Author: Harrison Kakos

Written by Harrison Kakos, Law Clerk at Rockind Law.

As I noted in my last article, of the many different advantages and benefits that clerking with Neil provides, one of the most rewarding among them is the opportunity for observing Neil’s masterful courtroom abilities, especially on cross-examination. Similarly, being able to have insight into the behind-the-scenes components, including brainstorming the best approach, mulling over each and every aspect (along with the litany of different outcomes based on which route is chosen), and even being able to offer my own perspective, is both exciting and is a learning experience unlike any other.

Speaking of which, it is very telling that Neil is willing to entertain and consider the opinions of others. There is no sense in sugarcoating the truth—Neil is not merely one of the best defense attorneys in the area, but more than that, among the very best of the best. It is for this reason that I was so keen on finding some way to work with Rockind Law, and why I am very grateful that I wound up in such a fortunate position.

My fellow clerk, Alex, and I are in our last year of law school. Though we are both strong students and (like to) think of ourselves as fairly intelligent, the truth is that we obviously know far less than Neil when it comes to the law. In spite of this, he is constantly asking for our opinions on various aspects of a case and is willing to listen. So, too, are Rockind Law attorneys Colin Daniels and Noel Erinjeri, both of whom are among the brightest legal minds I know, yet constantly willing to listen to other perspectives or consider another’s viewpoints.

I mention this to underscore that the Rockind Law approach is one which emphasizes the gathering of information. Neil relishes accumulating facts, poring over every detail, and delving into the subtleties. Never will he allow something like pride to get in the way of obtaining information or learning something new.

Neil’s staunch commitment to ensuring that he has all the facts and has also sought the opinions of his colleagues, I have come to realize, is why Rockind Law is so regularly able to achieve such exceptional outcomes. In a recent case, this attention to detail and immersion in facts played a remarkable role in the judge’s ultimate decision to grant our motion and suppress the evidence we were seeking to exclude.

The case was fairly straightforward: our client was stopped by police on a cloudy afternoon, while driving his brother’s van. The officer, a Michigan State Police Trooper, alleged that he observed a defective brake-light along with a failure to signal before merging into another lane. In addition, because it was his brother’s van, our client was unable to provide proof of insurance. Rather than merely issuing a ticket, though, the trooper decided to arrest our client for the infractions. Consequently, because authorities may conduct a search incident to an arrest of a suspect, the trooper searched our client’s person and discovered a handgun. Our client was subsequently charged with Carrying a Concealed Weapon.

Importantly, though, the initial three offenses are all merely civil infractions. As noted in our motion, Michigan law does not allow for arrest of a suspect who has only committed a civil infraction(s):

As noted above, the firearm was discovered only because of the arrest. Since the arrest was illegal, though, any evidence pertaining to the weapon was “fruit of the poisonous tree” and, we argued, ought to be suppressed and excluded.

At the evidentiary hearing on this matter, Neil began by immediately reminding the trooper of his duty to tell the truth. He avoided asking anything else prior to first getting this out of the way. This was a terrific maneuver, as it immediately reminds the judge and others that there is a possibility the trooper was not being honest, as well as simultaneously reminding the trooper himself that he ought to be very cautious with how he answers the upcoming questions.

By ending this way, the Trooper is now committed, he’s locked in to what he’s testified to on direct examination.  In other words, he is cornered.

With this out of the way, Neil segued into asking the trooper about how the interaction with our client began. Earlier, when the prosecutor asked the trooper this, the trooper implied that he essentially first asked about nothing except for whether our client had his license, registration, and insurance.

The trooper’s earlier testimony, after being asked by the prosecutor about the nature of the exchange with our client.

However, Neil knew this was not so. Fortunately, we had obtained a copy of the dash-cam footage. After our office reviewed it, we learned that the trooper’s very first remark was, “What’s up, man? Any weapons in the car? Any narcotics in the car?” Before asking about a single thing else, the trooper apparently had already decided to assume that contraband was likely in the van.

Furthermore, the prosecutor’s response to our motion asserted that our client had been arrested not merely for a civil infraction, but rather a misdemeanor (for which arrest, rather than ticketing, is permissible). The government argued that the offense was clearly a misdemeanor, pointing out that the statute reads:

The prosecutor’s response to our motion asserted that it was for this misdemeanor, rather than a mere civil infraction, that our client had been arrested.

Critically, though, this statute clearly requires that the person operating the vehicle is aware that the vehicle’s owner did not have security (legal jargon for “car insurance”). As a result, Neil focused his questioning on how our client could’ve committed this offense, as it was his brother’s van and there was no evidence indicating he had knowledge that it was not insured.

As the cross-examination continued, Neil pointed out that the trooper (and his partner, who soon arrived) even remarked to one another that they’d been uncertain as to whether they could arrest our client. After admitting this at the hearing, the trooper sought to justify his decisions by also pointing out that our client was observed driving in an area “known for high levels of narcotics activity.” This was a big mistake, as captured by the following exchange:

The trooper’s reliance on the tenuous—and frankly, inappropriate—claim that the area itself was enough to justify the steps he took backfired, as evidenced by Neil’s questions and the trooper’s unsuccessful attempts to justify his decision making.  The questioning also revealed the fallacy in claiming that an “area” is a high crime area – what area? What distance? What houses?  By this standard, a college campus would be a “high crime area”, a tony Manhattan building with millionaire residents “known to party” could be considered a “high crime area” yet no police officer would ever refer to them as such.  This dubious designation is usually reserved for typically poorer communities but when lawyers actually take the time to break this claim down, the house of cards falls in on itself.  Neil revealed it to be what it is – a thinly veiled way to say that areas predominantly lived in by those well-off and mostly inhabited by minorities, working class, etc. families are more prone to crime.  It is a pre-text – a way to justify interdiction on the poor or in poorer areas.  Few lawyers break these claims down as Neil did here, but this is how you do it.

As the hearing continued, Neil got the trooper to admit that his primary goal that afternoon was to search the car. We call this a pretext.  The Trooper made a stop relying on one basis but his real purpose was to get in the car, in other words it was a pretext. This too was revealed in the cross examination.  In light of this, it was apparent to even the judge that the trooper had been seeking any avenue that would have provided him with the opportunity for a search:

Neil then called to the stand our client’s brother, who confirmed that he had granted our client permission to drive the van and, more importantly, had himself been under the impression that his van was insured, had not told our client that it was not insured, and had no reason to believe that our client could have known it was uninsured.

Finally, Neil called the defendant himself, our client to the stand. His testimony confirmed everything that his brother had just testified to moments earlier:

At the conclusion of the hearing, even the prosecutor remarked that he had never seen a pretext stop cross examination done with this level of effectiveness.  The hearing concluded on this note and some time went by. Although we were confident that we should prevail, anyone who practices law or works in the legal field will confirm that it is not until the court issues its ruling that one can finally relax.

The other day, the court did just that. In the written order, the court explained that it ruled in our favor, indicating that it agreed with the arguments we had set forth and using many of the exchanges highlighted above to support its ruling

A motion to suppress is not often granted. Much has been written about the fact that excluding the use of certain evidence imposes “social costs” and brings with it a concern that truly guilty people can go unpunished. Nevertheless, both parties are required to play by the rules and operate fairly. How much more would the costs to society be if police or agents could do whatever they desired without regard for the law.

For this reason, the facts are sometimes such that the court’s only option is to prevent the use of illegally obtained evidence. While many argue that this is a “technicality”, they fail to consider the main point: that a society where only some are expected to follow the law is a lawless society. As the Supreme Court explained in its 1961 ruling in Mapp v. Ohio, the landmark case where It held that prosecutors may not introduce evidence that was obtained by violating the Fourth Amendment: “If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

Indeed, it does. Which is why Rockind Law is staunchly committed to ensuring that the rights of all citizens are safeguarded no matter what. Only by doing so can we ensure our society is a fair, just, and equitable one.

Written by Harrison Kakos, Law Clerk at Rockind Law.

One of the most rewarding advantages of clerking for Neil is the opportunity it provides for gaining first-hand insight into his masterful abilities in the courtroom. To put it simply, observing him in action is a spellbinding and memorable experience. It is particularly captivating to behold his remarkable ability to quickly respond or react to what is elicited during testimony, to make crucial judgment calls in milliseconds, and to somehow always stay multiple steps ahead of everyone else.

With the pandemic forcing courts across the country to conduct hearings by Zoom in place of traditional sessions, the general public has been afforded an opportunity for viewing the workings of the justice system. Lately, I have found myself intrigued by just how taken aback and confused many laypersons, who are employed outside of the legal profession, have been at the tendency of some judges to brashly address courtroom participants or spectators. People express awe, puzzlement, and even anger at the manner in which they’ve recently witnessed judges harshly rebuke a party, find another in contempt, or otherwise demonstrate a troubling degree of immodesty.

In a recent hearing, Neil found himself facing a challenging judge who had no qualms about making clear that the courtroom was his domain and would be governed in a fashion he alone deemed best. The case was already challenging; it was highly complex, with voluminous discovery, a slew of serious counts, and intense media scrutiny. As if this weren’t enough, there was also the fact that a Special Prosecutor was specifically brought in to handle the delicate and noteworthy case.

Before the preliminary examination began, Neil was cognizant of just how crucial the proceeding was. All preliminary exams are, by their nature, significant. They are the equivalent of a “mini-trial” wherein the prosecution must demonstrate probable cause to believe that the offense(s) which the defendant is charged with occurred and were committed by that particular defendant.

Here, with the complex and sensitive nature of the case itself, Neil recognized that every minor detail and attribute of the hearing would have a profound and lasting impact on its trajectory.

The exam was held before a judge and in a courtroom that, up to that point, Neil hadn’t had any prior experience with. Although this meant that there wouldn’t be any concerns over preconceived notions from prior appearances spilling into this matter, it also meant that Neil not only was without the “home court” advantage—which the Special Prosecutor enjoyed— but also would be uncertain of exactly what to expect from the judge. The personality of a judge can range from one extreme to another and anything in between, making the lack of insight here yet another obstacle. Even so, Neil had prepared and was ready to dive into the proceeding.

Not long after starting, it became apparent that the judge had no reservations about speaking his mind. When Neil noticed that the prosecutor was introducing exhibits that had been combined in an unorganized manner, rather than individually separated or at least subjected to a pattern of some sort, he suggested that perhaps she instead distinguish between the individual materials to ensure that the record accurately reflected whatever was specifically introduced. Such suggestions are commonplace and routine. However, the judge nevertheless took issue with it and asserted that the particular manner in which the prosecutor admitted her exhibits was “none of [his] business”:

When Neil had offered this suggestion, he, of course, had not intended to be patronizing or even remotely disrespectful in any manner. With the judge now accusing him of doing so, Neil was unwilling to let such a misconception stand. He therefore firmly expressed that he had not intended any offense whatsoever but ensured that he was nevertheless respectful to the court and maintaining his composure.

Some attorneys are only capable of being collegial and shy away from confrontation, while others are firm and aggressive but unlikely to also be amicable. Neil, though, can oscillate fluidly between both realms; he will always strive to be sincere and cordial first, but most certainly has no qualms about unequivocally standing up for his clients, colleagues, or himself when necessary:

Because Neil was able to maintain civility without compromising his steadfast devotion to the client’s rights, he is able to get his point across without risking needless consequence. In fact, this maneuver even manages to lessen the tension, thereby softening the judge:

Over the next 45 minutes or so, there were multiple instances where the prosecutor sought to admit certain evidence into the record in violation of several different court rules and procedures. However, because Neil possesses a virtually encyclopedic knowledge of the many nuanced court rules, he certainly was not going to pass up legitimate objections with each such occurrence.

Since every objection is an interruption of the exchange between the attorney and witness, and requires the judge’s ruling before proceeding further, this understandably leads to delay. Rather than directing the prosecutor to ensure her approach was consistent with the rules of evidence, though, the judge instead declared that at this rate, they’d need to continue the hearing the following day. He even lamented that it would have to begin at 6:00 a.m. for any feasible hope of concluding:

Without missing a beat, Neil stayed focused and collected. He didn’t debate with the judge or react indignantly. Conversely, Neil matter-of-factly informed the judge about a prior conflict that would preclude him from returning the following day. His measured response left the judge with little else to retort with, other than a questionable pronouncement that his order “is bigger than [the other judge’s] order.”

When the judge continued to travel down this path, though, Neil refused to sit by idly. Not only did he expressly clarify that he did not desire to be difficult, but when the judge continued to complain about the objections, Neil made sure to reveal that he had actually looked past the full extent of objectionable exchanges:

After another witness was called and the prosecutor continued to make one misstep after another, Neil continued to object. He was not going to sacrifice his client’s rights merely to placate the judge:

About 15 minutes later, more violations induced more objections by Neil. In spite of the judge’s clear dissatisfaction with repeated objections, Neil could not, in good conscience, cave in and ignore that which the client was fairly entitled to and deserving of merely to avoid further reprimanding by the judge. When the judge sarcastically suggests Neil has objected to a question as innocuous as a witness’s name, he emphatically denies doing so and makes clear that he resents such a remark:

Not only did Neil categorically emphasize that he took exception to the judge’s comment, but he even underscored that he is simply doing his job. If anything, Neil would have been derelict if he chose to ignore such repeated and excessive violations of the proper procedure.

Later on, Neil cross-examined the detective who had investigated the case. Months earlier, when this detective swore to the accuracy of the criminal complaint (the affidavit composed when initially seeking charges against a person), he had made a significant error and inaccurately overlooked that the document stated that he himself was directly involved in the matter (as a co-defendant), and even featured allegations of the crime occurring in a separate county.

During the cross-exam, Neil called attention to these facts to capture the tunnel vision with which the investigation was led, as well as the inattentiveness of the authorities. The judge quickly characterized this as a mere “clerical error” and complained that Neil had falsely claimed the officer lied. Because Neil had done no such thing, he explicitly rejected the assertion:

In addition, Neil felt enough was enough and now directly indicated that he was sensing a strong bias:

The judge tried to dance around Neil’s candid remarks and implied that Neil’s feelings were somehow hurt. Knowing Neil personally, this assessment was so off-base that it was laughable. Neil is incredibly thick-skinned and perhaps the last person who’d ever get his own feelings hurt, let alone irritated by something so frivolous. He will, however, absolutely refuse to allow the feelings or reputation of a client to be impugned, and he made this clear on the record.

These excerpts captured just one of the many instances where Neil has exhibited a steadfast commitment to our clients and an unyielding resolve for the truth, for what is fair, and for what is just.

These exchanges also capture Neil’s philosophy as it pertains to handling challenging judges. The primary approach should always be one of humility and pleasantness. However, unfortunately, sometimes kindness is mistaken for weakness. When this occurs, it is imperative to stand up for the client and fight back. Neil wouldn’t ever adopt an abrasive stance for no purpose, especially because such a tactic is likely to backfire and harm the client’s prospects. In that same respect, he will never succumb under pressure, nor will he shy away from unreservedly speaking his mind and stating the truth.

When I spoke with Neil about this hearing and his thought process, he explained that he’d much rather get pushed around by the judge and secure a favorable outcome for the client than acquiesce and sacrifice the case. He stressed that when a client’s rights are being so overtly impacted, his sole focus is protecting the client.

Tellingly, this is not only an admirable stance, but an effective one. The remainder of this hearing featured no further remarks or complaints by the judge. The matter was recalled two weeks later as they were unable to conclude on the first day; the second time around, the judge’s demeanor was totally different and far more agreeable. Recognizing that Neil will vigorously advocate on behalf of a client, while still maintaining his respect for the dignity and authority of the court, fostered a sense of admiration that inspired him to appreciate and understand that Neil was, as he had noted that first day, just doing his job, and doing it very well.