Dennis P. Coffey on the war on drugs, law schools, and how overlegislated we are
Published in 2011 Wisconsin Super Lawyers magazine
By Erik Lundegaard on November 14, 2011
Milwaukee criminal defense lawyer Dennis P. Coffey, of Mawicke & Goisman, was born in Racine in 1946, became a lawyer because of his late brother, Bill—for whom the annual William M. Coffey Defender Award is named—and has, in his career, handled more than 400 jury trials. He spoke with us in July.
Q: You’ve been quoted as saying the best victories are the cases nobody knows about—the cases that were resolved without any publicity. Can you talk about any of them now?
A: I can talk in general terms. I had the occasion to represent the president and chief operating officer of a large agricultural company. There were some issues related to some customs violations. In the long run, some people were prosecuted for the customs violations and fortunately my client was not.
The notoriety for any entity doing business is problematic. So if you avoid all that, it obviously accrues to the benefit of the client.
Q: In these types of cases, when do you typically get involved?
A: The earlier the better. If the government has already been down 100 miles of the 200-mile road, stopping the movement is oftentimes hard.
Q: What do you do to keep these matters under the radar?
A: I attempt to educate the clientele before any problem starts, if I can. If I can’t, it’s a matter of sitting down and telling everybody that they have to stop and think, and we have to figure out the right path to follow.
More often than not, people don’t intentionally violate the law. There are individuals who do—I’m the first one to acknowledge—but more often than not, they get into something and they just haven’t thought about all the consequences. So the earlier you can get a clear understanding of the facts, deliver an opinion as to how it can be dealt with, and then establish relationships with the investigating agents and prosecutors, the better.
Q: How often in these types of cases do you already have a relationship with the investigators and/or prosecutors?
A: It is more likely that I would have a relationship with the prosecutor. We’ve dealt with each other. He knows me, I know him. He feels comfortable I’m not going to perpetrate a fraud on him. If I say A, it’s A. It’s easier to build relationships with prosecutors because they’re more likely to be here for a long period of time. Investigative agents get transferred.
Q: You’re a trial lawyer. Aren’t there moments when you want to take a case to trial?
A: Absolutely. But wanting to go to trial is ego. Serving the client, you often have to be egoless.
There are times when it just isn’t possible to work the problem out. That situation arises when the government is 200 miles down that 200-mile road. They’ve already made their choices, they have an indictment, and they’re not going to back down. My first reaction is, “OK, get me 12 people and let’s go.”
Q: You mentioned ego. Anything you do to temper that ego?
A: I don’t sit down and say, “You have to let some of the air out of the balloon today, Coffey.” It’s more a matter of: I know what I’m capable of. Even while negotiating you’re thinking through potential strategies if you end up at the point where you’re going to go to trial.
I think the biggest shortcoming, if you will, of a lot of lawyers is they do things in steps. “OK, today I’m negotiating, tomorrow I’m doing the research, the next day I’m thinking about this, and the next day I’m getting ready for trial.” I think you have to start—at least I start—from the premise that every case is going to go to court.
Q: I’ve also read that you’re a critic of harsh penalties for controlled substances. You began practicing in ’72 and obviously penalties have gotten harsher during your career. Do you see it veering back again toward less-harsh penalties?
A: There are a lot of things about the law where there’s a pendulum effect. We go way right, way left, and we’re rarely sitting in the middle.
And it’s not so much being a harsh critic of the ultimate penalties; it’s more a belief that we’re not really accomplishing anything. You can take 10 street dealers off their corners this afternoon at 3 o’clock, and by 8 o’clock there’s going to be someone to replace them. The fact that you arrest those 10 people is not going to change the use habits of their customers.
But in the long run, do I think it’s going to slide back? Yeah. You look at California, Oregon, Arizona, places where they have now essentially legalized possession of personal-use quantities of marijuana. Well, that’s a step back from the harsh penalties. It’s also irrational. If you’re saying someone can have this much marijuana, they have to have some place to get it. It would be my hunch that the thought process is: We have been putting people in jail or on probation, expending resources, for simple use of marijuana. And putting them in jail doesn’t stop them using marijuana. So why are we wasting this money?
Q: You’re involved in criminal defense, white-collar criminal defense and appellate work. Which do you prefer?
A: If I had to pick: state court criminal cases are more enjoyable in terms of the trial. It’s interaction with a segment of society that is made up of very interesting people.
A: Clients. There aren’t many people who get to sit down and talk, in some cases for several hours, to people who [are charged with] identify theft, robbery, and try to understand how and why. There are just an incredible number of explanations and insights that you can get when talking to a broad spectrum of people.
Q: Any clients stand out for you?
A: There was a lady, very early in my career, before there were people writing about battered wives, who was married to a very abusive man. This was a lady who had been employed at a brewery here in Milwaukee for 15 years. Then the two of them have a fight, she stabs him, he dies, and they prosecute her for first-degree murder.
Getting her to explain her life to me, getting professional people to talk about the psychiatry of her situation, and then pitching all that to a jury—you can’t do that, and do it successfully, without totally understanding the woman: The churchgoer who did everything in her life right and had this one 30-minute span that could’ve totaled her. She was a remarkable lady.
So she’d be one. I have one business guy who religiously sends a Christmas card to thank me for getting him out of his particular predicament.
Q: What was the result of the woman’s case?
A: She was found not guilty. Went home.
Q: And the businessman who sends you cards?
A: He was never charged. This is a person who had immigration issues, he had business issues, he had family issues, and he was not charged despite a lengthy investigation. We were able to successfully establish that what he had done, within the industry in which he was operating, was commonplace, and he should not be singled out.
Q: Do you get a lot of Christmas cards from clients?
A: I get more collect phone calls than I get Christmas cards. [Laughs]
Q: Did you have a mentor?
A: I ended up going to law school principally because of my brother, Bill, who was a criminal defense lawyer in Milwaukee. When I got out of law school I went to work for him. And he and a fairly eclectic group of people gathered as a firm. We had a whole lot of fun.
Q: How much older was he?
A: 14 years.
Q: How many kids in your family?
A: Seven. I was the youngest.
Q: Any other lawyers in the family?
A: Among my siblings, there’s a CPA, a newspaper reporter/columnist, an English professor, Bill is the lawyer, then a doctor, then a teacher, then me.
Q: Impressive family. Any memories of when Bill became interested in the law?
A: Bill went to law school late. If you’d asked my father he would’ve said Bill was never going to college, let alone law school.
A: Bill … was a rebel when he was younger. I’ll leave it at that.
The fall that I started law school happened to be the fall that Father James Groppi led open housing marches in Milwaukee for a number of years; then he became very involved in the mothers’ welfare rights movement in Milwaukee. And he and a bunch of people took over the state Legislature in Madison. Evidently every 40 years somebody’s gonna race into our state Capitol and raise a whole bunch of hell. But Bill and his partner—a man by the name of Jim Shellow—were representing Groppi. So they raced off to Madison to take care of Groppi’s problems, which became significant. Bill was there defending Groppi, I was working for Bill during the summers, and I followed the case all the way through. Ultimately it went to the United States Supreme Court and Bill got to argue it.
Q: An honor.
A: Yes, but it was a real life lesson in how the law operated at every level. You started in law enforcement, you went to the circuit courts, state courts, and then you went to the federal court and you wound up at the Supreme Court. It was a real eye-opener in terms of how it all worked.
Q: Anything about the way your brother practiced his craft that sticks out for you?
A: I think the most important lesson was to be me. He would preach at great lengths about how I could not be him, he could not be me, I had to learn to do it on my own, get comfortable with who I was. He really took a hands-off approach to it all. It was helpful in a lot of ways that there were, at varying times, anywhere between three to five other lawyers that were all associated; and each of them had their own personalities, so you could pick something here, pick something there, see if it worked, see if it didn’t work.
By and large, the most important thing was to understand you had to spend a lot of time, and you had to focus, and you had to be prepared. I tell people on occasion when I talk at seminars: You have to be able to tap dance. Because no matter what it is I plan on doing at 7 o’clock in the morning, by 9:30 someone will have thrown a wrench at me and I have to be able to react to that. And if I’ve learned anything back then it’s the ability to tap dance.
Q: Your brother died young, correct?
A: He died in 1988. He was 54.
Q: There’s a memorial award in his name—bestowed by the Wisconsin Association of Criminal Defense Lawyers. Are you involved in who they choose?
A: I have intentionally not sought participation. The board of directors gives out the award based upon recommendation from members.
Q: You’ve been practicing since ’72: What are some of the biggest changes you’ve seen in the law?
A: [Pause] Boy, I can get myself in a lot of trouble.
Q: Please do.
A: When I started—having a jury trial? It was a once-every-three-week gig. It’s hard to get a jury trial to go at this point. I mean, there are crowded calendars, and there are a lot of cases; but the reality is law enforcement and prosecutors have really gotten their act together in many ways; and the reality is, in a lot of situations, that which they will offer as a resolution to the case, short of trial, is just too good for the client to say no to.
[Sighs] I guess there’s something else I’m troubled by. I think the system isn’t requiring the formality I’m used to. I see people charged with serious felony offenses showing up in court wearing jeans and T-shirts. I don’t get it. So I don’t think there’s an appreciation of the august nature of the system. I think lawyers should spend more time educating their clients—getting them to understand that, really, showing up in a clean shirt and a tie? It may not mean you’re going home, but it may mean you’re going to do better.
I think too many lawyers have too many cases, and they’re not focusing enough on individual clients. It drives me crazy. You and I go into a federal conspiracy case, someone gets indicted along with 27 other people in a drug case, and two days after the arraignment one of the defendants is filing a signed plea agreement. I’m going, “You can’t even have looked at the discovery at that point.” So I don’t think there’s enough attention paid to the craft. We’re licensed, we’re professionals, and I don’t think the system, the clients, or the lawyers themselves get it.
Before I said there’s a pendulum? I hope that one swings back.
Q: Any advice for younger trial lawyers—besides the clean shirt and tie?
A: This is my rant for the week. Kids are coming out of law school owing $120,000. And there are no jobs! I mean, anyone who reads any legal newspaper or magazine [knows this]. I just think that’s wrong. I think law schools owe it to the students to be honest with them about what their prospects are. I’m sorry—people my age? We’re not dying off fast enough so there are jobs for all those replacements.
Q: And the law is one of the few professions where experience and age are prized rather than dismissed.
A: Exactly. It’s amazing to me that there’s this disconnect. The number of people applying to go to law school presently: In most instances they’d be better served finding another area, another field, because I don’t think the economics of the law practice are going to get better in the near future.
Q: Do you think the number of applicants to law school will diminish as this becomes better known?
A: I certainly would think so but there’s no evidence of it. Just yesterday there was an article about how more people are going to graduate school because there are no jobs. You take a deep breath and go: Well, wait a minute. If there are no jobs, what is graduate school going to do for you?
Q: I assume they’re hoping that in the two or three or five years it takes to go to graduate school—
A: The economy will be bustling. That may be the logic but, sitting in an old person’s chair, I go, “Pffft.” Four years from now, I don’t think it’s going to be much better than it is now, at least in terms of the legal world. I hope I’m wrong.
But you ask me what the changes are. I think we are overpopulated by lawyers and we are overlegislated. There are now 50 different titles within the United States criminal code, 23 thousand pages related to law violations; and Title XXI, which is just the drug/controlled substance sections, it’s 130 pages long and has two basic crimes: trafficking and possession.
In Wisconsin, we must have 15 different varieties of battery. Battery is: You hit somebody, you intend to hurt them, and you don’t have their consent. Pretty simple elements. Well, we now have battery to peace officer, battery to fire person, battery to juror, battery to … It’s like every profession has its own battery statute. Which is just crazy. Battery is battery. But every time there’s a news story, a legislator decides, “Oh wait, we don’t have a law that covers that.” Well, you do. A judge sentencing someone who pops a police officer I guarantee you is going to look at that person as more evil than the guy who pops me. And he’s going to build that evil into the sentence. And he’s got more than enough room to do it.
Q: So you don’t need the legislator—
A: So you don’t need me buying these books that keep getting thicker.
Q: You’re a member of a lot of legal organizations and bar associations. Which has been the most helpful to your career?
A: The American Board of Criminal Lawyers. It’s an organization that numbers in the area of 225. I got into it a long time ago, but it’s people from all over the country who basically don’t do anything but criminal defense work. It is more a social organization in terms of the theory behind it.
We get together three times a year. We have, in essence, a roundtable discussion, where people can bring up issues about their cases, things they’ve been researching, interesting legal developments. Very highly qualified, competent, bright people. We’re all friends. We have a Listserv, so during the week, you got a problem, send it out, say, “OK, anyone got any ideas?” and it’s not unusual for me to have 20 to 25 emails a day when somebody’s looking. And I have been fortunate enough, because of that organization, to meet some absolutely incredible trial lawyers.
Q: Anyone stand out?
A: George Walker, who’s from San Francisco. Was in World War II as an aviator. Played center at the University of San Francisco immediately before Bill Russell was there. Just one of the classiest, best-talking people you’ll ever meet in your life. Wise.
I could go on. You know how lawyers get together and tell war stories? You don’t tell war stories with this group. There’s always someone who can top you.
Q: Any war story you’d like to tell us?
A: I don’t know if it’s a war story or not. I tried a case, representing an individual in a state court charged with arson, and beat the state case. Then the feds came back and charged him with the same offense—but because of the different jurisdiction it wasn’t a double jeopardy issue.
In the course of their investigation, an agent from ATF, gave my client a polygraph about the fire and he passed the polygraph. This was before I represented him. Now the general rule is it’s not admissible. Well, I convinced the United States district judge that because the government did the polygraph, and they controlled it, and they were responsible for it, and they must have believed it worked, we should be able to use it for part of the defense case. And the judge said yes!
So I had a trial where my client passed a polygraph, the jury was told he passed a polygraph, and the jury found him guilty. [Laughs] You want to talk about getting kicked in the stomach? It’s the one I always think about. Don’t ever bet on something that’s a sure thing; because it’s not.
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