I remember my first trial nearly 20 years ago.
I was still in law school, working as a student prosecutor in a failed and dingy industrial town in Suffolk County, trying a misdemeanor marijuana possession bench trial against a 70-year-old-man with no criminal record who had a nine-inch marijuana plant in a ceramic pot in his back yard. Under the ridiculous rules of the People's Republic of Massachusetts at the time, even if I won the bench trial, the defendant was entitled to ask for a second trial, this time in front of a jury. It's hard to imagine how a real-life trial could have gotten more pointless or free of potential consequences to anyone. The whole sad thing took about an hour and a half. The judge listened respectfully to my earnest opening statement while the defense lawyer rolled his eyes. Then the cop got on the stand and talked about finding the marijuana. He had written in his report that when confronted the defendant said "my ex-wife told you it was there; she ratted me out." On the stand, the cop remembered the statement as "my ex-wife put it there; she set me up." The judge found the defendant not guilty. The deputy DAs who were supervising me — barely out of law school themselves — bought me shots of awful tequila at a dive bar and bundled me through the snow onto the T, on which I threw up into a sack several times and missed my change of trains.
A relatively seasoned DA sat with me throughout that trial, because it would be ridiculous to send a baby lawyer alone into his first trial, even one as pathetic as this. Nobody would ever have let me try a serious case as my very first trial. Even later, when I left the government and became a defense lawyer, with a score of much more complex trials under my belt, I sat second chair as a defense lawyer for a while — because trying a case as a defense lawyer is a very different thing than trying one as a prosecutor. Whatever bad things you can say about my judgment — and you can say many awful things, I'm sure — you can't say that rushed to try cases I wasn't prepared to try.
That brings us to the woeful tale of Joseph Rakofsky.
Joseph Rakofsky achieved infamy in April 2011 while defending Dontrell Deaner on a murder rap in Washington D.C. It's undisputed that this was Rakofsky's first trial ever — he had only graduated from law school in 2009. Apparently he said as much to the jury during his opening statement. Midway through the trial, a conflict erupted between Deaner and Rakofsky, and Superior Court Judge William Jackson granted Deaner's request for a new attorney and declared a mistrial. To hear Rakofsky tell it, he was doing an awesome job of trying the case and Deaner only wanted to fire him because they couldn't agree on what questions Rakofsky should ask on cross-examination. He saw the result as a win and bragged on Facebook that he'd gotten a mistrial.
That's not the way the Washington Post, and subsequently a horde of legal bloggers, reported it. The Post suggested that Judge Jackson thought that Rakofsky was incompetent and that the substitution of counsel and mistrial were a consequence of that incompetence. The lawbloggers, relying on the Post story, spun it as a story of (1) irresponsibility and hubris on the part of Rakofsky, and (2) dishonest attorney marketing techniques, reflected in Rakofsky characterizing himself as a competent criminal lawyer. Many, many lawbloggers — from big dogs to small, including many of our favorites — wrote about it. You can see a list of them here.
This is America in 2011, so naturally Rakofsky found an even worse lawyer and proceeded to sue as much of the internet as humanly possible for defamation. Rakofsky's story is that, yes, the judge gratuitously and slanderously criticized his abilities, but that had nothing to do with why there was a mistrial. Rakofsky turned to one Richard Borzouye, whose primary qualification appears to be the capacity to turn chicken shit into chicken salad. Richard Borzouye fights for justice, at least to the extent that justice is sought by people on Craigslist or The Pennysaver, and boasts of offices "just two blocks from Grounds [sic] Zero," which is either a typo or the most crassly-named hipster coffee shop ever. Borzouye filed suit on behalf of Rakofsky against multiple news sites and law bloggers, alleging they had defamed him and crushed his spirit by commenting on the Deaner trial based on the Post's description. When — as anyone with a room-temperature IQ would have predicted — bloggers commented on this SLAPP suit, Borzouye and Rakofsky amended their suit and added claims based on those new comments, as well as claims for intentional infliction of emotional distress and possibly of Emo Butthurt in the First Degree (I may be misremembering that part). The redoubtable Mark Bennett is keeping a compendium of lawblogger posts about the lawsuit.
This will end badly for Rakofsky and, one hopes, for Borzouye. As smarter people than I have pointed out, they have no personal jurisdiction over the out-of-state bloggers in New York, their defamation claims are stunningly frivolous, and the whole maneuver seems likely to generate three or four orders of magnitude of bad publicity more than Rakofsky already suffered. Other bloggers have already explained, in detail, while the Post's take (and the subsequent lawblogger posts) are fair comment and not actionable.
Let me just add this: even in the strange world Rakofsky seems to inhabit, based upon the chain of facts that he describes in his complaints, his conduct is still contemptible and worthy of loud public condemnation by members of his profession. Here's why, Mssrs. Rakofsky and Borzouye:
1. If you've never tried a case before, and you decide to defend someone accused of murder, then you've got both freakishly bad judgment and an epic case of hubris. I don't care if you've got the bastard son of Johnnie Cochran and Gerry Spence as your second chair — no responsible attorney would take someone's life into his hands in his first trial. This is not a John Grisham novel or The Measure of a Man in which fanciful circumstances thrust an unsuited person into the defense of an accused who has no alternative. There are public defenders, and they have tried cases before.
2. If the judge watches your opening statement, and then asks your client twice whether he might prefer another lawyer, then that does not reflect well on your abilities, even if the client says no. If you're suing people for saying that you're an unqualified idiot, you might not want to emphasize that the judge reacted to your opening statement by asking your client if he wanted a new lawyer.
3. Competent and experienced lawyers prepare their clients before trial for the fact that they will not be asking every hare-brained question the client wants to ask; that's called "client control," and it's a skill acquired with experience. If you reach an impasse with your client mid-trial over what to ask, you haven't prepared properly. Moreover, judges don't generally let defendants fire their attorneys mid-trial over such disagreements. If they did, do defendant would ever suffer a guilty verdict — they'd just keep firing attorneys. That's why a judge has fairly broad discretion to deny requests to substitute counsel when doing so would cause delay or mistrial. When a judge lets a client fire his attorney mid-trial, it's a sign that something is gravely and unusually wrong.
4. If you have to resort to listing the trial advocacy videos you've watched on your firm website to make yourself look qualified to try criminal cases, then you aren't qualified, and have appallingly bad instincts about what "qualified" even means.
5. If I decide today that I want to be a ballerina, I can put up a web site saying that one of my areas of interest is being a ballerina, even if I've never danced and couldn't fit into a tutu, because nobody cares. But if I'm a lawyer advertising for clients, and say that one of my "practice areas" is criminal law and that I've "worked on cases involving Murder [sic]", when I've never tried a case and what I mean is that I was a law clerk someplace and touched a murder case, then I'm being deceptive to make money.
It's entirely possible that Rakofsky and Borzouye will true to sue Popehat.com (which does not even exist as a legal entity, but that hasn't stopped them so far) for this post, even though it consists entirely of opinions protected by the First Amendment, facts they've admitted, and assertions backed up by specific evidence. If they do, they'll be wasting their time and money — New York has no jurisdiction over any of us here. We could ignore them, as most of these bloggers probably will, and watch them sputter and piss away whatever reputation they will ever have and dance with the Streisand Effect. But it would be tempting — deadly tempting — to appear and inflict upon them the consequences they so richly deserve. It would be tempting to proceed based on Marc Randazza's magnificent defamation-defense precept murum aries attigit — that is, "the ram has touched the wall," a reference to the Roman practice of slaughtering everyone in a city without mercy if they do not surrender before the siege begins.
Rakofsky and Borzouye richly deserve sanctions and quite possibly disbarment based on their contemptible conduct. One can dream of being the one to usher them there.
Edited to add: There can be no excuse for my forgetting to mention Eric Turkewitz' entirely apt response to the suit — Joseph Rakofsky, go shit in a hat.
Last 5 posts by Ken White
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- Hillary Clinton, the Sixth Amendment, and Legal Ethics - October 10th, 2016
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