The Road Lawyer (Part 1)
Although this story contains things from the world in which we live, it should be read as a work of fiction. All characters are fictional and not based on any actual living person. The events that take place in this story are entirely the product of my imagination.
Note: I was once a federal prosecutor, and some of my closest friends are still serving in that job. The vast majority of people who serve in law enforcement as prosecutors, investigators, and police officers are some of the most ethical, patriotic, and honorable people you will find. This series is not directed at them. They truly seek justice. But as we all know, as with any profession, there are always a few bad apples who can spoil everyone else’s reputation. This latter group of people are the motivating force for this series of stories. If we could completely excise these individuals from the criminal justice system and make a very public example of them, it could be the first step in fixing the system.
My name is Neil Dalton. I’m a road lawyer.
“What’s a road lawyer,” you ask? Let me take a shot at answering.
Over the past week, I’ve been on the road, meeting with two clients and in court in two different cases. Four clients in four different states. All federal.
I don’t sit in one little pond hacking out my stake with the self-proclaimed big fish lawyers and scrap over the meager offerings; no. I travel. I’m a hired gun, and I work alone; a single gunman if you will, a lone wolf, a solo “practitioner” as they say. I don’t even have a secretary, legal assistant, or a law clerk. Those people cost money, and besides, I don’t need them anyway. I go to court alone, I answer my own phone, I respond to my emails, I write my own briefs, I file my own pleadings.
I think you get the idea.
I only handle federal criminal cases, on the trial and appellate level, meaning my clients are either facing serious charges and the ridiculously long prison time that goes along with that, or they’re already in federal prison somewhere, and I’m trying to get their cases either overturned or sent back for a new trial.
No trial is perfect, and most are rife with errors. When I’m the appellate lawyer my job is to go through the record with a fine-tooth comb and find where the judge made incorrect rulings or, more often, the government screwed up or just plain overreached, the latter of which they do in nearly every single case.
My clients are scattered all over the place, which means I travel a lot. And I hate flying; I hate airlines, airplanes, airports, and the overall negative experience that flying has become in the United States.
You want to know how it got so bad? It wasn’t 9–11. It was the same government I now battle on behalf of my clients letting the airline industry devolve from what was once a competitive market to a de facto monopoly.
American bought out TWA. Then they bought out U.S. Air. U.S. Air had already bought out America West. Delta bought out Northwest. United bought out Continental. You remember those carriers right? TWA. U.S. Air. America West. Northwest. Continental. There was a day when you could find very good deals because a lot of airlines were competing for your business.
Now there are only three domestic carriers: American, Delta, and United. There is no competition. Fares are ridiculously expensive. And the product sucks. And the product sucks because there is no incentive for them to provide a good product.
So I drive from my home in Texas. No matter where the case or client happens to be, I drive. It affords me total control and freedom. It beats the hell out of the monopolies, stupendously overpriced tickets, tiny, concrete seats, cramped interiors, rude staff, shitty, inefficient and decrepit airports, delays on perfectly sunny days for no reason, late takeoffs and landings, lost baggage, intermittent and expensive wireless, and, of course, no-reason, last-minute cancellations.
The government needs to break up this obscene airline monopoly and allow foreign carriers to enter our domestic market. Let the laws of economics work the way they’re supposed to work, and most of our American carriers would be out of business in a very short period of time.
But that would make too much sense; that would actually be good for the consumer.
But I digress.
I just wanted you to know why I drive, sometimes insanely long distances and days behind the wheel. There are many reasons for it really. I can leave when I want, take the route I want, and stop when I want. I get to see this gorgeous country. It’s peaceful and it calms me. I can listen to music or put on an audio book to pass the time.
And, as a military reservist I still get some pretty nice benefits. That opens the possibilities for me out on the road. I can stay on any military base in their lodging when they have openings. That saves me a ton of money. And it’s quiet; no idiots partying until the early hours of the following day. No loud muffler packages on Honda Civics blasting fake muscle car noise.
While on base, I can replenish my food and beverage stores at the commissary, and I can hit the PX if I need clothing, toiletries or pretty much anything else.
And if the small batch in the back of my truck is running low, I’ll hit the “Class Six,” or, as we call it in the sea services, the “package store.” And all these little places on base come with another nice couple of collateral benefits: they’re cheaper than off-base and they don’t charge any sales tax. So as Bill Murray said in Caddyshack, I’ve got that going for me, which is nice.
The fall back are hotels if I can locate a decent one that won’t gouge me for a night’s stay, or even a KOA.
Now don’t knock the KOA; they’ve all got wireless now, and most of the time they’re a hell of a lot cheaper than modern hotels. Sure, if you’re used to swanky hotels, the notion of staying at a KOA is a big shocker, but I’ve been pleasantly surprised by their consistency over the years; the people who run them are nice, and the clientele are respectful of their fellow guests. They’re my kind of people. And waking up and brewing your first cup of steaming hot coffee over a camp stove and sipping it slowly as you watch the sun rise over the Smoky Mountains, the Sierra Nevadas, or the Florida Keys just can’t be done in a hotel room.
My packing plan has been modified over the years through trial and error, and I’ve got it down to near perfection. I don’t wear the lawyer monkey suit unless I’m in court, so two suits, max, usually dark navy and dark gray (the one area where I’m a traditionalist) are hung above the window behind the drivers seat, out of my peripheral vision. If something happens to one of them, it’s easy to find a dry cleaners pretty much anywhere who will do a rush turnaround on it. My other clothes are packed tightly into the one thing I’ve splurged on, a Briggs and Riley travel bag. My files are in document boxes in the back, along with perhaps my most important travel item, a big cooler, into which I stuff food and cold beverages. And I always carry a a good stock of of my current, preferred small-batch; I have some long and arduous days, and nothing takes the edge off like kicking back at the end of one, pouring a few fingers of that amber liquid, and sipping it slowly while watching the sun set into the western horizon.
I’ve come to detest wearing ties. They’re so trite and passé. And in my line of work, they can actually be dangerous at times. I once had a client who was too stupid to realize I was the only friend he had reach across the table in a fit of anger and grab me by the tie and start trying to choke me when I told him something he didn’t want to hear. My old combat training instantaneously engaged from somewhere in the deep recesses of my cerebral cortex, just like the drill instructors warned long ago, and without even thinking about it, I delivered a head butt and vicious right elbow cross to the clients left eye socket. (The bone that forms the elbow, the lower part of the humerus, is the hardest bone in the body, just so you know). The client was out before he hit the floor of the interview room. The guards came scrambling into the room, but it was over already. “Holy shit!” one yelled. The other two stood there jerking their heads back in forth between the unconscious client and me, as if in shock. After all, what do you do when the lawyer knocks out his client?
So it can be a rough line of work at times. It’s definitely not for the faint of heart. The amusing thing about the story is the guy didn’t fire me, and he claimed he couldn’t remember anything that happened after he grabbed me by the tie. “Mr. Dalton, I’m sorry I grabbed you. It won’t happen again. I promise.” He’s actually referred me some pretty good cases since then too. I guess I made an impression.
But anyway, that’s why I don’t wear ties outside the courtroom anymore.
That and the fact that if you can find one these days that doesn’t look like a Salvatore Dali painting, it costs too damn much. I mean, who pays 100 dollars or more for a tie? I mean, hell, you can buy four bottles of good small-batch bourbon for 100 dollars, and the small batch will do so much more for you. No judge ever ruled in my favor, no juror ever voted “Not Guilty,” no opposing lawyer ever conceded something, because I was wearing a sharp-looking tie. I hate ties almost as much as flying. Which come to think of it, is a nice transition to how I got to where I am now.
When I was at DOJ, they always made me wear ties; even when I didn’t have to go to court. That was the first issue I had with them. Why do I need to have a tie on when I am just sitting in my office or working on a case with an agent in his? People who judge others by the clothes they wear are shallow, unintelligent suckers. And as P.T. Barnum once noted, there are a lot of suckers out there.
But that’s another story for another day, and trust me, I’ll get to it eventually.
So what’s an average day like for me out on the road? Let me give you an example. I just got back from a week long trip involving four cases. Two of them are guys already in the federal prison system, convicted at trial when they were represented by someone else. There are all kinds of problems with their trials. In the other two cases, I have been appointed by the court to represent the guys. And although these are federal cases, creating a stereotypical picture in your mind massively dangerous thugs or billion-dollar, Wall Street-proportion types of fraud, that’s almost never the case.
The big G never ceases to amaze me with the things they do that just go beyond the pale. It is this problem more than any other that lead me to switch sides after two decades of being a prosecutor.
Now don’t get me wrong; I’m no Kool-Aid drinking defense hack. I just got sick of the government being a numbers-driven monster that only went after the low-hanging fruit and imprisoning a bunch of people who aren’t dangerous and never did anything to hurt anybody. That’s the ugly reality.
Oh sure, the G goes after the big Enrons and massive fraudsters of the world every once in a while, but for every Bernie Madoff there are probably 100 other people you’ve never heard of who get indicted, get felony convictions, and are in prison because they stole some money using the mail or the internet, their crimes little more than ham-handed thefts that if they had not touched interstate commerce would be almost laughable in state court. But because they mailed something, or sent an email, or made a bank deposit, they now have a federal conviction and are sitting in some federal prison somewhere. At significant tax-payer expense. Or they’ve been released and have a felony record, a modern-day scarlet letter branded essentially to their forehead, making it a constant struggle to even find a job or move on with their lives after they’ve paid their debt to society.
The truly dangerous people who have hurt others, those who remain a threat to society, those who keep offending over and over again, probably deserve such a branding, but most people who get caught up in the criminal justice system don’t; most are first-time offenders.
And of course, this is all just one man’s opinion. But it’s the opinion of someone who has worked in the system for over two decades, nearly all of which was spent as a prosecutor.
And when I hear 99% of folks voice their tough-on-crime-pronouncements — the ones who say, “Well, they shoulda thought about all that before they went out and committed their crimes!” — it’s always from someone who has never been remotely touched by the system; they’ve never been caught doing anything wrong, and they’ve certainly never had someone they love or care about trapped in the steel jaws of the great white shark that is the system, an uncaring, robotic machine that is designed to crush anything in its grasp.
These people don’t have the faintest clue what the hell they’re talking about, and they make the worst possible jurors. (Deep down inside — truth be told — they’re just not very good people either). They’re just lucky enough to have not been swept up in the G’s unquenchable thirst for numbers. So they live in this fantasy land of “Law and Order,” where the bad guys always get caught and convicted, and the innocent defendants always get their charges dismissed or get acquitted by passionate, concerned and engaged juries. The reality is nothing close to that.
Now look, I’m not defending the actions of people who break the law; I’m just saying before I served there, I always thought of the Department of Justice as being the pinnacle of what a prosecutor could aspire to be and the federal criminal system as being the place where the absolute worst of the worst were prosecuted; you know, terrorists, drug cartels, child rapists, organized crime syndicates, Madoff-esque white collar criminals, and such. But unfortunately, I learned that’s just not the way it is.
That’s right y’all. The narrative is all a fraud. Pretty ironic don’t you think?
Once I began to realize this was the reality, I became — how should I describe it? — disillusioned. I left DOJ and spent some time doing some serious soul-searching. I took a sabbatical of sorts and considered giving up the law. I wanted to find a second calling of some kind.
But near the end of this period of ennui, I realized something important; I had spent over two decades honing my craft. Like the Liam Neeson character in Taken, I had a certain set of special skills. And I realized those skills could be put to better use than I had been putting them. Better yet, I had been an insider, and I knew where all the weaknesses and soft spots were. It was time to turn my weapons back on the big G, to keep them honest, to hold their feet to the fire, to keep them from overreaching, and to make sure the system operates the way it was envisioned by the founders.
So that’s what I do now. And I love it.
I relish the chance of confronting injustice, or just plain ridiculous conduct by the government. Like an infectious mass that must be excised in order to sustain the health of the rest of the body, I try my best to expose this garbage when I see it in one of my cases.
Stick with me on this. It ain’t about guilt or innocence all the time; it’s about right and wrong and about making sure the people working for the government uphold their oaths to support and defend the Constitution. Because that’s what I’m doing. Shouldn’t the big shot federal prosecutors and their federal agents who run around wearing American flag lapel pins and holding press conferences do the same?
Take this case I have out of North Carolina for instance. My client is a small businessman with a wife and three kids, and the G has charged him with bank fraud and money laundering arising out of an admittedly crazy-looking financial transaction involving multiple defendants. I honestly don’t think my client possesses the intellectual capacity to have knowingly been part of something criminal, and besides, there is absolutely no motive the government can prove. Yet here he is, indicted and facing his first appearance before the Magistrate Judge.
This story is not all that extraordinary, but simply indicting this guy just wasn’t quite enough for the G; they have seized and frozen all of his business and personal bank accounts. It’s not the seizing and freezing of the business accounts that bothers me; it’s the taking of his personal account that pisses me off. I smell something rotten here. So I am going to rake the prosecutors over the coals when we go on the record.
When I see the two young whippersnapper federal prosecutors at the other table, I size them up and immediately know they are not prepared for what I am about to do. I am going to thoroughly enjoy this.
The judge goes through all the usual steps in a federal arraignment, my guy pleads not guilty to all counts, and the judge starts to wrap up the session, when he asks both sides if there’s anything else. I stand up.
“Yes your honor. I’m making an oral motion pursuant to Luis v. United States that the court order the government to lift the seizure and the freeze on Mr. Kyle’s personal bank account, an account which he has had for twenty-five years. They’ve already seized and frozen every one of his business and corporate accounts, and freezing his personal bank account is just bald-faced overreaching. They have no evidence that any of the funds in that account are traceable to the crimes charged or that any of it was obtained as a result of the crimes charged. In fact, their seizure affidavit and the warrant don’t even mention anything about the money being dirty in any way, that it was used in any way as part of the scheme alleged in the indictment, or that it is in any other way remotely within the proper application of the law regarding seizing personal assets before a finding of guilt.”
The two prosecutors sit up jerkily in their chairs. They’re not used to this. Most defense attorneys just roll over at the arraignment.
I continue. “To make things worse, there’s not one mention of his personal bank account in their indictment, like the allegations regarding the other accounts. Rather than having any good faith belief that Mr. Kyle’s personal account has anything to do with these charges, it actually appears the government has done this to cripple his ability to take care of his family, pay his bills, or prepare a defense in this case. At best, it’s negligent; at worst, it’s governmental misconduct that we intend to investigate.”
As the federal prosecutors twist and frown in their chairs and start flailing around for documents, they start looking back and forth behind them to their investigators who probably drafted all the search and seizure affidavits and warrants, as if they don’t know what’s going on. Frankly, they might not even know what was in their own indictment. That’s another fact; you think a grand jury drafts an indictment? Hell no. The prosecutors draft it.
They trot in an investigator, ask him a few questions. Then they ask the grand jurors to vote to approve the indictment. They have to step out of the room of course when the grand jurors vote because grand jurors’ votes are done in secret. But it usually takes less than a minute. I mean seriously; what are the grand jurors going to do? A federal prosecutor just asked a federal agent if the defendant committed a crime and the agent said yes. People want to trust the government. I mean hell, they’ve grown up watching movies and TV shows about federal prosecutors and federal agents catching really bad guys right? They want to believe the government. They need to believe the government. They have to believe the government. That’s how this all works, you see?
But right now, outside the grand jury room and in open court where a defense attorney is present, they’re completely blindsided by my ambush. They’re in the deep water all of a sudden, and they’re treading like crazy. I don’t think they’ve heard of the case I just mentioned. And this is not good for them.
Meanwhile, the judge takes it all in as if he’s never heard a defense attorney drop such a bomb on the government at an arraignment. He sort of stares at me for a moment, but he quickly recovers, “What case is that? What’s your cite counsel?”
“It just came down in March, your honor; Supreme Court, there’s not a reported citation yet, but I’ve got a courtesy copy for the Court.” I stride up to the bench and hand over the case. I can almost hear the federal boys crapping their pants.
Most judges are bored to tears on a daily basis because it’s almost always the same from the G and the defense. The federal boys as well as the local defense attorneys all know they have to practice before the same judges day in and day out, and they get accustomed to never coming close to pushing back or angering a judge. Because yes, judges hold grudges against lawyers. (Some judges, anyway). But since I’m a road lawyer who never handles many cases in any single court, I don’t suffer from that affliction. I couldn’t care less what magistrate judge what’s his name thinks right now; I don’t even know his name. I love these little moments, and I love catching the G boys completely flat-footed.
When judges actually hear something new for a change, their ears perk up and they get suddenly interested. The good ones. The ones that care about getting it all right. They sit up in their plush, high back chairs and lean over on the bench.
This one looks like he cares. He quickly scans the Supreme Court opinion I submitted, his facial expression finally catching up to what his brain synapses are processing. He’s quick. I think I detect a barely perceptible hint of a smile creasing the corners of his mouth. My judge is now very alert and looking for answers.
“Government. Your response?”
The AUSA closest to me stands nervously, shifting around, his feet kind of tapping the floor. “Uh your honor, can we have a moment to confer with our case agents?”
The judge doesn’t appear thrilled by this.
“Make it quick.”
The G boys all huddle together quickly and try to find an answer. I internally shake my head. I would never have been in this situation when I was over there; I would know whether every “I” in the indictment was dotted and every “T” was crossed. When I was over on their side, I wrote my indictments assuming a defense attorney or judge would be all over each word; I wanted it them to be bulletproof.
For instance, I would know whether we should’ve seized a certain account or not, and if we shouldn’t have, we wouldn’t have done it; not on my watch. I would know whether the Supreme Court of the United States had just issued an opinion that says the government can’t seize a defendant’s assets needed to retain a defendant’s counsel of choice before trial unless the government can prove those assets have been used in conjunction with criminal activity. Apparently, these guys don’t know about this case, which means they don’t know the law right now. No, they went off half-cocked like a bunch of cowboys, or amateurs, which they can’t admit in open court, and now they can’t seem to get their story straight.
A few minutes pass as the tension builds. Finally, one of the prosecutors weighs in. “Ok, your Honor, Agent Walker tells me they have tracked deposits going from the corporate accounts into Mr. Kyle’s personal accounts. That’s the reason for the seizure of his personal account,” offers one of the prosecutors. Nothing more. No facts to address anything I have mentioned. Nothing to rebut my allegations.
The judge looks at me. “Mr. Dalton?”
“How convenient for them your Honor. It’s very nice that government counsel is relying on a proffer of what Agent Walker has said behind the bar just now, unsworn, and I would also note not anywhere in their affidavits, but that is woefully insufficient. And worse, that’ not what Agent Walker says in his seizure affidavit, which is full of conclusory statements without any evidentiary support. I realize the seizure and forfeiture laws generally allow the government to legally steal a defendant’s money before he’s convicted, but if they’re going to do that, the court should at least make them write their affidavits and warrants correctly. Especially after Luis v. United States. I’m actually surprised this was signed off on by the other magistrate judge, because it’s deficient on its face.”
This last statement stops the judge in his tracks. I’m speaking about one of his colleagues on the bench now, the one who signed all the government’s search warrants and financial seizure warrants. This is not something most judges are used to hearing about judges. His eyes narrow. His face reddens a bit.
But he recovers again. “Anything else?”
“Yes your Honor. This personal bank account is Mr. Kyle’s only way to prepare a defense. It’s his only way to pay his bills, legal or otherwise. If the court denies my motion, I have a written one prepared to file upstairs with the District Judge this afternoon, and I will push for an expedited hearing as soon as possible on this issue. The law is very clear. The defense really has no other options.”
The judge seems to weigh the prospect of getting pulled in by the District Judge upstairs — essentially his boss — and questioned about why all the seizure paperwork is so screwed up by the G, and why the other magistrate judge signed off on it, and why this judge denied what is really a very reasonable request and a motion that on the facts and law should be granted.
The judge finally makes his ruling on my request. “I find the government has not met its burden — as articulated in Luis v. United States (he glances at me) — of establishing that the personal bank account is one that should have been seized and frozen. I am ordering the government and the bank to lift the seizure as soon as possible, meaning today.” The judge gives me a look that could kill. He is not pleased, but he will get over it.
“Anything else, Mr. Dalton?”
“No your honor. Thank you.”
I sit back down and we go through the rest of the arraignment procedure, and a trial date is set. My client remains released on his own recognizance.
The G boys all sit shaken and stunned. They don’t know what just happened.
I look back to their bevy of agents sitting on the first row, like they always do. (Don’t they have any other work to do?). And I catch one staring at me. So I turn in my chair and stare back at him. This goes on for a few seconds. I then smile at him as menacingly as I can, nod my head, and he breaks eye contact. Yeah buddy, that’ right. Don’t stare at me.
The judge adjourns the hearing. We pack up our stuff and I walk out of the courthouse with my client. In the parking lot, I speak with him for a few minutes. He seems genuinely happy with the results of the first hearing. But of course, he’s scared to death. He will remain that way until the end of his case, regardless of the outcome. Who wouldn’t be?
“Look John,” I say to him. “This is a long process. This was just the first little battle. And we drew first blood. I’m going to stay on these guys and hound the hell out of them. I’m going to drown them in discovery requests and motions until they want to play ball with us, okay?”
“Yeah. Whatever you say. I trust your judgment.” And that last bit is the thing that sort of refocuses you; here’s a person caught in the steel jaws of a soulless, uncaring, ruthless machine seeking to crush him, telling me that he trusts me. That’s a shot of truth serum that will quickly sober and reorient even the cockiest defense attorney.
The government doesn’t have to worry about this; they don’t have anyone’s life in their hands. They have it easy. It’s all about numbers to them. To them, my client is just another number on a stat board. I never realized how easy I had it when I was on that side.
But me? Every single step I take from this point will be designed to do one thing: Remove my client from the high-powered cross-hairs of the government’s vast arsenal of weapons. It will not be a simple task. It never is.
But having been one of them for so long, I know exactly where all their little Achilles heels are. Every single one of them — the prosecutors, the agents, all their minions — they all have a personal Achilles heel. I know those weaknesses better than even they do. And I’m about to go to work exposing and exploiting them. With a vengeance.
To be continued.