Women Criminal Defense Attorneys: The Glass Ceiling Begins to Crack

by Susan Bozorgi on April 23, 2014

Every passing day there is a new book or story about the challenges facing women in their pursuit of success and equality. The Confidence Code: The Science and Art of Self-Assurance — What Women Should Know, co-authored by journalists Katty Kay and Claire Shipman, takes on the issue of women lacking confidence even when they are more competent than their male counterparts. The book was highlighted in an Atlantic Article and has received a tremendous amount of media attention, both positive and critical, from outlets like the Washington Post and Slate, which criticizes the book as being nothing more than a cheerleading exercise for rich successful women.

This isn’t the only recent addition to the conversation. There is a new book called 9 Ways We are Screwing up Our Girls and How We can Stop by Anea Bogue which has been highlighted on the Maria Shriver Blog and on The Shriver Report. The book forces all of us to take an honest look at how we contribute to the messages that young girls receive, which result in the lack of confidence discussed above.

Regardless of where you land on any of these discussions, what’s important is that the conversation is alive and well.  For decades, professional women wouldn’t dare openly discuss a “woman’s issue” for fear that it would set them apart from their male colleagues and harm their career prospects. The fact that the conversation about women in business and law continues is an encouraging sign, to me, that the glass ceiling is beginning to crack in a big way.

Women Criminal Defense Lawyers: What’s Happening in the White Collar Field

by Susan Bozorgi on April 16, 2014

The world of white collar criminal defense is always fast-paced, and this week I thought I would take some time to look at recent developments in the field, and at the implications these developments may have on us as attorneys, and on our clients. Below are several events that caught my attention the last couple weeks… what are your thoughts?

Bridgestone Corporation admits guilt and agrees to a pay a $425 million dollar criminal fine. They will plead guilty to one felony count filed in the Northern District of Ohio, for conspiracy to allocate sales, rig bids, and fix prices of parts sold to major car and heavy industries companies. When the guilty plea was announced, Brent Synder, deputy assistant attorney general for the antitrust division’s criminal enforcement program, was quoted as saying, “Today’s significant fine reaffirms the division’s commitment to holding companies accountable for conduct that harms U.S. consumers.” In fact just yesterday the Government announced the Indictment of one current and two former Bridgestone executives for conspiracy to fix prices of automobile parts. I certainly think we can expect to see more antitrust criminal cases in the future.

Rajat Gupta insider trading conviction affirmed on appeal by the Court of Appeals for the Second Circuit. This is no big surprise after the Second Circuit denied Raj Rajaratnam’s insider trading conviction last June, which included a challenge to the denial of his motion to suppress the wiretap evidence due to the Government leaving out crucial information in the wiretap application.  Gupta had a parallel issue in his appeal along with many trial issues that hampered his defense. These two rulings will serve only to empower the Government’s use of  “wild west” tactics in the war against insider trading.  It is a new day… the “war on drugs” may be winding down, but the war on financial crime has taken its place. No doubt we will continue to see a steady flow of criminal insider trading cases.

The Dewey & LeBoeuf Indictment is a 106 count Indictment brought by Manhattan District Attorney Cyrus Vance against four leaders and employees of the collapsed law firm.  The defendants face charges of securities fraud, grand theft and falsifying business records. The essence of the charges is that these leaders of the law firm developed a scheme to lie about the finances of the failing law firm to cheat banks, lenders and investors.  Much of the evidence in the case revolves around email communications that sound bad, to say the least.  The case originated out of a parallel SEC investigation. What caught my attention as well as many in the media was the inclusion of a young attorney, Zachary Warren in the Indictment who voluntarily appeared unrepresented before the SEC believing he was a cooperating witness, only later to learn that he was in fact a target and was included in the Indictment.  This case is a reminder of the dangers of a parallel civil investigation and the importance of being represented by counsel at all stages of an investigation.

The FCPA Indictment filed in the Northern District of Illinois charges Ukrainian billionaire Dmytro Firtash and five other foreign nationals with paying over 18 million dollar in bribes to government officials in India relating to the mining of titanium minerals. In the DOJ Press Release the Acting Assistant Attorney General David A. O’Neil of the DOJ Criminal Division is quoted as saying “Fighting global corruption is part of the fabric of the Department of Justice,” and “The charges against six foreign nationals announced today send the unmistakable message that we will root out and attack foreign bribery and bring to justice those who improperly influence foreign officials, wherever we find them.” This development reveals just how aggressively our government is pursuing prosecutions, all over the globe, even regarding matters that have little or minimal connection to US businesses.

These are just a sampling of what is currently happening across the country. Without question, financial and corporate crime cases are on the rise, and I think we will only continue to see an increase in these kinds of prosecutions.  As women continue to make their mark in the traditionally male dominated white collar field, let’s work together to ensure that many of these cases will feature a strong woman criminal lawyer seated at the defense table.

Women Criminal Defense Attorneys: Jan Little Honored for Her Contribution to the White Collar Field

by Susan Bozorgi on April 9, 2014

The NACDL awarded the 2014 White Collar Criminal Defense Award to Jan Little and her partner John Keker during the White Collar Defense College held at Stetson Law School. The award is presented to lawyers who have made a profound impact on the white-collar field. Jan Little is a partner at Keker Van Nest in San Francisco and, with her law partner, has been involved in some of this country’s most recognizable white-collar cases, including the representation of Enron CFO Andrew Fastow and attorney Dickie Scruggs, to name just a few. Jan Little has been practicing criminal defense for over twenty-five years, and in that time has handled new and novel white-collar cases such as the country’s first “stock options backdating” prosecution.

NACDL Executive Director Norman Reimer presented the award, and stated, “This year’s recipients of NACDL’s White Collar Criminal Defense Award, John Keker and Jan Nielsen Little, partners at Keker & Van Nest LLP, are truly a dynamic duo. They are two lawyers of extraordinary talent and tenacious resolve who not only excel in advocacy for their clients, but excel also in setting the highest standards of professionalism and service to their colleagues in the defense bar and society at large.”

This isn’t the first time that Jan Little has been recognized for her excellence in the field. For many years consecutively, the Daily Journal has recognized her as one of California’s Top Women Lawyers.  She is also consistently recognized in Best Lawyers and Chambers.  She lectures around the country on various white-collar criminal law topics. Beyond her success as a criminal trial lawyer, she has been a champion for women in the field long before most of us were discussing the issue. She published Ten Reasons Why Women Make Great Trial Lawyers way back in 2006, and I know that the article served as a great inspiration for many women. Bravo to Jan Little… and keep up the great work!

Women Criminal Defense Attorneys: Ban “Bossy”?

by Susan Bozorgi on April 2, 2014

There is a huge debate regarding the campaign started by LeanIn.org and Sheryl Sandberg in partnership with the Girl Scouts, called Ban Bossy. A number of highly visible women have joined Sandberg, including Beyonce, Condoleeza Rice, Jennifer Garner, and Jane Lynch. (See this video introducing the campaign.) And, the discussion has included the beneficiaries themselves, young girls. (See video.)

The campaign is centered on the belief that boys are praised for asserting themselves, but young girls are branded as “bossy” for doing the same thing.  The heart of the campaign is encouraging young girls that leadership and leading is not something to be ashamed of, but something to be encouraged and celebrated.

Instantly the criticism began to roll in, much of it from other women. Examples include a Huffington Post article entitled 5 Reasons I will Not Ban Bossy, Time Magazine’s I Don’t Give a $*%& If you Call me Bossy, and Slate’s Bossy Doesn’t Have to Be a Bad Word. A She Knows blog entry titled Like a Boss had a different reaction, and chose to interview girls about the word “bossy” in order to explore what this concept really means to young girls.

I have discussed before how much I appreciate Sheryl Sandberg’s efforts and I personally applaud the campaign.  Any effort aimed at encouraging young girls to assert themselves, raise their hands, and lead is a win-win in my opinion.  Whether we should or should not remove the word “bossy” from our vocabulary is missing the point. From where I stand, any way that we let young girls know that the adults around them are encouraging them to assert themselves and lead is a great and important message.

What do you think?

Women Criminal Defense Attorneys: Interview with Abbe Smith

by Susan Bozorgi on March 26, 2014

Abbe Smith is a Professor of Law at Georgetown University and since 1996 has served as the Director of the Criminal Defense and Prisoner Advocacy Clinic. Prior to that, she was the Deputy Director of the Criminal Justice Institute at Harvard Law School.  Smith started her legal career at the Defender Association of Philadelphia and spent eight years as a public defender before entering academia.  Today, Abbe Smith continues to actively practice as both a clinical supervisor and member of the Criminal Justice Act panel.  She has written extensively on criminal defense, legal ethics, juvenile justice, and clinical legal education.  She is the author of the book Case of a Lifetime: A Criminal Defense Lawyer’s Story, which was highlighted in the Washington Post, and co-author of the newly released book How Can You Represent Those People? Abbe Smith has dedicated her career to inspiring young lawyers and motivating a new generation of indigent defenders. When you consider that, with every passing year, indigent defense continues to be marginalized, the significance of her impact on our profession is profound and powerful. I am honored to introduce you to Professor Abbe Smith.

You started out your career as an Assistant Defender at the Defender Association of Philadelphia and then gravitated to the academic sector. What drew you into academics and what inspired you to focus on working with law students and shaping our future defenders? 

I like to say I am a public defender in my soul, but I now work in slightly fancier digs.  I consider myself lucky to do what I do:  I teach and mentor law students as both a clinical and classroom teacher; I teach and mentor talented post-graduate fellows committed to careers in indigent defense; I am actively engaged in criminal law practice myself – while I teach and mentor others; and I do a lot of writing – both scholarly and more creative.  What a great job.  Still, in law school, I might have won an award – if one existed — for the “least likely to become a law professor.”  I did not especially like law school; I experienced it as oddly anti-intellectual and careerist.  I was a very happy Philadelphia public defender; in some ways, those were the happiest years of my professional life.  Certainly, my public defender colleagues are by far my favorite colleagues ever.  I sort of “fell” into the academy when I got a call from CUNY Law School – New York’s public (and public interest-oriented) law school – asking whether I might be interested in teaching criminal law there.  It sounded like an interesting opportunity, but not necessarily a permanent one.  CUNY was a very interesting place, and I juggled teaching and public defense for a few years before I took a job at Harvard Law School in 1990 to help create a curriculum-driven criminal defense clinic there.  After six years at Harvard, I came to Georgetown to teach in and help direct the criminal defense clinic and E. Barrett Prettyman Fellowship Program – the gold standard for criminal defense clinics and post-graduate fellowship programs.

You have spent years committed to working with law students in clinics focused on introducing students to the criminal defense field through the representation of indigent clients in the criminal justice system. What type of role do you think these kind of clinics have in shaping the next generation of advocates and encouraging graduates to seek a job working with indigent clients? 

I hope I am helping to mold the next generation of indigent defense lawyers, prisoner rights lawyers, and death penalty lawyers (though maybe, hopefully, there will be no need for death penalty lawyers in this next generation).  Law school clinics are a very intense and intimate way to learn about lawyering on behalf of the poor and marginalized.  Nothing could be more profound or formative for a law student than stepping into a criminal courthouse, jail, or prison – and seeing the disproportionate number of poor black and brown people.  We think and talk about everything in the clinic.  The abiding principle of clinical legal education is that students learn best—in the deepest and most engaged way—when theory is applied in practice and students reflect on their role as lawyers in the broader context of law and society. The clinic I teach offers students an intensive experience in indigent criminal defense and prisoner advocacy. Through client representation, classroom lectures and discussion, simulations and exercises, small group “case rounds,” and individual supervision meetings, students obtain a rich understanding of the culture and ethics of indigent criminal defense, and develop expertise in criminal trial advocacy and the representation of prisoners in administrative proceedings.

Do you see any particular significance or advantage for women law students in having access to practical, hands-on legal experience? 

I’m not sure it’s gendered.  I think it’s important for all law students to have access to hands-on legal experienced under close supervision.  But I do think women get something out of working closely with an experienced woman lawyer and teacher who can talk about the role gender does play in criminal defense.

Do you think women bring unique skills or advantages to trial work and advocacy? And if so how can those skills be best passed on to the next generation of women lawyers? 

That’s an interesting question.  For the past few years, there have been more women than men in my criminal defense clinic – and more women than men in the Prettyman Fellowship Program.  I don’t know whether this is a trend or just coincidence.  Women seem to be gravitating to criminal trial work – especially on behalf of the poor. I don’t want to sound like an “essentialist,” but probably women bring some different things to criminal defense.  I think it’s not coincidental that the founder of the concept “holistic defense” – and its biggest booster – is Robin Steinberg, founder and director of The Bronx Defenders.  Women might be particularly drawn to holistic work – to representing the whole person and not just their particular legal case.  But that doesn’t mean women can’t be “trial jocks” – as much into trying cases as guys.

You are still actively practicing through your participation in the Criminal Justice Act (CJA) and as a clinical supervisor to law students working in your clinic. How important do you think it is for professors to remain active in their field of specialty and how do you think it contributes to your ability to both inspire and challenge your students? 

I need to maintain my trial lawyer credibility for me and for my students and fellows.  I’d feel like a phony – or a has been – if I didn’t know I could still try a case.  For me, law practice and teaching go together; they inform each other.  I think I am a better teacher because of my lawyering, and a better lawyer because of my teaching.

Being that you have a front row seat to the women that have been entering our field since 1990, what have you witnessed changing for women or that still needs to change for women interested in becoming criminal lawyers?  

There are many more women criminal defenders now than there were when I joined the Defender Association of Philadelphia in 1982.  Not that there weren’t many women defenders then; there were.  But there are many PD offices that are majority-female these days.  That wasn’t the case when I began.  I would say the thing that hasn’t changed very much, if at all – and this makes me kind of sad – is that there still are relatively few moms who are senior trial attorneys at public defender offices.  Once women have kids, they go into appeals or juvenile (the juvenile bench trial schedule is a bit more manageable than an adult felony jury schedule), or some other non-trial division of the office.  I think this says more about the persistence of traditional gender roles in domestic life – women keep the home fires burning once there are children — than it does about women’s stamina as defenders.

You are the author of many books, but two really stick out as contributing to memorializing the voice of the female criminal lawyer. One is Case of a Lifetime: A Criminal Defense Lawyer’s Story released in 2008 and the other How Can You Represent Those People? which you co authored and was just released in 2013. I know they are very different books but explain what motivated you to write these two books and what impact do you think they have had for other lawyers and especially women lawyers? 

I started to write Case of a Lifetime as part of my effort to gain the release of the client whose story is at the heart of the book: a woman named Patsy Kelly Jarrett, who spent more than 28 years in prison for a crime she didn’t commit.  I was able to finish it once Jarrett got out.  The book is as much a lawyer’s memoir – my memoir – as it is a story of a wrongful conviction.  It’s a very honest account of what it’s like to be a criminal lawyer – representing the guilty and innocent alike.  How Can You Represent Those People? was a collaborative project with my longtime “professional partner” Monroe H. Freedman.  (In addition to How Can You Represent, Professor Freedman and I co-authored a legal ethics treatise, Understanding Lawyers’ Ethics.  We also co-taught a course on Lawyers’ Ethics for 5 years at Georgetown.)  It was Professor Freedman’s idea to publish a book that collected the best, most thoughtful writing on criminal defense.  I solicited most of the contributors (it is a collection of 15 essays by 16 contributing authors), and did the lion’s share of editing. Both Professor Freedman and I also contributed our own essays.

What was the biggest fear that you had to learn to overcome in becoming an effective advocate? 

The fear of being imperfect.

After years of defending indigent clients and seeing the tough side of this business how do you continue to motivate, energize and inspire new lawyers about criminal defense? 

Criminal defense is a “calling” for me.  For whatever reason, I still feel passionate about it.  The work matters.  The people who get caught up in the system need people who are able and who care.  Whatever it takes to be a lifelong defender, I seem to be well-suited to the task.

Of the women criminal defense attorneys that you know and admire, what made them stand out to you? What skills or qualities did they have as advocates that resonated with you?

I have been very lucky to have worked with or otherwise known some amazing women defenders: Katie Roraback, the women’s rights and criminal defense lawyer from Connecticut, who represented Black Panther member Ericka Huggins in New Haven in the 1970s; Barbara Babcock, the first director of the Public Defender Service for the District of Columbia (and an intellectual hero of mine, whose writing on criminal defense remains influential); Ellen Greenlee, the first women chief defender of the Defender Association of Philadelphia (and still going strong); Judith Levin, one of my best friends and a talented former New York Legal Aid Society lawyer; Ellen Yaroshefsky, another dear friend and a talented former Seattle public defender; the late Shelley Stark, an amazing career defender from Pittsburgh; Cookie Ridolfi, my classmate and good pal at the Defender Association who went on to direct the Northern California Innocence Project; Robin Steinberg, one of my best friends from law school who runs The Bronx Defenders; Phyllis Subin, my former Defender Association colleague and friend who helped train me; Angela J. Davis, dear friend and the talented former director of PDS.  They are all committed and talented criminal lawyers, feminists, and terrific people.

Best advice you ever received? 

Never choose a course based on the course description; choose it for the teacher.  Never buy the 45; always buy the album.

One thing people who know you don’t know about you? 

I’m afraid I’m an open book.  If only there was a little mystery!

Women Criminal Defense Attorneys: Ellen Brotman’s Zealous Defense of Army General Yields Unprecedented Victory

by Susan Bozorgi on March 19, 2014

Ellen Brotman of Montgomery McCracken has been at the center of a rare case that has captured the world’s attention. Brotman, along with partner Richard Scheff, is defending U.S. Army Brig. General Jeffrey Sinclair in a sexual assault court martial being held in Ft. Bragg, NC.  It has been publicized that this is the highest ranking military officer ever court martialed in this country for sexual assault.

General Sinclair was charged with sexually assaulting an army captain whom he was having an affair with.  The case has received constant media attention since 2012 when the charges were announced.  The case has been a roller coaster ride, with the kind of twists and turns that only a trial battle can produce. Earlier this year, the trial was postponed when the victim lied about her discovery of electronic communication between herself and the General that had never been turned over and was the subject of a motion to dismiss.  Shortly before the trial was scheduled, the lead prosecutor abruptly quit the case.  Just before the trial started, the General entered a plea to lesser charges of having improper adulterous relationships with female officers and possession of pornography, all of which are not civilian crimes but are military crimes. The defense team described the plea as a strategy to focus the trial on the most serious offense of sexual assault that could have subjected the General to life in prison and registration as a sexual offender.

The trial began in early March, and Ellen Brotman delivered a masterful opening statement to an all male jury comprised entirely of higher-ranking two star generals.  It is hard to imagine a more intimidating jury, but Brotman methodically laid out the details of their defense: that General Sinclair was in fact the victim of an infatuated lover who became vindictive when she found out about his sexual flirtations with other women, and angry that he would not leave his wife. Brotman read excerpts from the victim’s journal and identified the specific evidence that supported their defense. That same day the emotional victim took the stand and tried to explain why she continued to have a sexual relationship with the accused after he sexually assaulted her.

The case came to an abrupt halt last week when the Judge, Colonel James Pohl, ruled that there was “undue command influence” over the military’s refusal to consider a plea offer after multiple emails emerged which exposed the Pentagon’s influence over the case. The jury was released but the Judge refused to dismiss the case. However, he did order that the General be offered a plea deal.  Just this Monday, the General entered a plea to a lesser offense and the military dropped the more serious sexual assault charges.  The sentence hearing is ongoing.   The defense and military entered into a plea agreement which includes a “quantum” which is essentially a sealed agreement protecting the General from facing a sentence beyond that agreed to in the quantum.  The Judge will impose a sentence without knowing the quantum and the General will face the lesser of the Judge’s sentence or the quantum. (Don’t you wish we had that option in civilian cases?)

Without question the military’s case began to unravel…but this would not have happened without the dedication and passion that Ellen Brotman and the other members of the defense team brought to this case. They left no stone unturned and explored every possible lead that ultimately exposed fatal flaws in the military’s case. And they did this successfully while working within a system that many criminal lawyers would consider foreign.  Congratulations to Ellen Brotman, Richard Scheff, and the entire trial team, you make us all proud!

Women Criminal Defense Attorneys: More Reason for Optimism About the Future

by Susan Bozorgi on March 12, 2014

Last week was a prime example of how women in this field are increasingly committed to connecting with and supporting each other. A number of inspiring events took place, and I wanted to take a few moments today to tell you about them.

The Women’s White Collar Defense Association held its annual spa day event at the Biltmore in Miami, and close to 170 women attended events surrounding that program, including our local group’s cabana welcome reception, a cocktail reception, dinner, and breakfast. It was a huge success and the energy and excitement in the room was inspiring.  I was so busy enjoying the opportunity to rub shoulders with some of the most successful women in this field, from all over the country, that my photography was lacking but here’s a picture to give you the flavor of the event:

Thereafter, during the ABA White Collar Conference at the Eden Roc, the Women White Collar Subcommittee organized a panel discussion which was moderated by the three chairs of the subcommittee: Nina Marino, Patricia Holmes, and Z Scott.  Excerpts from that discussion were quoted in a Law 360 article. (NOTE: To access the article, you must be a Law 360 subscriber. However, there is a 7-day trial which will allow you to read it for free.) Below is a picture of the panel discussion: