New Year’s Day: Reflection, Not Resolution

1930 was not looking so good, either.

Reflection without discipline can be self-indulgent, especially as the year draws to a close and a new one opens before us. So, let us impose discipline; avoid white-collar crime (there will be plenty in 2018); and focus on music, booze and books.

First, music is especially appropriate at this season, whether for reflection or not.  Here is the Miles Black Quintet, Jazz For The New Year:

As jazz critic for the Wall Street Journal (and JazzWax blogger) Marc Myers notes:

Sixty-three years ago, on New Year’s Day in 1955, pianist Teddy Wilson, bassist Milt Hinton and drummer Jo Jones went into a studio for Norgran Records and recorded The Creative Teddy Wilson, a 12-inch album.

When Norman Granz founded Verve a year later for Ella Fitzgerald, the Wilson tracks were soon reissued on the label with a new title—Teddy Wilson: For Quiet Lovers.

Read the entire post here, and listen below:

Benjamin Britten (1913-1976)

Then move to Benjamin Britten’s “A New Year Carol,” here performed by Anonymous 4:

If the end of the year looms like the end of time, try 1000: A Mass For The End of Time, also by Anonymous 4:

Next, unless you have impulsively sworn off the hooch, what to drink?

Scrooge serving a little smoking bishop (illustration by John Leech for the 1843 edition of ‘A Christmas Carol’).

Hot cocktails are always fraught; many of us do not do them well.  With arctic temperatures across the country, however, this piece on Cold Weather, Hot Cocktails from the New York Times is especially welcome.  The Rock and Rye Toddy and the Port Toddy  seem especially promising.

Generally, I am not a fan of tequila, but this Winter Citrus Tequila Highball  (from Emily Arden Wells at  Gastronomista) is worth a try.

Must be a crime novel in here somewhere. (image by Dr. Marcus Gossler)

Third, what to read?

Our last post had some suggested 2017 crime fiction.  Here, from The Rap Sheet, are some more lists collected and discussed by J. Kingston Pierce.

And, from The Rap Sheet’s channel on YouTube, the original trailer from “The Wild, Wild West,” which debuted on television in 1965, about a couple of Secret Service agents in the mid-1860s.  They had a train.  I loved it, especially all the technology:


Christmas: Cocktails and Crime, Choirs and Cool

No coal lumps here.

A few notes, as Christmas is upon us.

First, what to drink?

I don’t care for Bloody Marys; they’re too acid.  The best Christmas drinks for morning or lunch are milk punch and the French 75.

Here is a Garden & Gun article about (and recipe for) milk punch:

Holiday Milk Punch

And, just this past Thanksgiving, I shared notes about the French 75:

Thanksgiving Cocktails, Truman Capote, Puritan Poetry

Second, what to read?

Bells about to jingle.

This blog dwells on crime fiction, so consider these “best of 2017” lists from the New York Times —

— and from The Guardian, the Wall Street Journal, and The Rap Sheet.

Third, what to listen to?

I first read about jazz pianist David Ian at Wall Street Journal jazz critic Marc Myers’s Jazz Wax.  It’s wonderful Christmas jazz: soulful but clean, quiet but not boring.

Here is Ian’s take on “Good King Wenceslas”:

Crown was on sale Cyber Monday.

From the British Library, here is a fascinating post on Christmas coronations:

Throughout the Middle Ages, Christmas was a season of festivities and celebrations, just as it is today. 25 December was certainly a high point of this festive season, beginning the twelve days of Christmas which would last until Epiphany. On three occasions in the early medieval period, the Christmas Day celebrations may have been more extravagant than usual: on Christmas Day in 800, 855 and 1066, merrymakers also celebrated the coronations of the very first Holy Roman Emperor and two English kings with interesting legacies.

Read the entire post here.

Fourth, what to believe?

Few things match the choir of King’s College, Cambridge and the Festival of Nine Lessons and Carols:

A Festival of Nine Lessons and Carols is the Christmas Eve service held in King’s College Chapel. The Festival was introduced in 1918 to bring a more imaginative approach to worship. It was first broadcast in 1928 and is now broadcast to millions of people around the world.

The service includes carols and readings from the Bible. The opening carol is always ‘Once in Royal David’s City’, and there is always a new, specially commissioned carol. It is distinct from Carols from King’s, which is a carol service pre-recorded for BBC television, also broadcast on Christmas Eve.

Get the details here, and then listen below:

And what to make of Christmas Day itself?  I have considered it:

Advent Bible in a Year Blog: A Marshmallow World

Even if you don’t read my Advent post above, you need to watch a sharp-dressed Dean Martin and Frank Sinatra work through a classic of Christmas cool, it’s a “Marshmallow World”:

Merry Christmas.

 

 


Special Counsel Subpoenas, FBI Agent Texts, GoGo Penguin Groove

An unusual point arose here (at the end) regarding an FBI agent’s political text-messages and cross-examination:

Jack Sharman – MSNBC – Meet the Press (Dec. 5, 2017) from LFW on Vimeo.

Text Messages and FBI Agents

The interview question focused on an agent in the Special Counsel’s office, Peter Strzok, and the fact that he was taken off the the investigation because of alleged anti-Trump, pro-Clinton text messages or other communications.  Congress has requested information from the Department of Justice about Agent Strzok, who was also apparently one of the agents who interviewed Hillary Clinton regarding the matter of her personal email server and who allegedly watered-down the FBI’s conclusions about her.

What the heck, indeed.

On a more practical note, what about FBI agents’ text messages (or emails or posts) and their use at trial?

A leading case is United States v. Suarez, A2010 WL 4226524 (D.N.J. Oct. 21, 2010).  In Suarez, the FBI agents received no instructions to preserve text messages, resulting in an adverse inference instruction at trial. Unfortunately for white-collar defendants, Suarez, while soundly reasoned, has not gained broad traction.

A problem is finding a broad source of authority for discovery of electronic material in criminal cases (as opposed to civil).  Although the Federal Rules of Criminal Procedure do not specifically address electronically-stored information, the Federal Rules of Civil Procedure do so extensively and have done so since their amendment in December of 2005.  As early as 2008, now-retired Judge John Facciola, a jurist often quoted and relied upon across the country on ESI issues, found that “[i]t is foolish to disregard [the Federal Rules of Civil Procedure] merely because this is a criminal case, particularly where, as here, it is far better to use these rules than to reinvent the wheel when the production of documents in criminal and civil cases raises the same problems.”  United States v. O’Keefe, 537 F.Supp. 2d 14, 19 (D.D.C. 2008).

The Department of Justice, not surprisingly, disagrees.

Were a person indicted by the Special Counsel to go to trial, he or she would be most interested in the content and timing of Agent Strzok’s text messages.  At a minimum, if the agent were to testify, the texts would be so-called “Jencks material” (that is, statements of a Government witness).

Perhaps more importantly, the texts might be “Giglio material” (that is, information going to the credibility of or otherwise supporting the impeachment of a Government witness).

With regard to the FBI otherwise, we have discussed issues arising from agents’ note-taking policies:

Handwriting On The Wall (And In The FBI’s Notes)

 

GoGo Penguin

We are in Advent, approaching Christmas.  This piece from the UK trio GoGo Penguin, while not a “Christmas” work, put me in mind of winter:

Here is Jim Fusilli’s WSJ  article on the band.

 

 

 

 

 

 

 

 


The Special Counsel and Obstruction of Justice

Here, a few thoughts on the Special Counsel, the President and obstruction of justice:

Jack Sharman – MSNBC – The 11th Hour with Brian Williams (Dec. 4, 2017) from LFW on Vimeo.

Grand jury slugfest.

Getting too comfy?

For earlier discussions about obstruction charges (and avoiding them), see the notes below that manage to combine Mr. Rogers and Barry Bonds.

For Corporate Counsel || Stalking Horses, Pitchfork Crowds, Narrow Neckties, Mr. Rogers’s Slippers and Indicted Employees: 6 Steps To Dodge Being Deweyed

and

Barry Bonds, Ramblin’ Man

.

 


Dante’s Guide: Preparing the Grand Jury Witness

Dante Alighieri
(c. 1265–c. 1321)

Finally, one gets to quote Dante while talking about grand jury witnesses:

In the year 1300, at age 35, the narrator of Dante’s Inferno famously finds himself in trouble:

Midway in our life’s journey, I went astray

from the straight road and woke to find myself

alone in a dark wood.  How shall I say

what wood that was!  I never saw so drear,

so rank, so arduous a wilderness!

Its very memory gives a shape to fear.

The grand jury witness finds himself or herself in a position not unlike that of the Italian poet at the beginning of his trek through the Divine Comedy.  The federal grand jury is one of the most powerful, secret and peculiar institutions in American law and culture.  It is certainly the most one-sided and the one that most lay persons find runs counter to their civics-class understanding of American governance.

In the poem, Dante has a guide through hell:  the Roman poet Virgil.  When Dante asks to be saved from the first of three beasts with which he is confronted, Virgil does not spare Dante’s sensibilities:

And he replied, seeing my soul in tears

“He must go by another way who would escape

this wilderness, for that mad beast that fleers

before you there, suffers no man to pass.

She tracks down all, kills all, and knows no glut,

but, feeding, she grows hungrier than she was.”

As lawyers for grand jury witnesses, we must do as Virgil does, and first off remind our client that, like the She-Wolf, the grand jury “tracks down all, kills all, and knows no glut.”

Plus, “fleers” is a great word.

Nice chair. Hot seat.

All this from a chapter I wrote — Dante’s Guide: Preparing the Grand Jury Witness — in a book just published by the ABA.

From the ABA Bookstore blurb:

The witness is the star of any trial. All other evidence—exhibits, demonstrative evidence, the facts—come to life through the witness. In every successful trial there was at least one witness who told a story, held the jury’s attention, withstood cross-examination, and helped win a verdict. In every loss there is usually a witness who crashes and burns. How do you explain the difference?

Preparation.

For all but the experienced expert witness, testifying is an alien experience and the courtroom is a strange and forbidding place. The witness needs help, and it’s the lawyer’s job to provide it. The authors of this book have prepared, examined, and cross-examined thousands of witnesses over the course of their successful careers as trial lawyers. They have seen first-hand what works and what does not—on the witness stand and in pre-trial preparation and practice sessions. Their hard-won lessons, lessons learned in the trenches of trial practice, are contained here.

This is the second in a series of books published by the ABA under the title “From the Trenches.” This second volume, “Mastering the Art of Witness Preparation,” contains 12 chapters covering all aspects of witness preparation. Whether you are a first-time, second-chair associate or a veteran first-chair partner preparing for your 100th jury trial, this book will provide guidance, thoughtful insights, and unique perspectives on preparing your witness to testify.

Here’s where you can get the book: Mastering the Art of Preparing Witnesses

(The book has some outstanding trial lawyers as contributors, including Jim MillerMike O’Donnell, Scott O’Connell, Jessie Zeigler,  Sawnie McEntire, and Jerry Glas.)

We have addressed grand jury matters before here

Representing Witnesses Before The Grand Jury

and here

Of Grand Juries and Ham Sandwiches

Anatomy of a Murder (1959)

It’s not grand jury witness prep, but here’s the first few minutes of Anatomy of A Murder:

Plus, Duke Ellington did the score:

 

 


Thanksgiving Cocktails, Truman Capote, Puritan Poetry

A few notes for your Thanksgiving: a holiday examination, Mumm champagne, an old-fashioned cocktail from Garden & Gun, the French 75 (its history and variants), Puritan poetry (no Puritans = no Thanksgiving), Truman Capote and Loudon Wainwright III.

Steady, now.

First, while still sober, take this test from Liquor.com:

What Kind of Thanksgiving Cocktail Are You?

Keeping mum?

From the formidable Emily Arden Wells  at Gastronomista, a Cocktail Friendsgiving with G.H. Mumm Champagne.

 

Although I usually repair to gin drinks, this recipe for an old-fashioned from Garden & Gun is the real thing:

Classic Cocktail: The Old-Fashioned

Boom.

If, like me, you do not care for Bloody Marys, a French 75 — essentially, a cocktail made with gin (or sometimes cognac), simple syrup, fresh lemon juice and champagne — is a sharp eye-opener before the Thanksgiving meal. The Letters and Liquor blog has a detailed, historical article on the French 75:

The novelist Alec Waugh dubbed it “the most powerful cocktail in the world” and he was only half referring to its potent combination of liquor and champagne. With a refined visage that belies the origins of its name, the French 75 speaks to our post-war mentality.

Read the entire post here.

Tiny bubbles.

From bartender-expert Gaz Regan’s site, a twist on the French 75:

Cocktails in the Country: Guy’s 75 by Neil Goldberg, Mad River Distillers Tasting Room, Burlington, VT

Anne Bradstreet

Thanksgiving brings to mind the unfairly-maligned Puritans.  A favorite Puritan is poet Anne Bradstreet (1612-1672) and her “The Author to Her Book”:

Thou ill-form’d offspring of my feeble brain,
Who after birth didst by my side remain,
Till snatched from thence by friends, less wise than true,
Who thee abroad, expos’d to publick view,
Made thee in raggs, halting to th’ press to trudge,
Where errors were not lessened (all may judg).
At thy return my blushing was not small,
My rambling brat (in print) should mother call,
I cast thee by as one unfit for light,
Thy Visage was so irksome in my sight;
Yet being mine own, at length affection would
Thy blemishes amend, if so I could:
I wash’d thy face, but more defects I saw,
And rubbing off a spot, still made a flaw.
I stretched thy joynts to make thee even feet,
Yet still thou run’st more hobling then is meet;
In better dress to trim thee was my mind,
But nought save home-spun Cloth, i’ th’ house I find.
In this array ’mongst Vulgars mayst thou roam.
In Criticks hands, beware thou dost not come;
And take thy way where yet thou art not known,
If for thy Father askt, say, thou hadst none:
And for thy Mother, she alas is poor,
Which caus’d her thus to send thee out of door.

Here is the full link.

Thanksgiving and cold blood.

For reasons I cannot quite place, Truman Capote’s work has never been at the top of my list, though I should probably revisit it.  Although I prefer A Christmas Memory, his sequel long story The Thanksgiving Visitor  is holiday appropriate.  From the Amazon summary:

Buddy and his closest friend, his eccentric, elderly cousin, Miss Sook – the memorable characters from Capote’s A Christmas Memory–love preparing their old country house for Thanksgiving. But there’s trouble in the air. Odd Henderson, a scrawny, freckled, red-headed bully makes Buddy the target of his relentless torment. But Miss Sook only counsels patience and understanding, “He can’t help acting ugly; he doesn’t know any different,” she says. Filled with emotions that are universal to both young readers and adults, this poignant story brings to life what we all should cherish and be thankful for–the gifts of friendship and love.

Finally, from Loudon Wainwright III, “Thanksgiving”:

Happy Thanksgiving.


Whitewater and Russian Rapids

On “The 11th Hour with Brian Williams” to discuss the Mueller indictments:

Jack Sharman – MSNBC – The 11th Hour with Brian Williams (Oct. 31, 2017) from LFW on Vimeo.

We have discussed the Special Counsel’s case before: Search Warrants and Russia Raids.

Congress will likely take a turn here.  We have reviewed the role of Congressional investigations and special counsel investigations:


Congressional Investigations, Criminal Cases and The Knights Who Say “Ni!”

Time flies.

Lessons From An Ex-Congressional Lawyer  

Strong hair.

Where Did You Go, Batman? Martin Shkreli, Congress, the Fifth Amendment and You

 


Title IX: Fair Campus, Foul Weather

Or, maybe not.

With Education Secretary Betsey Devos much in the news  over possible changes to the Dear Colleague letter promulgated by the DOE’s Office of Civil Rights, this note by me and my Lightfoot colleagues  Brandon Essig and Clint Speegle in University Business is timely:

High-profile lawsuits, OCR investigations and new congressional legislative interest have all conspired to mean that colleges and universities ignore the Dear Colleague situation to their peril. Unlike the disciplinary process for a cheating scandal, the resolution of a sexual assault case is a classic “parallel-proceedings” scenario.

At any moment there may be an administrative proceeding (by the university), as well as a criminal investigation (by external law enforcement) and potential civil lawsuits by either the accuser or the respondent. In the university disciplinary context, parallel proceedings raise at least two often troubling—and sometimes disastrous—special issues.

Read the full article here.

More articles by Sharman. Thank goodness.

We have written extensively before about Title IX here.  It’s a topic not likely to go away soon.


Lauren Bacall and The Big Sleep: Film Noir Cool, White Collar Crime, Cocktail Cold

Lauren Bacall

Lauren Bacall

To the extent that it reflected crime, Lauren Bacall’s work was noir, not white-collar; black, not white; guns, not accounting fraud.  Yet, there was an elegance and a fierceness about her films – especially those with Humphrey Bogart – that are familiar to those who work in a white-collar crime landscape.

David Brooks, writing in the New York Times, reflects on The Bacall Standard.  In particular:

[Raymond] Chandler was not particularly kind to women, though. It was up to the director Howard Hawks and his star, Lauren Bacall — who died this week — to give that era a counterpart female ideal, a hero both tough and tender, urbane and fast-talking, but also vulnerable and amusing.

Vivian Rutledge, the lead female character in the movie version of Chandler’s “The Big Sleep,” is stuck in a classic film noir world. Every situation is confusing, shadowed and ambiguous. Every person is dappled with virtue and vice. Society rewards the wrong things, so the ruthless often get rich while the innocent get it in the neck.

The lead character, played by Bacall, emerges from an ambiguous past, but rises aristocratically above it. She has her foibles; she’s manipulative and spoiled. But she’s strong. She seems physically towering, with broad shoulders and a rich, mature voice that is astounding, given that Bacall was all of 20 years old when she made the picture.

We’ve written about Chandler before: Browning (The Poet, Not The Automatic).  Speaking of Chandler’s dialogue in The Big Sleep (both the book and the film), Brooks notes:

The heiress greets Marlowe with a put-down: “So you’re a private detective. I didn’t know they existed, except in books, or else they were greasy little men snooping around hotel corridors.”

But he’s self-sufficient enough to stand up to her. He wins her over with a series of small rejections. And he can match her verbal pyrotechnics. When she says she doesn’t like his manners, he comes straight back at her: “I’m not crazy about yours. … I don’t mind if you don’t like my manners. I don’t like them myself. They’re pretty bad. I grieve over them long winter evenings.”


Here is a detailed Becall piece from The Rap Sheet, an excellent crime-fiction blog.  An excerpt:

A former theater usher and fashion model, Bacall first came to prominence in 1944, when, at age 19, she starred with 44-year-old Humphrey Bogart in To Have and Have Not, a film based loosely on Ernest Hemingway’s 1937 novel of the same name. Her famous double entendre-laced line, delivered to a smoking, reclining Bogie–“You know how to whistle, don’t you, Steve? You just put your lips together and … blow”–knocked out movie-going audiences everywhere, and had no less impact on Bogart himself. At the time he was already on his third marriage, to actress Mayo Methot, but he divorced her the next year to wed Bacall, or “Baby” as he called her. The pair were together only until his death in 1957, but if Bogie’s ghost is still anywhere around today, he’s whistling for her to join him today.

Ghosts.  Noir fiction and films worked on many levels, not least the theological (as we discussed in Red Harvest: Crime Fiction and Gospel Conviction).   And, at their best, they are art, as Chandler wrote in The Simple Art of Murder:

In everything that can be called art there is a quality of redemption. It may be pure tragedy, if it is high tragedy, and it may be pity and irony, and it may be the raucous laughter of the strong man. But down these mean streets a man must go who is not himself mean, who is neither tarnished nor afraid. The detective in this kind of story must be such a man. He is the hero, he is everything. He must be a complete man and a common man and yet an unusual man. He must be, to use a rather weathered phrase, a man of honor, by instinct, by inevitability, without thought of it, and certainly without saying it. He must be the best man in his world and a good enough man for any world. I do not care much about his private life; he is neither a eunuch nor a satyr; I think he might seduce a duchess and I am quite sure he would not spoil a virgin; if he is a man of honor in one thing, he is that in all things. He is a relatively poor man, or he would not be a detective at all. He is a common man or he could not go among common people. He has a sense of character, or he would not know his job. He will take no man’s money dishonestly and no man’s insolence without a due and dispassionate revenge. He is a lonely man and his pride is that you will treat him as a proud man or be very sorry you ever saw him. He talks as the man of his age talks, that is, with rude wit, a lively sense of the grotesque, a disgust for sham, and a contempt for pettiness. The story is his adventure in search of a hidden truth, and it would be no adventure if it did not happen to a man fit for adventure. He has a range of awareness that startles you, but it belongs to him by right, because it belongs to the world he lives in.

David Brooks gets the next-to-last word:

The feminine ideal in “The Big Sleep” is, of course, dated now. But what’s lasting is a way of being in a time of disillusion. At a cynical moment when many had come to distrust institutions, and when the world seemed incoherent, Bacall and Bogart created a non-self-righteous way to care about virtue. Their characters weren’t prissy or snobbish in the slightest. They were redeemed by their own honor code, which they kept up, cocktail after cocktail.

 

Speaking of cocktails.

Speaking of cocktails.

In the scene from The Big Sleep with the bookshop girl (played by Sonia Darrin), Bogart mentions that he has a bottle of rye in his pocket:

For some background on rye, an article from The AtlanticHow Rye Came Back.

In Bacall’s memory, here’s a recipe for a rye Manhattan.  Have one tonight.

Noir or white-collar, it's the rye Manhattan.

Noir or white-collar, it’s the rye Manhattan.


Impeachment Lessons and The Midnight Special

(1973-1981)

This post will eventually test your affinity for the 1970s, which featured both Richard Nixon and The Midnight Special. The Special was formative in my teenage years, which explains a great deal.

But first, many thanks to the Network of Trial Law Firms for the opportunity to speak in New York on “Impeachment Lessons for Internal Investigations”:

People sometimes ask for good basic texts about impeachment generally.  Here are a few suggestions:

Impeachment: A Handbook by Charles Black.  This slender, clear, nuanced volume is where you should start. As noted by Lawfare blog:

The most important book ever written on presidential impeachment is only 69 pages long. Charles Black, Jr.,’s Impeachment: A Handbook was published in the summer of 1974, at the height of the Watergate crisis, and reissued in October 1998, two months before Bill Clinton became the second president in U.S. history to be impeached.

Read the full post here.

Impeachment: The Constitutional Problems by Raoul Berger.  From the Amazon review:

The little understood yet volcanic power of impeachment lodged in the Congress is dissected through history by the nation’s leading legal scholar on the subject. Berger offers authoritative insight into “high crimes and misdemeanors.” He sheds new light on whether impeachment is limited to indictable crimes, on whether there is jurisdiction to impeach for misconduct outside of office, and on whether impeachment must precede indictment. In an addition to the book, Berger finds firm footing in contesting the views of one-time Judge Robert Bork and President Nixon’s lawyer, James St. Clair.

Presidential Impeachment by John Labovitz.  From the Yale University Press blurb:

In this thorough and thoughtful examination of the constitutional issues involved in the impeachment of a president, Labovitz, a lawyer who served on the impeachment inquiry staff of the House Judiciary Committee in 1974, incorporates the Nixon experience into American history over the last two hundred years.

High Crimes and Misdemeanors by Howard Fields, a UPI reporter.  Not the best on this list, but useful.

An Affair of State by Judge Richard A. Posner.  From the Harvard University Press description:

President Bill Clinton’s year of crisis, which began when his affair with Monica Lewinsky hit the front pages in January 1998, engendered a host of important questions of criminal and constitutional law, public and private morality, and political and cultural conflict.

In a book written while the events of the year were unfolding, Richard Posner presents a balanced and scholarly understanding of the crisis that also has the freshness and immediacy of journalism. Posner clarifies the issues and eliminates misunderstandings concerning facts and the law that were relevant to the investigation by Independent Counsel Kenneth Starr and to the impeachment proceeding itself. He explains the legal definitions of obstruction of justice and perjury, which even many lawyers are unfamiliar with. He carefully assesses the conduct of Starr and his prosecutors, including their contacts with the lawyers for Paula Jones and their hardball tactics with Monica Lewinsky and her mother. He compares and contrasts the Clinton affair with Watergate, Iran–Contra, and the impeachment of Andrew Johnson, exploring the subtle relationship between public and private morality. And he examines the place of impeachment in the American constitutional scheme, the pros and cons of impeaching President Clinton, and the major procedural issues raised by both the impeachment in the House and the trial in the Senate. This book, reflecting the breadth of Posner’s experience and expertise, will be the essential foundation for anyone who wants to understand President Clinton’s impeachment ordeal.

Pointing the way.

For hardcore constitutional analysis, your bookshelf should also contain Constitutional Grounds for Presidential Impeachment, the 1974 volume by the staff of the House Judiciary Committee with regard to President  Nixon.

Finally, to get the weekend started, nothing is better than The Emotions and “Best of My Love”: