John Kerry: Lapsed lawyer of little legal luster
I began doing the research for this post on the assumption that John Kerry and I have something in common that we are both experienced trial lawyers.
I ended that research having concluded that John Kerry's claims to be an accomplished trial lawyer and top prosecutor are almost certainly more overstated than his claims to have been a great war hero and that for at least the past eight years and probably longer, he'd have been committing a crime himself if he'd actually tried to represent any client in any court.
I. Kerry's campaign rhetoric: "Top prosecutor"
will be tough on crime, but fight for rights
A Google search on John Kerry's campaign website for the word "prosecutor" returns sixty-three hits. For example, from his official biography page:
Later, John Kerry accepted another tour of duty to serve in America's communities. After graduating from Boston College Law School in 1976, John Kerry went to work as a top prosecutor in Middlesex County, Massachusetts. He took on organized crime and put behind bars "one of the state's most notorious gangsters, the number two organized crime figure in New England." He fought for victims' rights and created programs for rape counseling.
From his webpage on civil rights:
As a former prosecutor, John Kerry also knows the importance of strong law enforcement and a judicial system that upholds the hard-won rights of all Americans....
As a former prosecutor, John Kerry knows that racial profiling is nothing more than ineffective law enforcement and must be prohibited.
On his metropolitan agenda webpage:
As a former prosecutor, John Kerry is committed to vigorous prosecution and punishment of violent criminals.
From his "Women for Kerry-Edwards" webpage:
As a prosecutor, his first conviction of a felon put a rapist behind bars ....
On his "Lawyers for Kerry-Edwards" page:
John Kerry has always been tough on crime. As a prosecutor for one of America's largest counties, he prosecuted a murderer, a rapist and a mob boss. As an assistant District Attorney, he transformed one of the largest and most active District Attorney's offices in the nation into an efficient crime-fighting organization. He started a white-collar crime unit, a program for fast-tracking violent crimes to trial, and a victim's rights unit that was the first of its kind in Massachusetts and one of the first in the nation.
And from a speech on September 9, 2004, to the National Baptist Convention, as reprinted on his website:
You know, I used to be a prosecutor. I sent criminals to jail for murder and rape for the rest of their lives.
No wonder the Dems thought Kerry would innoculate their party from any "soft on crime/mollycoddling liberals" charges, eh? I'm somewhat surprised that Sen. Kerry hasn't volunteered to personally prosecute Osama bin Laden, when and if he's caught, to bring these credentials into use on foreign policy issues as well.
II. Kerry's law school record, 1973-1976
Noticeably missing from Sen. Kerry's campaign website, however and indeed, from his entry in the West Legal Directory and the public domain generally are any details about his law school record, other than that he graduated with the standard law degree, a J.D. (Doctor of Jurisprudence despite its title, not an advanced law degree) in 1976. As I've written before, I don't fault Kerry for having attended Boston College, which is a fine law school, albeit one that lacks the national prominence of its local rival Harvard or Kerry's undergraduate institution, Yale. Wisconsin Law Professor and blogger Ann Althouse has speculated that, given that he was "a law school applicant with extraordinary plus factors, the money to go to any school he wanted, and a history of choosing elite, prestige institutions," Kerry's attendance at Boston College Law School
raises the inference for reasons detailed in my earlier posts that his undergraduate record and his LSAT weren't very good, which is evidence that he isn't as smart as he's been made out to be.
I've not been able to find any references to Kerry's test scores or grades, either as an undergraduate or as a law student, but we can reasonably infer from the absence of any "cum laude"-type designations or other listings of academic honors that whatever his class rank was, he wasn't at or very near the top at either Yale College or Boston College Law School. Michael Kranish et al.'s John F. Kerry: The Complete Biography By The Boston Globe Reporters Who Know Him Best reports (at page 166) that in his third year of law school, Kerry did serve as an "outstanding member" on his school's national moot court team. Certainly participation in moot court competition (like Kerry's participation in Yale's debate team) can be valuable and practical training for a lawyer-to-be; while a legitimate résumé credential, however, it is not an academic honor, as would have been selection to the Order of the Coif (a ceremonial organization) or the Boston College Law Review (or perhaps one of the other student-run scholarly journals at that school).
From the date of Sen. Kerry's admission to the Massachusetts bar December 29, 1976 we can infer that he probably took the summer bar exam after his graduation and passed it on his first attempt. (The current overall pass rate for that exam is 72 percent; although I can't find data for 1976, if it's like most states' bar exams, the pass rate then was probably higher.)
On the whole, however, Sen. Kerry's undergraduate and law school academic record cannot help but remind me of the old joke from a slightly different context: Q: D'ya know what they call the guy who finishes last in his class at medical school? A: "Doctor!" (The legal equivalent of the joke has the answer as "Your Honor!")
III. Kerry's track record as a prosecutor, 1977-1979
Certainly Sen. Kerry's website gives the impression that he spent years and years of fighting for victims' rights and locking away the badguys. That's true if by "years and years" you mean some number less than three. Kerry was a licensed practitioner and prosecutor from December 29, 1976, through sometime in the early spring of 1979.
I suppose you could count the months Kerry spent while working in the prosecutor's office after graduation and before his bar results came in. You might even count the months he as a "student prosecutor" while still a third-year law student at Boston College Law School. According to the Kranish biography (at page 167), while still in school, Kerry
handled minor cases before juries of six, winning all of the twenty-five to thirty cases he prosecuted.... "I'm glad to say I never lost a case in Middlesex [County]," Kerry said.
Wow, that's an impressive conviction rate, isn't it? Certainly it is! At least until you consider that they were, by definition, minor misdemeanors probably traffic tickets, maybe littering in which the defendants most likely didn't have lawyers.
Well, so he at least must have wracked up the trials once he got his license and became a "real" prosecutor, didn't he? Says the Boston Globe:
After joining the staff of aging District Attorney John J. Droney, Kerry moved with Julia to Newton, nearer the East Cambridge office. On New Year's Eve 1976, the couple's second daughter, Vanessa, was born. Less than a month later, Droney promoted Kerry to the position of first assistant, giving him free rein to overhaul the office.
Droney veterans were stunned. Many of his assistants were resentful.
Having been promoted to an administrative position within a month of receiving his license, it seems clear that Kerry wasn't ever a front-line in-the-trenches prosecutor. Older than average among the other rookies just out of law school, he did already have demonstrated skills before the TV camera so much so, reports Jeffrey Toobin, writing in a May 2004 article in the New Yorker, that the new prosecutor was quickly dubbed "Live-Shot Kerry." Kerry became the right-hand man for Droney, an ailing district attorney whom Kerry longed to succeed in office, but who essentially booted Kerry soon after winning re-election in November 1978.
So how many felony cases did Kerry actually try to a jury? Kerry's website claims that he "he prosecuted a murderer, a rapist and a mob boss," but I've only been able to confirm the first two.
Toobin describes Kerry winning a rape conviction against one George Edgerly, who was also convicted of murder and fraud by other prosecutors in different trials. And WaPo's Dale Russakoff reported in a January 25, 2004, article that Kerry won a murder conviction against "one Dana Monsen, who had stabbed a man to death for impregnating a friend's wife." Russakoff reports that Mr. Monsen is still in prison, and Toobin reports that Mr. Edgerly is as well, so Sen. Kerry's current claim that as a prosecutor, he "sent criminals to jail for murder and rape for the rest of their lives" may be technically accurate two being, after all, a plural number of criminals depending perhaps on how long these two men survive. (Mr. Edgerly, however, was actually sentenced not to life imprisonment, but to "eighteen to thirty years" for the rape, according to Toobin.)
But as for the current claim that Sen. Kerry "took on organized crime and put behind bars 'one of the state's most notorious gangsters, the number two organized crime figure in New England,'" the Kranish biography tells us (at pp. 174-75):
Another exaggerated claim involved the notorious Somerville pinball extortion case. A 1982 campaign announcement claimed Kerry prosecuted the case. Although Kerry did directly oversee the investigation, coaxed reluctant witnesses to testify, and introduced evidence to the grand jury, it was [J. William] Codinha, an assistant DA not Kerry who tried the case. (The same announcement also described Winter as "the number two organized crime boss in New England," though [defendant Howie] Winter[, whom the Kranish book (at page 169) says was "convicted in a scheme to force local businesses to install in their clubs pinball machines owned by a gang associate,"] "was not even 'Number Two' in Greater Boston, much less in New England," the Boston Globe reported.)
Boy, I'll bet that severe crimp in their pinball machine racket brought organized crime in Boston and Greater New England to its knees!
So what did Kerry do during his stint as a prosecutor? Per Toobin:
Kerry reached all the way to Washington in order to overhaul the office and, most dramatically, its budget. Under President Carter, the Justice Department was making grants to local prosecutors, and Kerry proved adept at tapping into those funds. "We hired a full-time grant writer, and I got more federal money than any other office in the country," Kerry told me. With the money a reported $3.8 million he initiated a raft of new programs: a priority prosecution program that sought to bring violent offenders to trial in less than ninety days; an organized-crime task force; an arson task force.
And according to WaPo's Russakoff:
In two years, the office grew from 27 part-time to 90 full-time prosecutors. More than half of Kerry's new hires were women, and many were young idealists who turned to law as a force for changing government after Watergate.
Of course, one can spin this as needed progress, or one can spin this as bureaucratic bloat; and the truth is probably somewhere in the middle. How much of what Kerry's said about his effectiveness and efficiency is spin? The Boston Globe reports:
Kerry's selective account of his achievements in the East Cambridge courthouse, however, exaggerates some accomplishments and omits the excesses of what became a polarized office under his leadership.
"The office was divided," said George E. Murphy, who served as an assistant DA in Middlesex for 20 years and now has his own practice. "There were Kerry people, and there were Droney people."
In listing his accomplishments, Kerry greatly inflates the reduction in the backlog of cases on his watch, an achievement that he has described in more grandiose terms over time.
These days, he often says he wiped out an inventory of 12,000 criminal cases. That's up from a claim in a 1984 Kerry campaign biography of a cut to 228 from 11,000 in 18 months. But in a May 1979 interview with The Sun, Kerry said he engineered a drop to 228 from 3,000 before the backup climbed to about 500. A 1978 Droney reelection advertisement, which Kerry helped write, said the dropoff was from 4,523 cases to 716.
State records for the period show a sharp dropoff in the criminal caseload of every county of the state, led by Middlesex, which was helped by a $250,000 federal grant. The precise figure could not be determined from official reports, however. But they show the entire superior court caseload, including backlog, never exceeded 7,265 during Kerry's tenure.
Kerry said he isn't sure where his figures came from but recalled a concerted effort to clean up a mess. "We adjudicated a number of them, we had to dismiss a whole bunch for lack of evidence, lack of witnesses, people had moved or didn't want to testify," he said. "We went through every case."
Gotta love that royal "we," doncha? "We" mowed through the cases just like "we" mowed down the VC in Vietnam, I guess.
IV. Kerry's private practice, 1979-1982
Of Kerry's brief tenure in private practice from early 1979, after he left Droney's office, until his election as Michael Dukakis' lieutenant governor in November 1982, Russakoff of WaPo writes:
Kerry & Sragow, the partnership he established with one of his star prosecutors, Roanne Sragow, later a girlfriend, was an instant success, drawing malpractice, personal injury and wrongful death clients to a tony State Street office. A decade had passed since the antiwar veteran had riveted the nation with his testimony before the Senate Foreign Relations Committee.
The questions Kerry grappled with as a lawyer hardly seemed as grand. In one of its more lucrative periods, Kerry & Sragow was representing bald men who had suffered grotesquely unsuccessful hair implants. Lead plaintiff Charles DiPerri, then maitre d' at the exclusive Brookline Country Club, still remembers Kerry holding up color photographs of an oozing sore in DiPerri's scalp and demanding of the jury in an oddly familiar cadence "How do you ask a man to work with the public with his scalp in this horrendous condition?" DiPerri was awarded $90,000 in damages.
This does at least explain the Kerry-Edwards ticket's insistence that it has the "best hair," I suppose.
Although he describes at length one high-profile criminal case that Kerry and Sragow undertook to exonerate a man wrongly convicted of murder, Toobin and Kerry make clear that she carried the bulk of that work:
Roanne was the court-appointed attorney, and I was the helper, Kerry said. She did the lions share of the work, but that case taught me a lot.
And Toobin dispels any notion that while in private practice, Kerry was able to use his famous ability to see "nuance" and "principle" to fight for the rights of those on the sharp end of the criminal justice system's stick:
Kerrys background as a prosecutor made criminal work unappealing to him. "I took a court appointment once in a criminal case, and I realized I just didnt want the guy out on the street," Kerry told me. "I knew he was guilty. It takes a certain kind of makeup as a lawyer to dedicate yourself to having someone like that out on the street. I know our system says someone has to represent everyone, but I just couldnt do it. I went to the court and asked them to take me off the case."
To some conservatives, that may seem like a bully good position to take. To most liberals, and to anyone who believes in the basic premises of the adversary system and I'd include myself in that second category, having represented, on a pro bono basis, a capital murder defendant through two Fifth Circuit appeals and an intervening habeas trial in federal district court, and having overseen for several years a large Houston law firm's pro bono criminal appellate appointments program it's hardly a noble position. Even the one criminal matter on which he assisted Sragow had a selfish political motivation for lawyer Kerry:
The timing of the Reissfelder case was propitious for Kerry. By the summer of 1982, he was running in a Democratic primary for lieutenant governor of Massachusetts, and his efforts on behalf of the wronged inmate were drawing attention in the local press.
I've found no reference to lawyer Kerry ever performing any pro bono work an ethical obligation of every lawyer, at least in theory. Perhaps he did so, quietly. Or perhaps he viewed such work in much the same way that he's later viewed out-of-pocket charitable contributions:
In 1995, Kerry reportedly had a taxable income of $126,179, and made charitable contributions of $0. In 1994, he gave $2,039 to charity. In 1993, the figure was $175. In 1992, it was $820, and in 1991, it was $0.
Nor was there a shortage of high-profile pro bono work for Boston lawyers in 1979-1982. Kerry could have volunteered for all sorts of civil rights litigation, for instance. But rather than take on a politically risky cause like school busing and desegregation (a topic that Kerry's ex-brother-in-law and lifelong friend David Thorne recalls Kerry informally debating with Dubya back at Yale, according to page 40 of the Kranish book, and that continued to simmer for many years after its famous 1974 crisis in Boston), it appears that Kerry was satisfied with his existing civil rights credentials (which, as best I can tell from the Kranish book, at pp. 27-28, consisted of having been friends with the only black teacher, and delivering a since-lost speech entitled "The Plight of the Negro," at St. Paul's prep school, pre-Yale).
Finally, what enduring precedential contributions did John Kerry leave in the law of Massachusetts from his practice there from 1977 to 1982, either as a prosecutor or a lawyer in private practice? A Lexis-Nexis search of all reported Massachusetts civil and criminal appeals (in a database going back at least through 1972, well before his bar admission) does not find his name among counsel of record on even a single appellate decision.
V. Kerry from 1983 forward
It's now clear enough to me that unlike his running mate, John Kerry has never been much of a trial lawyer; rather, he's always been a prominent member of the subspecies Lawyerus Politico. That's well and good, I suppose except for the fact that he's trying to use his awfully thin credentials as a prosecutor as a basis for his Presidential campaign.
The natural reaction that Sen. Kerry's supporters will likely have to this post will be to argue George W. Bush's pre-political credentials. I've written before, at my usual tedious length, about why I'm personally glad that Dubya didn't get into Texas Law School and went instead for a Harvard MBA after finishing up his TANG service. If you're less impressed than I am with how that MBA and his business experience helped prepare him for his current job, you're welcome to that opinion, of course; Bush should be, and is, running for re-election largely on the basis of how he's done as President, not what he did in 1968-1971 or 1976-1979.
Fairly viewed, of course, John Kerry isn't a career lawyer, but a career politician. And he's running for the top position in the nation's Executive Branch, not for a seat in its Judicial Branch. Even though in his career in the U.S. Senate he's been noted more for quasi-prosecutorial investigations than nuts-and-bolts lawmaking, he hasn't, strictly speaking, been engaged in the active practice of law since 1983. That no doubt explains why Sen. Kerry's membership in the bar of the Commonwealth of Massachusetts is currently on "inactive status." When I phoned the Massachusetts Board of Bar Overseers today, I was advised that Sen. Kerry's inactive status goes back at least as far as 1996; how much earlier than that, their computerized records would not readily reveal.
So strictly speaking, John Kerry is today a law school graduate, but not a lawyer with an active license to practice in Massachusetts or any other state. While he could presumably return to active status by filing the appropriate paperwork and paying required fees, nevertheless, as of today, John Kerry would be committing a crime under Massachusetts law were he attempt to appear in court there on behalf of a client.
Of course, the senior senator from Massachusetts, Edward M. Kennedy, is also a career politician and has been a nonpracticing lawyer for many years (having been admitted to the Massachusetts bar in December 1959 and serving only a short time as an assistant district attorney in Suffolk County in 1961 before going into the Senate in 1962). And yet, Sen. Kennedy has seen fit not only to maintain the active status of his license to practice law in his native state, but has qualified for, and maintained his membership in, the District of Columbia bar.
I do not suggest that Sen. Kerry has engaged, or is engaging, in the illegal unauthorized practice of law. But my readers can decide for themselves whether, as a matter of political ethics, it would be appropriate for Sen. Kerry to perhaps footnote all those "prosecutor" references on his website to mention, and likewise reveal in all his speeches, that his law license is and has long been "inactive."
And likewise, I leave it to my readers to draw their own conclusions as to whether Sen. Kerry has a sound basis for claiming that his past law practice as a prosecutor and a private lawyer has fitted him to be President.
But just speaking as one crusty old trial lawyer I'm decidedly unimpressed. I'd pay a small ransom heck, I'd pay his back bar dues! for the chance to square off against lawyer Kerry on either side of any case in any courtroom, any time and anywhere.
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A footnote: Pondering Sen. Kerry's inactive law license, I can't help but think of Thomas M. Griffith the current general counsel of Brigham Young University and one of President Bush's stalled nominees to the U.S. Court of Appeals for the Ninth Circuit. Mr. Griffith's appointment faces strong Democratic opposition in part because he failed to catch a dues-paying oversight by his staff that resulted in a temporary lapse in his license to practice law in the District of Columbia a lapse that apparently has been remedied retroactively as far as the District is concerned, but that has blocked his reciprocal admission to the bar in Utah and may have doomed his chances for confirmation. I'm unacquainted with Mr. Griffith and his qualifications for the bench in general, but I must admit that I was surprised and deeply troubled by this report. I know that my blog's readership includes some former, inactive, and/or nonpracticing lawyers, but I suspect they'd agree with me, and most lawyers of any stripe, that one's bar status is not to be taken lightly.
