Faulty Airbags Symptom of Larger Issue

Exploding airbags, spontaneous combustion, unresponsive brakes and ignition key failures. What’s next? These are only a few of the many dangerous risks that are facing millions of drivers every day in this country.

About a month ago, a young woman died in a traffic accident. The police thought she had been violently stabbed beforehand, perhaps causing the accident, but no. It turns out that the horrible stab wounds were actually caused by “shrapnel” that flew into her body because of a faulty airbag.

Now, 7.9 million cars have been recalled for “faulty” airbags. This is in addition to GM’s 26 million recalled vehicles. There have been at least 35 recalls announced by auto manufacturers in the last month alone.

Why are manufacturers able to get away with cutting corners and risking the lives of millions of people? Well, for one, did you know that the Michigan Republican legislature immunized drug manufacturers? That’s right, immunized! Michigan citizens are the only ones who cannot sue if a drug manufacturer kills or injures you.

Don’t you feel safer?

Republicans also made it virtually impossible to sue all other manufacturers, including auto. That’s why you never see or hear of a verdict in Michigan for a defective product – like Jeep rollovers, etc.

Feel safer?

These manufacturers can only get away with it if the people are sheep, following along and allowing them to do whatever they want.

It’s time for a little Fieger Time rabble rousing if you ask me.

What I Do

For decades now a coalition of business interests have conducted a campaign to belittle the role of attorneys in our society. In fact, if you believe the common stereotype, lawyers are ruining the world.

I come across this attitude a lot when socializing, in the form of jokes or the occasional hostile comment. A lot of people adopt this attitude … until they need help, and that’s the point of this blog: trial attorneys are the anti-heroes of our society.

Maybe cast in a role as troublemakers, we are the ones who resolve conflicts before they spill over into violence or anarchy, oppression or repression. Without a civil justice system as a rampart, society would quickly degenerate into violent anarchy, and trial lawyers are the ones who walk those ramparts.

Without trial lawyers, the power of government would go unchecked into totalitarianism, corporations would be free to justify any behavior. Remember, it wasn’t a government agency or reporter who exposed the GM ignition danger. It was a trial attorney, doing what we do: fighting for clients, mining the truth, taking on the powerful. It might sound cliché, but it is true far, far more often than not.

I don’t consider myself a troublemaker, but I plead guilty to being an agitator. I consider it to be my duty to effect social change toward a more just society. It is my job to find and correct injustice. I don’t chase ambulances: I am the ambulance. Although I would rather have the public recognize my fellow trial lawyers as the heroes they are, it is enough for me to be a hero to my clients, and a thorn in the side of the powerful.

Trials: Every Verdict Tells a Story

I am in the process of trying a case in Wayne County Circuit Court on behalf of a little girl who was forced to be born in a jail cell because her mother was imprisoned and denied necessary medical care by a local hospital. As I was taking the drive to court this morning I heard a radio report of a hunger strike among prisoners in California protesting that state’s practice of condemning large number of prisoners to solitary confinement. That state already is under a court order to relieve massive overcrowding. I wonder how it is that we have become a country that imprisons more people than any other nation in the world.  

In Michigan, one of the largest segments of employment, especially in the Upper Peninsula, is corrections. In a state with more prisons than some countries have, more prisons are being built. If one were to base a guess on what is happening with the prison system based on who is there, one could say that our country has decided to imprison African-American males as a social policy, and the mentally ill, and non-violent drug users. 

Violent crime is at an historic low, yet our prison population is at an historic high. I wonder if imprisonment has become the default setting on a society that refuses to address the social problems that require more effort and long-term investment. Just like the medical and prison staff who turned their eyes away from a woman and child in need, as a society we turn our eyes away from those in need: the mentally ill and homeless, the impoverished, the marginalized in our society. 

Or when we can’t avert our eyes, we imprison them. 

 

Stand Your Ground: Dunn Verdict

If justice had been done, then Michael Dunn should have been convicted of first degree murder, but in Florida and other “stand your ground” law States it is virtually impossible to get a murder conviction. Some of the jury in the Dunn case followed the law and that’s the problem: stand your ground laws create an impossible burden to prove first degree murder based on evidence alone.   Especially when a white kills a black.

First degree murder in the Dunn trial was proper because in Florida the intent to kill can be formed between the first and second shots. Dunn fired 10 times at a car moving away from him over a space of 4-5 seconds. He basically emptied his gun at a car driving away from him. The problem is that the “stand your ground” laws provides only a subjective test of the fear of imminent death for a shooter. In other words, it is not necessary for a person who kills someone else to make a decision that a reasonable person would have done in similar circumstances. It is not necessary to have any reasonable basis to believe anyone is a threat. All a murderer like Dunn has to say is that he really felt threatened, whether there was objective reason to feel threatened or not.

In Florida, the subjective standard of a perceived threat was adopted after testimony like the following:  One woman asked Legislators why she would have to wait until someone attempts to rape her before she is able to kill them? Her point was that if she feels some guy wants to rape her (whether there is any reasonable basis for that belief or not), she should be free to legally shoot him dead. In Florida, and many other States, that sounded logical and reasonable to Legislators dependent on NRA approval ratings and contributions.

As a father of two young children of race, I certainly understand the fear and outrage of African-American parents. “Stand your ground” laws have not reduced crime. They have not reduced homicides or attempted homicides – in fact they have increased homicides in the States that have adopted this law. The law is nothing more than a declaration of open season on African Americans, who are routinely misperceived as a “threat” by white people.

Stand your ground is a license for whites to murder blacks.  Period.

A Lesson in Double Jeopardy

The Fifth Amendment to our Constitution provides that “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb” This language is commonly referred to as the Double Jeopardy Clause. Most people understand this language to mean that the government cannot try to “get you twice” for the same crime. That is a pretty good summary of the broad concept, but there are some finer points to how it works.

Let’s pretend that the government charges you with a crime. You get a lawyer and go to trial during which the prosecutors present evidence to the jury. After the government concludes its case, the defense counsel usually files a motion for a directed verdict. This motion basically asks the court to throw out the charges and enter an acquittal because the prosecutors failed to present sufficient evidence of a crime. This is a very important motion that acts as a check and balance system on the executive branch (i.e., police, prosecutors, district attorneys).

You see, the government has the power to charge a person with a crime, but if they fail to present any evidence of the crime, the judge is supposed to “check” the executive branch by throwing out the case. Without this check and balance system, prosecutors would be allowed to charge you with a crime knowing they didn’t have any evidence and convince a jury to convict you because they didn’t like your hair. That is not the way it is supposed to work. The motion for directed verdict is a powerful check on the prosecutor to prevent him from convicting a person of a crime without any evidence.

In practice, defense lawyers almost always file motions for directed verdict but they are rarely granted. Well yesterday a judge in Arizona granted a defendant’s motion for directed verdict and it seems to have caused quite a stir.

Apparently, Arizona Attorney General Terry Goddard tried to charge local gun dealers who he accused of arming Mexican drug cartels. It seems that the gun dealers made legitimate sales of weapons to individuals who later shipped the weapons to Mexican drug cartels. Because the gun dealer’s sales were legitimate under state law, the Attorney General basically had no case, but it didn’t stop him from charging the crime. This is a text book example of when a judge should grant a directed verdict, and that is exactly what Judge Robert Gottsfield of Maricopa County Superior Court did. Judge Gottsfield threw out the case, as he should have, because the prosecutors didn’t have enough evidence to convict but instead wanted to bend and twist the law to make up a different crime.

By no means am I suggesting that gun dealers should be arming drug cartels, but prosecutors should not be allowed to overreach and “make up the law” to promote their own self righteous agendas. If they want the laws changed to make it easier for them to charge crimes, they need to go to their state legislature to do it. But they should not expect the judges to give them a hand in their endeavors.

Of course the Attorney General is mad as hell because the judge actually enforced the constitution and threw out the case. In an interview reported in the New York Times, Goddard said “It’s not over by any means” and went on to say “We are trying to make sense of it.”

I’m sorry to tell you Mr. Goddard, but it is indeed over. Let me break this down for you. The Double Jeopardy Clause doesn’t allow you to continue your crusade once the Judge granted the motion for directed verdict. The grant of a motion for directed verdict is the same as an acquittal. Once there is an acquittal, your case is over. You get no appeal, even if the Judge’s reasoning underlying his ruling is wrong so says the United States Supreme Court.

You may want to take a look at the Supreme Court’s decision in Smalis v. Pennsylvania, 476 U.S. 140 (1986) in which the highest court of our land ruled that if the trial judge grants a motion for directed verdict for lack of evidence, there can be no further proceedings or appeal by the government. To be more specific, the Supreme Court held that:

The Double Jeopardy Clause bars a postacquittal appeal by the prosecution not only when it might result in a second trial, but also if reversal would translate into “further proceedings of some sort”

In State of Arizona v. Millanes, 180 Ariz. 418 (1994), the Arizona Court of Appeals has already followed the Supreme Court’s decision in Smalis.

So what does this all mean? In short, its over. Thank God for our constitutional system of checks and balances, and even more so for judges like Robert Gottsfield who are willing to “check” prosecutors for trying to skirt our constitutional rights.

Rigging the Jury

For more than 100 years, the United States Supreme Court has overturned criminal convictions handed down by juries that excluded blacks from the jury pool. As early as 1881, the Supreme Court has considered whether “by the Constitution and laws of the United States, every citizen of the United States has a right to a trial of an indictment against him by a jury selected and impanelled without discrimination against his race or color, because of race or color” Strauder v. West Virginia, 100 U.S. 303 (1880).

In the 100 years following Strauder, the Supreme Court has thrown out conviction after conviction where it was discovered that black jurors were not fairly represented within the jury pools. Congress eventually codified the Supreme Court’s decisions into the Jury Selection and Service Act, 18 U.S.C. § 1861 et. seq. Under this Act, the federal courts must ensure that its jury pools are representative of the community and that the counties within each federal district are “substantially proportionally represented in the master jury wheel” 18 U.S.C. § 1863(b)(3). If these provisions are violated, a criminal defendant can ask that the indictment against him be dismissed, or that the proceedings be stopped until the problem is fixed.

According to a physical inspection of the master jury wheel for the Eastern District of Michigan, the federal court is employing a jury selection plan that is grossly unconstitutional. Court records reveal that black jurors and Wayne County residents are being systematically excluded and under represented on the court’s jury pools in favor of white jurors from the district’s predominately Caucasian counties. The inspection also revealed that almost 10% of the master jury wheel contains the names of dead people some of whom died as long ago as 1991. This is a serious problem, and it needs to be fixed.

Without a legitimate jury selection process, any and all indictments and convictions coming out of the court are constitutionally infirm. As the United States Supreme Court stated in Glasser v. United States, 315 U.S. 60 (1942):

The proper functioning of the jury system, and, indeed, our democracy itself, requires that the jury be a ‘body truly representative of the community.

Legacy

Every once in a while I take on a case that has even more meaning than the suffering of my client alone. Last week we took on such a case and it really brings home the cost of the war in Iraq and an incredible injustice that is being done to our veterans.

I was contacted about a Marine who had returned from Iraq (he had done multiple tours) with his unit. He was what is called “squared away” – multiple citations for valor, a really outstanding Marine. He was the kind of guy who volunteered for check points because he didn’t want his friends to pull dangerous duties.

He was best friends with a man who suffered from PTSD (Post Traumatic Stress Disorder) and who eventually committed suicide after he got back. His senior NCO had my client clean up his friend’s brains from the walls and floor because, he was told, he was responsible for his friend.

The adjustment of being back in the States became very difficult, especially after the suicide of his friend. My client became depressed, had nightmares, etc. – all of the classic symptoms of Post Traumatic Stress Disorder. He threatened suicide with a pistol and the police were called. He surrendered to the police and emptied the clip to his pistol onto the street. The police took his pistol and were in the process of arresting him when he was shot in the neck by one of the officers with the same pistol he had surrendered to them. He is now a quadriplegic. I am representing him and trying to prevent the University of Michigan Hospital from transferring him to a V.A. Hospital, where he is likely to get substandard care.

None of the Armed Services recognizes the diagnosis of PTSD, even though it has been a recognized medical illness for decades. They do not want to take on the costs of treating service men and women traumatized by war. This is unjust. I will take care of my client, but what about the thousands of others who are suffering? Last month we lost more servicemen and women to suicide than we did to combat. That is a disgrace and I hope everyone reading this will write their Congressperson and demand action on this serious problem.

Wyoming

I spent the last five days in Wyoming at Gerry’s Spence’s Trial Lawyer’s College. Spence and I taught a seminar about my trial. Lawyers from all over the country came to hear about how we won the case and to hear about Gerry’s last trial. It was sort of strange to relive such a painful time of my life. At the same time, I continue to appreciate the greatness of Gerry Spence. We ended the seminar with me reading a portion of Gerry’s closing argument. There were few dry eyes in the room, just like during the trial. I’ve heard a lot of closing arguments in my life, and I can tell you that Gerry Spence’s closing argument in my case will go down in history as one of the greatest closing arguments ever.

Listening

Gerry Spence and I were close long before we actually met each other. Gerry had invited me to speak at the Trial Lawyers College, but my trial schedule stood in the way. Since then we have had a chance to talk a lot about trial practice, the trials we have been involved in and, of course, I had the unusual perspective of watching Gerry represent me against the Government.

Gerry and I are a bit of an “Odd Couple”. Gerry is like a trial Zen Warrior who likes to go around the mountain to get to the other side; usually if its in my way I will knock it down – he is a Siren gently calling the defense to ruin on the shoals of Anthemusa, whereas me – well FiegerTime has been compared to a visit by Genghis Khan or a Sunday ride with Gen. Sherman.

While we joke about the apparent differences in personalities whenever we talk, over the years we have recognized that we share much more in common. For example, we share the ability to listen – not just to hear but to listen. Believe me; if you knew Spence you would know the difference. Gerry’s hearing is about as sensitive as a moon rock, but he can listen more astutely than anyone I have ever known. (Sorry Gerry, I couldn’t resist.)

How many times do we “hear” something and make the mistake that it is something we have heard before? It’s because we don’t listen. Scientists tell us that our brains “fill in the blanks” or complete the sentence. It takes a conscious effort to really listen. The more familiar a person is to us the harder it becomes to “listen”. As lawyers, we often talk to a client who has suffered some horrible damage that we have come across in many other cases and there may be a tendency to say “I have heard this story before… I know what happened, now let me do my thing.” That would be a natural tendency and it would also be a mistake. You have to listen to every person carefully because while the damage may be familiar, HOW they experience it is always different and can have a tremendous effect on the case’s outcome.

The willingness and patience to actively listen to every person is not just important for the success of a trial lawyer – it is important for every relationship we have. Think about it. If we actively listen the least to the most familiar, what does that mean to our closest relationships? And these are the people who mean the most to us! We need to listen to everyone in our lives if we want to be successful, whether they are our children or clients. Listen and understand what they are saying to us even if we think we have heard the words before.

The ability to listen is not a genetic trait that comes automatically. It requires practice and most of all, effort. For example, I head what some would describe as the largest and most successful Plaintiff’s law firm in Michigan; we try cases all over the Country. I’m always being asked to speak or give interviews to the media. I am the father of 3 beautiful children ages 7, 5 and 1. In other words, I am super busy. At times it seems like I have 5 people talking to me at once. Because I am so busy I always remind myself that my success as a lawyer, father & as a friend depends upon my willingness to take the time and effort to LISTEN and to be kind.

The politics of fear

We just finished a long nightmare with the Government which began three years ago with a raid by nearly 100 FBI agents on my office and the homes of my employees. The agents raiding my law firm had Kevlar vests and extra clips of ammunition – shock and awe. Were they looking for terrorists? No. Their allegations were that we had violated Campaign Finance Laws. More armed FBI agents were assigned to investigate our contributions to the Edwards presidential campaign than troops had been tasked to find Osama bin Laden at Tora Bora. I’m not kidding! In the end, the Government spent millions of dollars to investigate less than $150,000 in contributions. Why?

The heavy-handed tactics of the Justice Department were calculated to produce one thing: FEAR. Bush justice hoped that fear would produce evidence so they threatened my employees – who were offered deals to buy their freedom through false testimony. Dozens of people were told “you are a criminal and you will lose your job, your family and go to jail unless you cooperate against Fieger.”

This brings me to a point: fear is a powerful emotion and a powerful tool.

Fear is the tool that Governments have used to get consent. We need look no farther than the past few years to passage of the Patriot Act and FISA as contemporary examples of how many Americans are willing to sacrifice liberty for the illusion of security. Fear is the companion of tyrants. The only defense to fear is the courage to act for something more important than ourselves.

“Fear is the companion of tyrants. The only defense to fear is the courage to act for something more important than ourselves.”

In my case, the Government wanted to take me out as an example to other attorneys. In a policy that originated in the White House, the DOJ began to target trial lawyers who were contributing to the 2004 Edwards Campaign (Edwards was considered by Karl Rove as the probable Democratic nominee) with the goal of suppressing contributions by prosecuting trial attorneys in highly publicized trials. I was a trial lawyer, a former candidate of the Democratic Party for Governor of Michigan and prominent advocate of Edwards as President. “W” had attributed his loss of the Michigan Primary in 2000 in part to me in a concession speech delivered at Lawrence Technological University. In other words, I was a perfect target for them – except for one thing: I wasn’t afraid of them.

I wasn’t afraid of them but I was afraid of what they could do to my friends and their families. In the end though, I was less afraid then I was outraged by their tactics. I was NOT going to let them get away with it. Not only my career and freedom were on the line, but also the livelihood of over 60 loyal employees and hundreds of their family members, not to mention the of safeguarding the electoral system and the judicial system.

It sounds like an exaggeration to consider my resistance as important for the electoral and judicial systems but this is how I thought of it. If we allow the Bush Administration to control who their opposition was (by intimidating contributors), then we were in big trouble. This was not an isolated case of payback or intimidation. I was part of a campaign being run by the DOJ.

A Medal of Honor winner once was asked if he was ever afraid. His response was that he was always afraid in combat. He said that real heroes were not people who had no fears; they were people who overcame their fears and did the right thing. I was fortunate to have the best trial attorney in the country representing me – my friend Gerry Spence. He is a man of great courage, maybe not so much for fighting the government as for being willing to have a trial attorney as a client. Together, we had the courage to fight and to prevail. I must admit that during jury deliberations I felt fear — loss of control of my destiny, and it was Gerry who got me through this tough time.

I am most proud of the fact that my partner, Ven Johnson, was also charged and faced the same penalties I did, but he never wavered once. He was charged for one reason only – to flip against me in exchange for a “deal”. He could have easily saved hundreds of sleepless nights and his career by taking their deal. He had a family to consider as well as his own career and freedom. The same was true for each and every one of the employees of my law firm. Some of them were scared to tears. Yet not one single employee agreed to falsely testify for the Government. I could not have been more proud of them. You see, these were ordinary citizens, secretaries, maintenance, couriers, etc., many with no training in the law, who overcame their fears and became heroes. In contrast, and very much to my embarrassment as an attorney, many of my fellow Michigan attorneys were cowed into silence. I guess lawyers are subject to the same fears as everyone else – fear for their livelihood, their freedom. I have always believed that attorneys were the first line of defense against tyranny. But in this case the courage of ordinary citizens shamed the silence of the legal community. In this case, ordinary citizens showed attorneys how to defend liberty.

We all have fears and it is a powerful, primal emotion. Fear helps us to survive. But when fear paralyzes us then it is debilitating. I chose to fight. I believe that what distinguishes real lawyers from those who simply have a law degree is the strength to overcome fear and act for the good of all.

How do you deal with your fear?