The Storyteller

When Milton Hirsch isn't churning out legal thrillers, he's championing the unjustly imprisoned  

Published in 2008 Florida Super Lawyers — June 2008

Milton Hirsch is telling a story.

A Pakistani garage attendant, knowing the criminal lawyer's history of defending alleged drug dealers, killer-cops and other members of Miami's underbelly, confronted him: "Criminals have more rights than the rest of us!" Hirsch, who as an Innocence Project volunteer helped a convicted rapist who'd spent 22 years behind bars get a DNA test that exonerated him, hated that refrain.

"I said to him, ‘I find [that] people who say that are often criminals themselves. Give me one good reason the police shouldn't take you in for an interrogation.' The attendant sputtered, ‘I'm not a criminal!' I said, ‘If you're really innocent, you have nothing to hide.' He said, ‘You can't do that, because...'

‘Because why?'

‘Because I have rights!'

‘AHA!'"

Hirsch thumps the desk for emphasis, looking pleased.

It's a good story. So good that when you read his legal thriller, The Shadow of Justice, the first fictional work ever published by the American Bar Association, there it is again, with the judge protagonist delivering Hirsch's lines.

Whether art is copying life or vice versa doesn't really matter. In both his callings, defense counselor and nouveau auteur, storytelling plays an integral part. 

Not that his real-life stories need much embellishing. One high-profile case began when a letter turned up at police HQ suggesting that a known Miami drug dealer, Leonardo Mercado, had put out a contract on a street narcotics officer. That afternoon officers, including the target, went to Mercado's house, locked the door, pulled down the shades, and Mercado came out bloody, bruised and dead. The police were indicted. Hirsch, representing the officers, argued that Mercado died from a psychotic reaction to drugs he'd ingested. The officers were acquitted, and Hirsch got to tell the story to Lesley Stahl on 60 Minutes.

A less serious but equally well-known case involved Pedro Guerrero, the former L.A. Dodgers (and briefly St. Louis Cardinals) All-Star who was indicted on narcotics charges. When Hirsch got the case, he learned that the feds had Guerrero making the deal on tape, all the eyewitnesses were undercover agents, Guerrero had emptied his garage to store the drugs—and he'd confessed.

"But other than that, they had nothing," Hirsch deadpans.

After Guerrero scored below average on a Hirsch-ordered IQ test, the attorney devised a defense that amounted to: "Guerrero said and did everything he was accused of, but was too stupid to know what he meant." 

Hirsch laughs, "I must admit it's a humbling experience to stand in front of a jury in closing argument and say that this man—who could pick any lawyer in America and chose me—is too stupid to be held responsible for the consequences of his choices. Made more humbling by the fact that the jury apparently thought, yes, that's clearly correct, and acquitted him."

When the verdict was announced, Guerrero leaned over and whispered to Hirsch, "Did they say not guilty?"

A Hirsch guest spot on The O'Reilly Factor quickly followed in which, unsurprisingly, the host was incredulous and outraged over the successful "too stupid" defense. After the show, Hirsch promised the vituperative O'Reilly, "If you're ever prosecuted, I'll get you an acquittal on the same grounds."

Beyond the one-liners and outrageous-sounding verdict, Hirsch insists there were valid reasons the defense resonated.

"The audiotapes were extremely damning. But what I did—and there's nothing original about this—is I split the transcripts into what the DEA agents said on one side, and what my client said on the other."

The result was one side in which DEA agents weaved elaborate narratives, followed by a question, such as, "We'll call so-and-so and deliver so many kilos on this date for X percentage. Right?" Then, on the other transcript, Guerrero responding "OK," while simultaneously making politically incorrect remarks regarding the restaurant's waitresses. This unfocused response, Hirsch successfully argued, showed a lack of criminal intent.

Hirsch also brought in psychologists who affirmed baseball star Ozzie Smith's testimony regarding 12- and 13-year-old boys in the Dominican Republic who, once identified as big-league prospects, have all their needs attended to, as Guerrero did. "When his career is finally over in his 30s, developmentally he's 14. For the first time in his life, he has to take responsibility for himself. What does he do now?"

He hires Hirsch, that's what he does.

 

Charting his course

A Chicago native who "grew up in the left-field bleachers in Wrigley Field," Hirsch, 55, with his 5-foot-9-inch frame, trimmed gray-speckled beard, affable demeanor and penchant for quips, doesn't seem like the "grisly murder case" type. In fact, working as a CPA for "one of the four major international non-indicted accounting firms," criminal law wasn't on his radar at all, until one day his supervisor, Bob Ras, delicately pointed out, "You're not really cut out for this." Ras advised Hirsch that he'd attended Georgetown University Law Center, and that Hirsch should go there, too—and that he, Ras, would take care of the application process. The next thing Hirsch knew, he was accepted at Georgetown.

 Despite that initial lack of initiative, once he took a course on evidence given by Irving Younger, whom Hirsch calls "the stuff of legend," it made him "want to try cases more than Ray Charles wanted to see."

In his final year, the campus was visited by "one of the most remarkable people I ever met. She wasn't beautiful, but she was very striking." Janet Reno, state attorney for Miami-Dade, was touring major law schools looking for recruits based on what Hirsch calls the "melon method":

 "She squeezed your head, and if it wasn't too mushy, she offered you a job."

Reno found Hirsch's head solid enough to offer him an assistant state attorney position. Too excited to hang around for graduation day, Hirsch promptly loaded all his worldly possessions into his Ford Fiesta—"a telephone booth with wheels"—and drove to Miami.

Suddenly surrounded by "the prettiest girls I'd ever seen," Hirsch says he became proficient in Spanish in a hurry so he could jump into the dating pool.

In less than a year, Hirsch was promoted to assistant chief of narcotics prosecution, which he attributes less to his job performance than to rapid department turnover and burn-out due to the city's prevailing Miami Vice atmosphere of copious drug use.

Hirsch "turned over" quickly as well, staying less than three years. After briefly joining a law firm that was an ill fit, he hung out his own shingle in 1986 and married Ilene Schreer "roughly 20 minutes after I met her" through a colleague's introduction.

One of Hirsch's best-known cases involved a rogue gang of off-duty Hialeah cops who, knowing the dealers had little legal recourse, periodically "visited" their dens, taking the dealers' money, drugs and jewelry. One raid resulted in two dealers being slain execution-style, kneeling down, bullets delivered to the back of their heads. The bullets and casings were found, but the murder weapon went unrecovered. While a couple of cops were convicted in state court, charges against the culprit prosecutors really wanted, Carlos Simón, were dropped for lack of evidence. 

Years later, during a two-bit convenience store stick-up, the thief dropped his gun, and tests showed it to be the weapon used in the execution slayings, owned at that time by one Carlos Simón. Protected by double jeopardy from being tried in state court, Simón was indicted in federal court on the premise that the Hialeah cop's conduct involved federal civil rights violations, including homicide and conspiracy. Simón retained Hirsch.

In what Hirsch characterizes as a "great" trial that other attorneys came far and wide to witness, Hirsch emerged victorious on all but one charge.

"I beat everything but the conspiracy charges," he says proudly, though he's still irritated by the conspiracy conviction that "just requires that you're in town that day."

Hirsch gets impatient when people ask him, "How can you defend someone like that?" because, he notes, we have a "jury decides" system, not a "lawyer decides" one. A greater burden is defending someone he truly believes to be innocent. "If you represent a guilty party, you do your best, and if he's convicted, it's not your fault, it's his. But if he's factually innocent—really innocent—and he's convicted, then it's nobody's fault but mine. God, that's scary."

Still, he admits to occasionally being so appalled by the charges—usually involving sexual misconduct against children—that he's turned down clients because he couldn't commit 100 percent to their defense. "But I'm not proud of that," he adds.

 

Righting wrongs

In 1992 Hirsch got the opportunity to right miscarriages of justice when, shortly after the O.J. Simpson not-guilty verdict, Barry Scheck phoned from New York.

Deluged with requests from lawyers and inmates pleading for DNA tests, Scheck, with Peter J. Neufeld, set up the Innocence Project. Scheck, who knew Hirsch, asked him to handle three Florida appeals, because "Your law there is very weird and different." Sheck told him, "You won't get paid, you'll have to pay your own expenses and invest untold number of hours, and if you do a good job, we'll send you more." In the Showtime documentary After Innocence, which features seven of the Project's (currently) 200 cases in which DNA testing exonerated convicts, Hirsch gets the film's one laugh when he accepts by chirping, "A guy doesn't get an offer like that every day!"

Hirsch's first appeal was for Wilton Dedge, the Brevard County convicted rapist incarcerated for 22 years, despite the victim's initial description of an assailant a half-foot taller and 100 pounds heavier than Dedge. It took three years to get the DNA test, which cleared Dedge.

What happened next astounded Hirsch: The state attorney claimed the test was irrelevant. At an appeals court hearing, the assistant attorney general argued that Dedge wasn't entitled to any remedy of law, even if the DNA proved his innocence. "The judge's jaw fell open," Hirsch says. In 2004—three years after the testing exonerated Dedge and six years from the time Hirsch took the case—Dedge was finally released.

At the time, Hirsch says, "There was no law or procedure" to handle this circumstance in 1996, when the request was made for a post-conviction DNA test on Dedge. "I had to invent that out of whole cloth." The law eventually changed to reflect the advent of DNA science.

As for the other initial two cases—which had much more cooperative prosecutors—the DNA tests reaffirmed the subjects' guilt.

That's fine with Hirsch. "I rejoice to know that someone was properly convicted. What I'm looking for is making the criminal justice system a less blunt instrument, and a more accurate method of deciding factual guilt." As a consequence, the statutory law of Florida was changed to allow already incarcerated convicts to obtain DNA tests.

Calling Scheck "the greatest lawyer of my generation" and the father of the innocence movement, Hirsch remains "on call" for another appeal.

Ironically, Hirsch now worries that his side was too successful. In 1994, the FBI created CODIS, a massive computerized databank warehouse that has since expanded to include DNA samples of all state and federal convicts, and others whose DNA is taken for any number of reasons. The databank is accessible by all state law enforcement agencies, as well as what Hirsch calls "innumerable faceless apparatchiks" including foreign law enforcement agencies, with little oversight or regard to how it's used. Additionally, even if a conviction is later overturned, that person's DNA stays in the database. "We've created Dr. Frankenstein's monster," he says.

Hirsch foresees a day when insurance companies will use the databases to determine if someone has a latent medical condition before insuring them, and by government and private entities looking for tendencies toward aberrant behaviors.

Says Hirsch, who for two decades wrote a bimonthly column about Fourth Amendment search-and-seizure law for The Champion (and now for a weekly blog, The Manic Suppressive), "We criminal defense attorneys now need to stand up and say there are profound constitutional issues regarding privacy and search-and-seizure for which the law has made no accommodation."

These constitutional protections have only eroded since 9/11, which Hirsch calls "the Bush/Cheney Reichstag fire." While not accusing the administration of causing the calamity, Hirsch says it gave them an excuse to accumulate "an unprecedented concentration of power inconsistent with constitutional precedent."

Guantanamo, unsurprisingly, disturbs Hirsch. "Holding people indefinitely in what's essentially a concentration camp—without charges, a day in court or access to habeas corpus—is disgraceful.

"We're the only country in the world that claims to be based on a matter of legal principle. If we're not a government of laws, then we're nothing."

 

Pen in hand

This atmosphere may have contributed to Hirsch's writing The Shadow of Justice, a novel he began when suffering from what he calls "a criminal lawyer's version of a midlife crisis."

"I was distraught over my inability to add a grain of sand to the edifice of justice." Despite never having written fiction, it came pouring out. "A whole army of lawyers and cops and witnesses and judges and snitches had been living rent-free in my head." While it was "the most therapeutic thing I ever did in my life," when it was finished a year later, Hirsch promptly placed it in a bottom dresser drawer to stay.

Then one day, while he was speaking to Paul Rashkind, an "ABA higher-up," Rashkind mentioned that the ABA was thinking of publishing novels, and wondered did Hirsch know anyone who'd written one? The Shadow of Justice became the ABA's first published work of fiction.

In the ultimate inside joke, at one key point protagonist Judge Clark Addison, looking for guidance, picks up a "well-thumbed copy of Hirsch's Florida Criminal Trial Procedure," a real-life reference book Hirsch authored.

He also co-authored, with former Circuit Court Judge Martin D. Kahn, the Criminal Benchguide for Florida Circuit Judges, the first lawyer in the state to do so.

But when Barry Wax, then-president of the Florida Association of Criminal Defense Lawyers, asked Hirsch to address that organization last year, it wasn't on legal procedures or Fourth Amendment rights.

"He wanted me to tell stories that a lawyer can use in closing arguments to illustrate any kind of case—a story for an alibi defense, a story for an insanity defense..."

Wax asked if Hirsch had enough stories to fill an hour.

Replied Hirsch: "I have enough stories for three hours."

Even that might be an understatement.

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