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cross-examination

Interview with Penny Cooper, “Champion of the Marginalized”

Penny Cooper has a real and enduring legacy, as is reflected in the documentary about her life and work entitled Penny: A Documentary Film. Penny practiced for 36 years in San Francisco after graduating from UC Berkeley School of Law in 1964 and is now retired.  She was a “lawyer’s lawyer” and was one of the first women criminal defense lawyers to try a major white-collar crime case, but she would tell you she preferred defending people charged with general criminal offenses.  She argued before the United States Supreme Court, which is rare for any lawyer, let alone a female.  She was known for her cross-examination skills and a long list of wins and high-profile acquittals; yet in-spite of this she has a keen understanding of the most important aspect of what it means to be a criminal defense attorney, that is that “[i]t’s not just the drama of going to court and objecting and winning or losing, it’s really managing people’s lives when they get into difficulty or trouble.” The documentary aptly described her as a “champion of the marginalized.” Penny was inducted into the Trial Lawyer Hall of Fame by the California State Bar’s Litigation Section in 2010, with long-time law partner, Cris Arguedas.  It was such an honor to interview one of the true legends of the criminal defense bar. I feel so lucky to have had an opportunity to have met and listened to this true defender, who forged a path for many of us to follow. I hope you will be as inspired by Penny Cooper as I am.   How did you get interested in criminal defense and what kind of cases did you handle? I am a product of the 60’s. I graduated from law school in 1964 from Berkeley.  The fall of 1964 was the free speech movement. We were just getting the civil rights amendment passed.  It was an era where everybody felt strongly one way or another about civil rights and criminal defense.  It was the only thing I was really interested in. I practiced for 36 years and I handled every kind of case.  My greatest day of practice was when I was coming home after having handled a traffic case for some guy who owned a winery who had entered the freeway the wrong way and was ticketed. I was representing him and I got the case dismissed because the law had been repealed. That same day, as I was driving home, I learned that we had won our case in the United States Supreme Court – United States vs. Merchant, 480 U.S. 615 (1987). This is the best way to express the breadth of my practice. I did everything from handling a traffic case in a little municipal court to arguing and winning a case before the United States Supreme Court. Without question, you were a pioneer for women in the field. What was it like to be one of the few women in the field when you started and did you know at the time that you were opening doors for other women in criminal defense? I have a very close female friend whom I went to law school with, and we laugh about it all the time because we didn’t even know what feminism was and we didn’t realize we should have been treated differently. We were just treated the way we were and it was really bad, but we just kind of laughed at it and soldiered through.  The dean of the law school was William Prosser, who was one of my teachers and he didn’t believe that women should be in law school – period. In my section, there were 90 people and only 3 women – and he didn’t call on women because he just figured it was a waste of time. In that era that’s just what people believed. Nick Johnson, who was another professor and who later became Lyndon B. Johnson’s head of the Federal Trade Commission, believed that it was so ridiculous to have women in law school; he said he was going to treat women equally — so in our class he called on man – woman – man – woman. Then we had a professor who transferred from Harvard, named Raoul Berger, and he would say “now stand up like a man and recite.” And we just took it all.  And we kind of laughed about it and still laugh about it.  It was only years later that we realized we had a right to expect something else. In law school we even had a segregated conference room where we would take our breaks and the men were someplace else. I remember when JFK was assassinated, we had to get permission from the dean to be able to watch the television, which was located in the men’s conference room. Here we were at Berkeley, the bastion of liberalism, which wasn’t so liberal back then. So, when I entered the public defender’s office there was only one other woman at the time but she was on her way out. The guy who hired me, the public defender, told me he didn’t really think women belonged in that office because it was like sailing down a sewer in a glass bottom boat. ...
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Should You Take the Stand in Your Own Defense?

To many criminal defendants, taking the stand to defend themselves seems like a righteous and principled choice. That may have been Sulaiman Abu Ghaith's reasoning last week, when the man better known as Osama bin Laden's son-in-law took the stand during his terrorism trial. However, other high-profile defendants like George Zimmerman have opted not to testify at trial. Should you be convinced to take the stand in your own defense? Support for Taking the Stand As Ghaith might have felt as he took the stand last Wednesday, there is a certain sense of respect or earnestness that comes with directly voicing your own defense. In fact, one defense attorney told the Portland Press Herald that juries often want to hear from defendants, and testifying "can go a long ways toward convincing a jury of their innocence." The Sixth Amendment of the U.S. Constitution guarantees every criminal defendant the right to take the stand and the right to refuse to testify. Many defendants exercise their right to tell jurors what happened in their own words, offering emotional and factual details that could otherwise be lost. Reasons Not to Take the Stand Because it is a constitutional right, attorneys often cannot prevent their clients from testifying, even if it is a terrible idea. In some cases, even if a defense attorney is certain his client is very likely going to lie on the stand, the attorney may be ethically bound to allow the defendant to testify. Keep in mind, though, that in many criminal cases, it is neither advisable nor necessary for a defendant to take the stand because the prosecution has the burden of proof. Criminal defendants are innocent until proven guilty and are not even required to present a speck of evidence in their defense -- much less to testify. When defendants do take the stand, it is a potential invitation for prosecutors to rip them to pieces during cross-examination. Even the most composed persons can become angry, blustering, guilty-looking buffoons when grilled by a skilled prosecutor. An equally skilled criminal defense attorney can advise you whether you should take the stand in your own criminal case -- advice that shouldn't be ignored. Related Resources: Al-Qaeda spokesman Abu Ghaith takes stand in own trial (BBC News) 5 Reasons Defendants Choose Not to Testify (FindLaw's Blotter) Fool Represents Self, Reported Guns Stolen with Fake ID (FindLaw's U.S. First Circuit Blog) Should You Represent Yourself in Court? (FindLaw)
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