Across the Aisle
Former prosecutors who switched to defense compare notes
Published in 2020 Ohio Super Lawyers magazine on December 4, 2019
For eight years, Steven R. Adams worked in the Hamilton County Prosecutor’s Office, first handling juvenile felonies, then adult ones. One day, he looked at his paycheck, which amounted to roughly $42,000 a year, and thought: “I’m going to switch sides.” So he hung out his shingle. “Fortunately, it’s worked out quite well for me,” he says. “I mean, I work my tail off. I worked it as a prosecutor, too, but I’d rather work long hours and make more money than $42,000 a year.” Adams is one of five former prosecutors we talked to about their careers on both sides of the aisle.
Helen Mac Murray, partner, Mac Murray & Shuster, New Albany, Ohio; Consumer Law: The [state] attorney general’s office reached out to me with a kind of unique offer. Betty Montgomery, the attorney general, wanted a national reputation in [consumer protection]. Prosecuting international telemarketing fraud would be how we would do it. I’ve wanted to be an attorney since I was 10 years old; it’s the only thing I’ve ever really wanted to do. I have been the one who’s never afraid to get up and talk in front of the class. I’m the daughter of an insurance salesman, you know? I can talk.
Kathleen M. Brinkman, of counsel, Porter Wright Morris & Arthur, Cincinnati; Criminal Defense: White Collar: Thanks to my parents, who were Roosevelt Democrats, I had a very well-developed sense of social justice. One very important way to pursue my passion was as a federal prosecutor. Prosecutors are the most powerful positions in the criminal justice system. That is something I didn’t fully appreciate until I became a prosecutor. The prosecutor decides who gets investigated, what they get investigated for, and how many resources are devoted to the investigation.
Steven R. Adams, Law Offices of Steven R. Adams, Cincinnati; Criminal Defense: DUI/DWI: I grew up in Quincy, Illinois, a small rural town. My father was a county prosecutor. I had a chance to go back to Quincy and take over his practice. When you’re in private practice in a place like that, you’re kind of a jack-of-all-trades. I said, “Dad, I want to be a trial attorney. I want to try cases.” He says, “Well, the best thing you can do is go to a bigger city and try to get into the prosecutor’s office. You’re going to learn rules of evidence, how to be comfortable in a courtroom, how to try cases.”
Alvin E. Mathews Jr., partner, James E. Arnold & Associates, Columbus; Professional Liability: Defense: I grew up in Dayton, and when I started at the Montgomery County Prosecutor’s Office after law school, it was going back home. When you start out in the private sector, you’re oftentimes limited in what you can do because you don’t have a lot of experience. The prosecutor’s office starts you out in the juvenile division. I got hands-on court experience right off the bat.
Winston E. Miller, member, Frost Brown Todd, Louisville, Kentucky; Civil Litigation: Defense: I was hired as a part of the Department of Justice honors program. I was told that 1970 was the first year the department had ever interviewed at land-grant institutions. Previous to that, it had been almost exclusively an Ivy League process.
Mathews: Within six months of getting my license, I was doing juvenile-delinquency trials involving serious felonies. It’s disappointing to see people in my hometown committing crimes. Many of those crimes were tied to the scourge of drugs, probably similar to what we’re going through now with the opioid crisis.
Brinkman: An early case I tried was a bank robbery. The M.O. of the bank robber was unique: When he entered a bank, he vaulted over the teller counter to collect the money. His nickname was Grasshopper. The person we were trying was the getaway driver, who did not have a criminal record. We tried this case in federal court and it resulted in a hung jury. Then there was a second hung jury. We tried it the third time with a different judge, and he was convicted. He was a rather sympathetic defendant, not having a prior record and being young.
Mac Murray: People would get phone calls from bad guys, and they would be victimized. They would end up on what’s called a “sucker list.” A lot of [the victims] were seniors with memory and health issues—they kept falling for the scams. We had an elderly woman who we found out was being cheated. We then had another elderly woman—one of our employees—answer the phone. We’d try to set these guys up and draw them to Ohio or get banking information. This group out of New York kept calling in about selling coins. We lured them to Ohio and they were going to take this woman’s collection, give her nothing for it. We had our employee go up there and pretend to be the woman living there. Once the crime occurred, the New York Attorney General’s Office did a massive search warrant in New York City and picked up all the people in the call centers. Shut the whole thing down. That was probably one of our flashiest ones. Every time we would go in with a search warrant on one of these—we used to call them “boiler rooms”—we always found guns, we always found drugs. These were not good people.
Adams: My very first prosecutor trial happened to be a public-indecency case, and the defense had an expert witness. I’m like, “What the heck? Expert witness?” I’m brand-new. I got my big book out. I had some questions planned—they’re all in this big book—and I ended up winning. The jury at the end said, “We were really impressed with your preparation”—I really did prepare—”we saw you with that big book up there and you were cross-examining the expert, you did a really good job.” The truth of the matter is, I went to a conference in Chicago on prosecuting cases, I studied the information [in the book] and prevailed.
Mathews: The Ohio Attorney General’s Office placed me in a criminal law section, which handles Medicaid fraud, perpetrated by health care professionals when they overbill the Medicaid system, and prosecutes patient-abuse cases wherein health care workers abuse nursing-home patients. Pharmacies would bill for brand-name drugs when they were actually dispensing generic drugs. To prove criminal intent, you had to show a significant frequency, as opposed to occasional mistakes in billing.
Brinkman: I prosecuted a builder who operated out of Northern Kentucky named Bill Erpenbeck. The scheme occurred in a family-run construction company that built single-family homes and condos. He had construction loans from major banks in Cincinnati, and the banks took a secured interest in the condos or the single-family homes. He had cash-flow problems. His representative would tell people at the closings that she would hand-carry the check payable to the construction lender and pay off that property’s loan and save interest by doing it immediately—rather than having someone else mail it. Instead, she brought the checks back to the builder’s offices, they fraudulently endorsed them and deposited them into the company’s own account. It accumulated to a fraud of about $33 million.
Miller: I really never intended to make the Department of Justice a career. I went for the experience of living in Washington, D.C., and having the opportunity to represent the government and travel to all parts of the United States. Once I had done that for a fairly substantial period, it was time to return to my home state. Here in Louisville, Kentucky, you’re on a first-name basis with the mayor.
Brinkman: I was satisfied with what I had accomplished. My husband and I loved to travel. My retirement only lasted two years. I was approached by the Porter Wright law firm about coming to do white-collar defense. I live two blocks from the Porter Wright office in downtown Cincinnati. I thought, “Well, you know, they told me I could be flexible in my hours. I’m kind of bored.” So I went back to work.
Mac Murray: The attorney general I worked for [Montgomery], who actually is now my law partner, was coming to the end of her second term. Because my position was a political appointment, and at the time I was the primary breadwinner for my family, I knew I had to leave soon. One [firm] was going to allow me to do consumer protection on the defense side. I went with a firm that understood that, being respectful of [government] lawyers and truly knowing the law, I would be able to get much better results for my clients.
Adams: There was a misdemeanor DUI case where I went to the [state] Supreme Court back in 2013. The court ruled the defendant can raise a specific challenge to a breath-test result, which, prior to that, was not the law. Supreme Court ruled 7-0 in my favor. It morphed into a new law in Ohio for DUI defense attorneys to challenge evidence toward breath-testing without getting shut down by trial court—the state couldn’t just routinely object and let the judge sustain it. My first trial case [after that] was an aggravated vehicular homicide about a year or so later. My client killed a 2-year-old and blew a .10 or .11. Because of that case, I was allowed to introduce expert testimony saying the breath-test result was not accurate. And there was a hung jury. Inevitably, that particular case was dismissed. They did find her guilty of the reckless homicide, but that did not carry near as much prison time.
Miller: In 1977, there was a terrible disaster here in Kentucky—a fire in a place that was referred to as the Beverly Hills Supper Club—in which 165 people were killed and others were seriously injured. We had one of the worst mass-disaster pieces of litigation and it involved almost all lawyers in the state of Kentucky in one fashion or another because there were so many people sued. Some of us developed expertise in dealing with fire litigation on a large scale.
Brinkman: I helped obtain $24 million in restitution for 143,000 victims of a defendant who ran a company that sold a product through a character on TV called Smilin’ Bob. The product was a male-sexual-enhancement, over-the-counter product. The guy’s name was Steve Warshak. The business he ran was Berkeley Premium Nutraceuticals and the product was Enzyte. The complaint of the victims was not that Enzyte didn’t work—it was that when you signed to get a free introductory supply, they took your credit card and charged you for the shipping. But then they wouldn’t cancel the automatic renewals. A lot of these people ran up charges on their credit cards for hundreds of dollars. It was the same time that Bernie Madoff was going on, so there was a lot of interest in how the government could gather money from criminal defendants and get it back to victims as restitution.
Adams: A lot of my colleagues said, “Adams, you’re such an aggressive prosecutor, how can you represent these people? You’re just going to plead them out and get your fee and run.” I said, “You don’t know me very well.” My aggressiveness in trying the cases kind of ruffled some feathers. There were a few years where it was a little topsy-turvy with relationships with former colleagues of mine who I happened to think were friends. A lot of people who know me said, “Yeah, man, Adams’ personality as a prosecutor was aggressive, and that hasn’t changed.”
Brinkman: I’d done [prosecution] for 24 years. Now, the only power that I had in representing the target of the investigation was to tell the prosecutor, “I understand your position that you think my client has committed a crime, but we’re going to try it, we’ll go to court.”
Mathews: I never intended to be a career prosecutor. I was able to take what I learned in the public sector [about] how to try cases and transfer that into working in law firms and doing civil litigation. Being a prosecutor prepares you to be a good lawyer. It teaches you, obviously, how to relate to people. You’re dealing with a lot of witnesses, and you have to interview them and learn how to ask the right questions. It teaches you judgment. It teaches you a sense of fairness.
Mac Murray: It was the best job I ever had. I make more money now and have a nice job and a nicer office. But nothing compares to that job.