A good trial lawyer is a gun-for-hire who knows all the angles and isn`t ashamed to try any to help a client. And, William Levinson has just tried a truly different angle, though the motivating factor may be a bit unclear.
Levinson, 60, is a private attorney and member of the Federal Defender program. He was appointed to represent a woman charged along with her husband with defrauding the U.S. Department of Housing and Urban Development of more than $15,000 by understating their income to qualify for subsidized housing.
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It was a bench trial before U.S. District Judge Ann Williams and Levinson`s client, Betty Collins Hart, had just testified in her own behalf. She had been impeached several times during her cross-examination by Andrea Davis, an assistant U.S. attorney.
Just before the trial was to resume after a lunch recess, and with only one more defense witness scheduled, Levinson asked Williams for a meeting in chambers. According to a transcript of that proceeding, a very weird thing happened: Levinson asked for a new trial based on his own incompetence.
”Your honor,” Levinson began, ”this is a very hard thing for me to do, but I have been a member of the bar of this court for 32 years; and no matter what had happened in those years, I felt one thing: a responsibility to my client.”
He said he had been ill with a ”flu-like” disease that recurred periodically. ”It can come back in many forms, but it is the same kind of virus, and it can lay you low or make you feel bad. This last time, the virus laid me low. . . . I then got better. I told you I would inform the court about the course of this illness. I told the court I had a mild relapse. I thought I could go ahead and I did.”
The night before, he said, ”I thought to myself, `You just haven`t performed like a federal court trial lawyer should have.` . . . I should have told you earlier, but I thought, `I`ve got to go on. I`m not going to whine and complain.` ”
But he went on and now found himself exhausted. ”I haven`t prepared for this trial the way I would have 12 years ago or even eight years ago.” He described his direct examination of his client as ”a horror. My motion is to declare a mistrial and grant my client–and, by the way, the one thing I`ve learned is you`ve got to do what you think is right for your client. I haven`t lost all of my marbles.”
He said, ”My motion is to grant my client, Betty Collins Hart, a new trial, on the basis that she has had ineffective assistance of appointed counsel.”
Davis, the prosecutor, was not convinced or amused. ”I don`t think his conduct or performance in any way reaches any kind of level of ineffective counsel. He has ably cross-examined witnesses. He`s put his own client on the stand. . . . Maybe she didn`t testify in a way he was happy to see. Today he comes in and he moves for a mistrial, saying, `Oh, geez, I did a terrible job,` after he`s not happy.”
Davis added, ”I find it contemptuous. I think it`s unethical.”
Steve Komie, attorney for Hart`s husband and co-defendant, Willie, chimed in, saying he had noticed Levinson`s health had declined over the years. He believed the motion was not contemptuous, but was ”commendable, if he feels his performance is substandard.”
Williams then said she would not find Levinson in contempt but denied the motion. ”I have seen you conduct cross-examination. I have seen you conduct direct examination of the witnesses. And in your own mind, it may not be what you did 10 or 12 years ago, but this court has no basis to find that you have represented your client in an incompetent way.”
A week later, Williams convicted Betty Collins Hart of five counts of making a false statement to a federal agency and her husband was convicted of two counts. Sentencing is scheduled for April 3.
Terrence McCarthy, head of the Federal Defender program, said Levinson has been involved in the program 18 years and ”done wonderful work for us.” He said, ”It takes an awful lot of guts to admit this. . . . He`s discovered he`s lost the ability to do it.”
When contacted, Levinson said that after the unusual motion was denied,
”Things went along all right. . . . For the rest of the trial I felt I did a perfectly decent job.” He said he feels fine now.
UNHAPPIEST FLIER: A NEW CANDIDATE
Remember a few years ago when former Illinois Supreme Court Justice Thomas Kluczynski and wife sued Delta Air Lines for the ”outrage and indignity” caused by being bumped from a flight to Florida, received a silly $208,000 state court jury verdict and settled for $7,000? Well, there`s a possible new contender for most unsympathetically indignant airline passenger: Chicago attorney Mark Kreitman of Antonow & Fink. Prepare for this tale of dramatic consumer defiance and search for sky-high compensation.
In 1984, Kreitman was eligible for a free round-trip ticket on Eastern Airlines through a frequent flyer program. He decided to travel with his fiance to Barbados, making reservations to leave on Jan. 7, 1985, and return Jan. 13, according to a suit filed on his behalf by Patricia Bobb that seeks a modest $1.25 million.
On the return, the flight was overbooked and Kreitman and another passenger got on and realized they were assigned the same seat. Volunteers were sought to get off. Kreitman declined and flight attendants asked him to leave because his ticket was stamped for Jan. 14, the following day. He refused and two Miami police officers were summoned. According to their report, he ”became beligerent, stating that he refused to leave unless arrested . . . stating he is an attorney and a lawsuit was forthcoming.”
But Kreitman and fiance did disembark and Eastern officials rechecked the tickets. They found, the police said, that a computer mistake had been made and the couple was entitled to be on the flight. Eastern officials apologized and, said the police report, Kreitman ”became irate, stating an apology was not enough at this point; `I have been publicly humiliated. Eastern Airlines will be hit with a lawsuit they`ll never forget.` ”
The couple then got back on the plane. According to the police, Kreitman pushed his way past the flight crew and other passengers, hip-checking a flight attendant into a row of seats and pushing aside several passengers.
The captain asked the cops to return and remove Kreitman ”to prevent further problems in the air.” Kreitman refused the cops` request, saying, ”I will not leave unless I`m under arrest.” So he was arrested, frisked, photographed, fingerprinted and stuck in a cell at Dade County Jail where he remained from 6:30 p.m. until 10 p.m., when he posted a cash bond.
Criminal trespass charges were dismissed. Eventually, he filed his lawsuit. Robert Haley and Richard Palmer, representing Eastern, tried to get the case switched to Florida. But now Kreitman`s attorney, Bobb, is asking District Judge Nicholas Bua to dismiss the lawsuit, supposedly so she can get it rerouted to Illinois state court. We suggest Bua do it, but get Kreitman an autographed picture of Eastern boss Frank Borman in his old astronaut suit as consolation.
UNHAPPIEST REPORTER: A NEW CANDIDATE
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Remember Don Harris, the television reporter and political editor for Channel 9? If you haven`t seen him, it`s because he got fired last December after the station turned him into a slow version of the old Houdini disappearance trick.
Now he has resurfaced and filed a $1 million age-discrimination lawsuit in U.S. District Court against Tribune Broadcasting Co., parent of WGN, and his former union, the American Federation of Television and Radio Artists.
Harris, 52, who joined WGN full-time in 1964, was transferred from television news to radio news in August, 1983, and his pay was cut the following May by 50 percent. His television replacement, says the suit, was 26-year-old Christine Negroni.
Harris was suspended without pay last Oct. 18. The suit also claims he was refused opportunities to work overtime and that his eventual discharge was in retaliation for filing a complaint with the U.S. Equal Employment Opportunity Commission and the Illinois Human Rights Commission. It`s Harvey Silets and Dave Ward for Harris, while Richard Marcus represents the station, which denies the charge.
BRIEFS: The break-up and frenetic search for merger partners continue at Friedman & Koven, down to just over 60 lawyers as hotshot litigator Steven Bashwiner, who represents the likes of Drexel Burnham and E.F. Hutton, splits for 185-lawyer Katten Muchin Zavis Pearl & Galler. . . . Chicago criminal defense lawyers Gerald Werksman and Alan Ackerman win acquittals or dismissal of charges against clients Herbert Blitzstein and Michael Spilotro in an ongoing burglary and racketeering case that includes Spilotro`s brother, alleged mob honcho Anthony. . . . It`s reassuring to learn via an ad in the March issue of conservative American Spectator that a new book by University of Chicago Law`s Richard Epstein can be had 24 hours a day, seven days a week via the distributor`s toll-free number and via either Visa or MasterCard.
The 7th Circuit Court of Appeals asks for lawyer comments on the performance of Bankruptcy Judges Frederick Hertz, Edward Toles and Charles McCormick, who are reapplying for their positions, with critiques to be sent to Collins Fitzpatrick. McCormick was the chief judge censured and demoted last year after letting lawyers at Nachman Munitz & Sweig write rulings for him without knowledge of the other side in a case.