of the newspapers.

 

When I got to the stately 17th floor Second Circuit courtroom, it was already packed with the lawyers from the four or five major law firms involved in the litigation, along with members of the media. My parents squeezed into two seats in the very last row of the cavernous courtroom.

 

The oral argument on the stay took up most of the morning. When it was over, the courtroom emptied. There were just two more matters to be heard that morning, both criminal appeals. Mine was last. By the time my case was called, the courtroom’s huge public gallery was empty of all but my parents, who remained seated in the very last row. It was now nearly one o’clock.

 

 

As appellants, that is, the parties who filed the appeal, my opponents went first. When they concluded their argument and answered the one question asked by a member of the panel, I rose to reply. Before I could even get out the standard introductory words, “May it please the court,” Judge Edward Lumbard looked down at me, waved his hand and said, “We do not have to hear from the government. The judgment is affirmed.”

 

I had won without having to utter a word. My initial reaction was to call out, “But my mother is here!” Fortunately, I was able to suppress that instinct as I watched the members of the panel quickly leave the bench, no doubt hastening to a belated lunch.

 

“So, how was I?” I asked my parents when I finally reached the last row seats they had occupied for over four hours. “Wasn’t my posture really good?” We walked to a favorite restaurant in nearby Chinatown and had our own late lunch.

 

This is an excerpt from Robert Katzberg’s new book, The Vanishing Trial: The Era of Courtroom Performances & the Perils of its Passing (Mascot Books, July 2020). Printed with permission.

 

Author Bio:

 

Robert Katzberg, a cum laude graduate of George Washington University Law School and a member of its Law Review, began his career as a law clerk to the Honorable Oliver Gasch on the United States District Court for the District of Columbia. He then served as an Assistant United States Attorney for the Eastern District of New York, where his prosecution of political corruption and financial crimes earned him the coveted Attorney General’s Special Achievement Award. For the next four decades, as a partner in Kaplan & Katzberg, a white-collar criminal law firm, he defended clients in high-profile cases in New York City and throughout the country. A Southern District of New York federal prosecutor described him as “the best cross-examiner” he had ever seen, and as a “formidable adversary” who “commands the courtroom.” Katzberg is now consulting counsel to Holland & Knight, an international law firm.

 

Highbrow Magazine

 

Image Sources:

--Courtesy of the author

--From the film, 12 Angry Men (United Artists)

--Pxhere (Creative Commons)

--Pxfuel (Creative Commons)

--thebluediamondgallery.com (Creative Commons)

--PublicDomainVectors (Creative Commons)

                                            

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