Catch & Release
11 April 2015
My fishing mystery is called Catch & Release. Pretty good, huh? But it does imply that the client is going to get out of jail at some point, which means I have to think of a defense, and everything I write is making that more unlikely. She’s very, very guilty. I guess I should mention that the case is about sturgeon poaching and caviar.
On The Good Wife, they never show Alicia having a good time in the law library, and those Good Wife writers know what they’re doing. Nevertheless, here’s my attempt.
Sometimes I go to the law library, pull a book off the shelf at random and read a case on a subject I know nothing about—bankruptcy, probate, trademark. It’s all just people’s lives and troubles, even the corporate stuff. And it’s restful to read with a complete sense of irresponsibility, like a civilian.
I tried to have that attitude as I read the case law on asset forfeiture. I’d never had the DA go after my client’s stuff before because my clients never had any stuff. Even my drug dealers never made money at it. They tended to use as well as sell. Jill knew about forfeiture from representing white collar guys back when she was a lawyer. She’d hated the paper cases, but people who steal a lot of money tend to have a lot of money, and they pay. She’d explained that forfeiture is a civil in rem action. The DA sues your stuff, claiming that you got it by committing a crime. In this case, the defendant was the land and building and all the contents of the A La Russe Market on Greenback Lane, right down to the very last little ball of caviar.
I read United States v. One 107.9 Acre Parcel and People v. Thirty-Two thousand Dollars in United States Currency and One 1958 Plymouth Sedan v. Pennsylvania (The Plymouth won.) It wasn’t exactly research, more like swimming around in a new area of law to see what it was all about. One case led to another, led to another, and I thought I was starting to get a feel for it, but three unbillable hours later, I wasn’t any closer to knowing what to do.
Stop. Think. What’s the problem? What’s the solution? Fresh paper.
I’d recently been to a training where lawyers who never went near a courtroom taught us to think creatively by making a cluster, which was like a list, but instead of writing the problem at the top of the page, you wrote it in the middle. Then you drew a box around the problem and wrote your ideas all around the box.
I made a rectangle in the middle of the page and wrote ASSET FORFEITURE inside it. Nothing happened. Fresh page. Another box, this time a messy three-dimensional cube. I wrote, THE DA IS TAKING MY CLIENT’S STUFF, which didn’t even fit in the box. Again, a blank.
I texted Jill. “Want to cluster about asset forfeiture?”
She texted back, “Cluster?”
“Write ideas. Think outside the box.”
“OK. Call me.”
“In library. Text?”
A long pause. Then a text came through, “8th Amend!”
“Yeah!” I texted back, “cruel/unusual!”
A brief pause and then a text appeared, “Was thinking excessive fines clause.”
“Double-Yeah!” I texted, and then scribbled 8th amend, excessive fines on the paper, outside the box. It looked legit.
“Lis pendens,” texted Jill, “Did DA file?”
I wrote lis pendens on the paper. I had no idea what it meant, but it sounded real property-ish. Which made sense for the claim on the building.
There was a long pause. Then a another text came through, “Not outside box, but statutory authority?”
I wrote statutory authority on the paper. Most of the cases I’d been reading were about drug money, and they cited the Health & Safety code. Another text came through from Jill, “Check around the 180’s, close to the gang stuff.”
I pulled the Penal Code from the library shelf and found the sections on forfeiture. One said that the DA had to prove that the property he was suing had been obtained by criminal profiteering. Another defined criminal profiteering as making a business out of crime, but only certain crimes, and then, ah-ha, a list! I scanned down from Arson and Bribery, past Mayhem and Pimping, all the way to Violation of Securities Laws.
I texted Jill, “You are genius. No fish and game on list. We win.”
She texted back. “Call me. I get what Cross is up to.”
I gathered up my stuff, shelved all the books and left the library, gliding guiltily past the front desk because I owed fines. Outside the afternoon was warm and sunny and windy, puffy clouds off in the distance scudding across the delta. I called Jill as I walked back to the office.
“Cross can’t win the forfeiture,” said Jill, “Not on these charges. And he knows it. He just wants her to file a claim.”
“But I just read a case that says her claim to the property isn’t admissible in the criminal case.”
“Not in the DA’s case in chief. But he can use it to impeach her. He’s trying to box her in.”
I was starting to get it. If Oblonskaya testified that she just worked at the store and did what she was told, the DA could use her claim to the property to prove that she owned the store and knew exactly what was going on.
“Can’t we get the forfeiture case dismissed?” I said.
“Sure. But we have to get in the courtroom door. And the only way in the door is to file that claim.”
I was coming up to the office now, and there was Jill on the front steps, phone in hand. We both hung up.
“Damn!” I said.
“Very clever, Mr. Cross,” said Jill, giving the finger to the general direction of the DA’s office.