TBA Law Blog

Posted by: James Thomas on Jul 1, 2017

Journal Issue Date: Jul 2017

Journal Name: July 2017 - Vol. 53, No. 7

By Joel Cohen | ABA Book Publishing | $29.95 | 288 pages | 2017

Joel Cohen is a distinguished New York lawyer who prosecuted with the Organized Crime & Racketeering Section of the U.S. Attorney’s Office for the Eastern District of New York for several years and then went into privat practice with the firm of Stroock, Stroock & Lavan LLP, where he specializes in white collar criminal defense. He is a frequent contributor to the New York Law Journal, Slate and the Huffington Post on subjects pertaining to criminal law and legal ethics, but he has also published four books of fiction, including Truth Be Veiled: A Justin Steele Murder Case, which addresses a criminal defense lawyer’s sometimes dilemma in dealing with “the truth.”

Broken Scales is the successor to Mr. Cohen’s 2014 work of nonfiction, Blindfolds Off: Judges on How They Decide. Like Blindfolds Off, it consists of unscripted, transcribed interviews between the author and his subjects. In this case, however, the 10 interviewees were players in episodes of injustice, not federal judges. Mr. Cohen leaves it for the reader to decide whether an injustice actually occurred in all instances, although in many instances the case is clear.

The book begins with the interview of a former Louisiana prosecutor racked by guilt for his successful death penalty prosecution of an innocent man in 1984. Fortunately, the defendant was exonerated and freed before what would have been his wrongful execution, but not before he had served 30 years on death row.

Unfortunately, the defendant would die of lung cancer barely more than a year after his release. While there is no clear evidence that the prosecutor did anything “wrong” under the generous standards that govern prosecutorial misconduct in capital cases, the experience shattered him to the point that he turned himself in to the Louisiana bar (which apparently took no action). He subsequently became a strong advocate against the death penalty. The interview concludes with the prosecutor’s statement that it would “finally bring a smile to my face” if the horrible tragedy of the case would somehow contribute to the abolition of the death penalty in the United States.

Another interviewee was a young Egyptian (a Muslim) who falsely confessed to having a “radio transceiver” in his hotel room across from the World Trade Center on 9/11. (A radio transceiver allows surface to air communications with airplanes.) A hotel employee had planted the device in the young man’s room, and an overzealous FBI agent had coerced a false confession out of him. Fortunately, the pilot who was the true owner of the transceiver made a claim for it at the hotel, and injustice was averted.

Other cases include:

  • the story of a Texas man who was “actually innocent” of being a habitual offender, but whom the State of Texas (Ted Cruz in particular) fought to keep in prison on technical, procedural grounds all the way to the Supreme Court;
  • a Connecticut man wrongfully convicted of a brutal murder and subsequently exonerated by DNA evidence;
  • a woman smeared by the Red Scare of the 1950s;
  • a New York prosecutor falsely accused of rape in the Tawana Brawley scandal;
  • a lone hold-out juror (for acquittal) in a high profile murder case;  
  • a former CIA operative who maintains his innocence in the face of having been convicted of violating the espionage Act;
  • an Iranian-born immigration judge who was ordered to recuse herself from cases involving Iranians after she was invited (unsolicited) to a White House “roundtable” for Iranian-American community leaders;
  • and a former Iowa Supreme Court justice who lost a retention election after voting in favor of same-sex marriage under the Iowa Constitution.

Similar to the approach in Blindfolds Off, each chapter contains an overview of the “case” and the transcribed interview itself. As with Blindfolds Off, Mr. Cohen reveals himself to be “a skillful and tenacious, though invariably courteous, interviewer,” as Judge Richard Posner wrote of the earlier work. In many instances, it is obvious that he caught his subjects in unguarded moments, and he invariably extracts something of interest from all of his interviewees.

In his epilogue, Mr. Cohen concludes by expressing the hope that he has added “spark” to a continuing and important conversation about injustice in America. That he has done.

JAMES G. THOMAS joined Neal & Harwell in 1982. Thomas has experience in a broad range of civil and criminal litigation matters, primarily in the federal district and appellate courts. He is admitted to the bars of the United States Supreme Court and the United States Courts of Appeals for the Fourth, Fifth, Sixth, Ninth and Eleventh Circuits. He earned his law degree in 1980 from Vanderbilt University School of Law.