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Ethics: Legal Ethics Forum
Jack Litman 1943-2010
As some may have read in today's New York Times, Jack Litman, one of NYC's best criminal defense lawyers, died yesterday, age 66, after a ten year battle with cancer. The headline for the Times obituary calls him the "lawyer for 'preppy killer' and others." That's understandable, but not the way he should be remembered. He was certainly much more than the "preppy killer's" lawyer, although he would have understood, I think, that the public would most immediately remember him for his defense of Robert Chambers for killing Jennifer Levin in the middle of the night in Central Park behind the Metropolitan Museum of Art.
Nor was Chambers the only case in which he defended a man against charges grounded in violence against women. Others are in the obit. That gave Jack an unfortunate profile as a defense lawyer who specialized in defending abusive men. He assured its staying power when he candidly, if ill-advisedly, told the press during an earlier homicide case against a man for killing a young woman that he found it necessary to "taint" the victim "a little bit." I suspect he regretted that remark, not because it is a strategy foreign to defense lawyers but because it followed him for the rest of his life.
Not in the obit are many other cases Jack had, which do not fit the violence against women pattern. Nor does the obit mention a case that does fit the pattern in its allegation and is worth mentioning here. (I don't fault the obit for the omission. It isn't meant to be a biography.)
Jack defended Oliver Jovanovic who was charged with various sex crimes against a young woman he met on the internet. This was in 1996, before the growth of social dating sites. The tabloids headlined the case (fed by prosecutorial statements mentioned below) with phrases describing Jovanovic as a "Cyber fiend" and similar unhelpful references.
The alleged victim was a Barnard undergraduate at the time. Jovanovic was a doctoral student. The trial judge excluded highly probative defense evidence under the state's rape shield statute, misreading the statute in my view and in the view of the appellate court that reversed the conviction 3-2. Jovanovic was released from prison after serving 20 months and declined various plea offers that would have avoided a new trial and a return to prison. One offer was to plead to a misdemeanor without jail time, obviously the D.A.'s effort to weaken an anticipated federal civil rights claim. (Why that is a legitimate use of state power is another question.)
D.A. Morgenthau eventually dropped the charges and Jovanovic has sued the City based in part on the alleged press statements by prosecutor Linda Fairstein (Jack's opponent in Chambers, too), which Jovanovic claims denied him a fair trail. It is the only section 1983 case I know in which a basis for liability is prosecutorial pre-trial statements, although probably there are others. A district judge refused to dismiss the case (Jovanovic v. City of New York, 2006 U.S. Dist. Lexis 59165)(S.D.N.Y.)). (The judge by the way is a former NYC corporation counsel.) The case has been in discovery and is reportedly scheduled for trial this spring. The opinion quotes the allegedly improper statements, which are quite flagrant and irresponsible.
In Jovanovic, Jack defended an innocent man, though it took an appeal to exonerate him and then by one vote. The state high court declined review.
Jack came to my legal ethics class a few years ago to talk about prosecutorial ethics. What I liked about his presentation, there and otherwise, is that he did not broadly dump on prosecutors, as some defense lawyers do. He respected their role (he had been one, after all). In the stories to the class, he made important distinctions between zealous advocacy, which a prosecutor may and should exhibit, and what he viewed (with dramatic examples) as abuse of power and unethical behavior. Jack showed in his talk to my class the ability to connect through stories that made him so good with juries.
Rare among criminal defense lawyers, Jack was both a very good trial lawyer and a very good appellate lawyer (although he did not argue the Jovanovic appeal). He was intellectual, cerebral, academic (he did teach for a while), seemingly detached and unemotional, but none of that interfered with his ability to talk to and persuade ordinary men and women on a jury.
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