Criminal Law and Policy

A Student’s Reflection on the Criminal Defense Clinic: Lu Weierbach L’25

Lu Weierbach meets with a fellow student in the Law Library in Dineen Hall
Lu Weierbach L’25

I took Criminal Defense Clinic during my second-year Fall semester. I found this course to be one of the most valuable learning experiences during my law school education, primarily because:

  • I was afforded the opportunity to practice the legal skills I have learned, and
  • I received close mentorship from a licensed attorney and professor.

Though I was the only second-year law student in the class and likely the only one who hadn’t taken a course on evidence or client counseling, I found that the client and court-facing encounters came seamlessly. I suspect this is because I had led soldiers and reported to commanders during my time as an Infantry officer in the U.S. Army. The skills that I acquired prior to law school, namely interpersonal communication, and attention to detail, served me well as I conducted client interviews and court appearances.

During the course of the semester, my partner and I represented approximately seven clients from arraignment to disposition. In most of these appointments, we met the client in the courtroom on the day of their arraignment. This is typical in the Syracuse City Court system as it is in many jurisdictions throughout the country. Per the limitations of our appointment order, our clients all faced infractions or misdemeanors in the Syracuse City, Town of Geddes, or Village of Skaneateles Courts.

Our representation included client intake counseling, District Attorney negotiations, regular client meetings, and court appearances. My partner and I met weekly with Professor Gary Pieples, Director of the Criminal Defense Clinic, who was the counsel of record for each case. In these meetings, we informed our professor of what we learned during our client meetings, conversations we planned to have with the District Attorney, legal research regarding the case, and any other legal or ethical issues that might arise. Our professor, who has decades of criminal law experience, advised us on the best way forward for each case. These meetings synthesized the legal concepts we learned in our substantive classes with the practicalities of real-world practice. Our reference point for most of the issues we encountered was the New York State Criminal Law Handbook —which is a volume that includes New York Penal Law and procedure, inter alia – and case law which we referenced either on Lexis or Westlaw.

The most rewarding aspect of the Criminal Defense Clinic was seeing clients to an amenable disposition. Many of our clients were first time offenders who came from underserved populations within the Syracuse metropolitan area, the folks who most needed competent, zealous advocacy. It was my honor to serve them and our community.

Professor Emeritus William C. Banks on SCOTUS Jan. 6 Obstruction Decision: “Will Likely Only Impact a Small Number of Convicted Rioters”

Professor Emeritus William C. Banks spoke with Independent on the SCOTUS ruling that narrowed the definition of obstruction in January 6 riot cases.

“The decision will not have tremendous significance in the January 6 cases, including that of former president Trump, because in almost all cases there are other charges that have a felony status alongside the obstruction charge,” says Banks.

He continued “The basic question before the court was the meaning of a straightforward statute banning obstruction of an official proceeding. Sixteen of 17 federal judges had construed the statute to reach the kind of obstruction at issue in most of the January 6 cases. Today, the Supreme Court majority read the statute differently and said that the obstruction statute applied only to documents. Their reading of the statute is contrary to plain meaning of the law.”

Professor Lauryn Gouldin Discusses the Hunter Biden Ruling and Rahimi SCOTUS Ruling with the Washington Examiner and Law 360

Professor Lauryn Gouldin recently spoke with the Washington Examiner concerning the recent Supreme Court of the U.S. ruling in United States v. Rahimi and its potential impact on an appeal in the Hunter Biden Federal gun case.

Gouldin said the Supreme Court repeatedly noted that Rahimi had notice and process for being subject to a domestic violence protective order, whereas Biden did not.

“You don’t have any of that notice or process that attaches for Biden’s case. That is a lot of what his defense team was challenging before the trial and at the trial.”

Gouldin also spoke with Law 360 on the cases (may be behind paywall.) Here, she says a review of the drug addiction cases will also require a “completely different” historical analysis given that opium and other drugs were not illegal when the Second Amendment was enacted.

Distinguished Visiting Lecturer David Cay Johnston Interviewed by Salon on Donald Trump

Distinguished Visiting Lecturer David Cay Johnston was recently interviewed by Salon about the verdict in the Donald Trump business fraud case, his sentencing, and the upcoming election, among other related topics.

Regarding sentencing, Johnston says:

“Donald Trump can bring his lawyers and they can certainly try to moderate what he says in the pre-sentencing interview. But the pre-sentencing report prepared by a probation officer will likely not contain anything new in terms of who Donald is or anything the judge doesn’t know. What it will provide the probation officers with is opportunity to judge whether he can even fake contrition, and that’s where Trump has an irresolvable problem. Roy Cohn taught him that if law enforcement comes after you then you attack them. They are corrupt. They are dishonest. You are as pure as the fresh fallen snow. Never, ever give an inch. You are perfect. Well, that’s not going to work with the probation officer and Judge Merchan. But that approach will work with Trump cult followers and too many other members of the public.

I think the meeting with the pre-sentencing probation officer is an opportunity for Trump to manipulate, but it’s also a high risk that he will just dig himself further. At the sentencing hearing, if the judge calls on Trump to speak, I think there’ll be a real crisis for him. He will know that he can’t apologize. Trump cannot say “I was wrong.” All he can do is attack the judge, and that’s an invitation to a longer sentence. That’s how the system is supposed to work. If you refuse to acknowledge and take responsibility for wrongdoing, you’re sure to get a longer tougher sentence than somebody who says, “Yeah, I screwed up, and I recognize that now.”

I will be surprised if Judge Merchan does not give Trump some time behind bars. That could be the absolute minimum of 30 days. More likely, it may be much longer up to the four-year maximum.”

Professor Gregory Germain Discusses Trump Criminal Trial Developments with the Media

To arrange an interview with Professor Germain, please email Rob Conrad, College of Law Director of Communications and Media Relations.

Professor Gregory Germain recently spoke with several media outlets about the Trump criminal trial and the guilty verdict.

After conviction, Trump questioned the New York statute of limitations. Here are the facts

USA Today, June 5

Germain said he wondered whether the statute of limitations might apply to the underlying – and uncharged – crimes that made falsifying business records a felony.

“I could imagine a court saying that you can’t put together two or three” misdemeanors that are beyond the statute of limitations and turn them into a felony that hasn’t reached that time limit, he said.

Legal Face-Off

WGN 720, June 5

“It’s such a complex, convoluted case I think he has good grounds for appeal which is not to say I think what he did here was moral or ethical…but whether he broke the law in a way that isn’t barred by the statute of limitations, its very hard to find that,” says Germain.

When asked about the possibility of the case going to the U.S. Supreme Court, Germain said “I think if the judge sentences him to prison, it might get to the Supreme Court. Imprisoning one of the major candidates during an election raises difficult questions.”

Germain’s interview starts at the 1-minute mark.

Donald Trump Prison Sentence Would Create Constitutional Chaos: Experts

Newsweek, June 6

“I don’t think Trump will be given a prison sentence, because that would create a constitutional crisis and a slew of appeals and habeas corpus challenges, and a mess for the judicial system in trying to deal with prisoner Trump,” he said.

Professor Lauryn Gouldin Discusses Hunter Bident Felony Gun Charges

Professor Lauryn Gouldin recently spoke with KNX Radio (Los Angeles, CA) on the federal charges against Hunter Biden. He faces two false statement changes and a possession charge in violation of a federal statute that forbids drug users or people with addiction from possessing firearms.

“One of the things that make this an easy case for prosecutors is that there is a signed form that they want to use to prosecute him. When I think of the strategies for the defense, I see that Biden’s defense attorneys seem to be raising questions about who had actually filled out the form in question. I am not sure where that will go,” says Gouldin. “Some of it may turn on what it means under the statute to be an addict or user so there may be some effort to argue that he didn’t know that he would fit those definitions. His memoir and text messages are part of the prosecution’s case against him. I think it’s an uphill battle for the defense.”

Listen to Professor Gouldin’s interview.

Professor David Driesen on Trump Verdict: “This Was a Fair Trial”

Professor David Driesen provided commentary to Newsweek’s coverage of Donald Trump’s hometown newspaper’s editorial on the unanimous verdict in the hush money trial.  The Palm Beach Post’s editorial read in part “Defendant Donald Trump is now a ‘convicted felon.’ He becomes the first former president and presumptive Republican Party presidential nominee to earn that historic but ignoble label. He now has a criminal record, a damning complication for any candidate seeking political office, much less the presidency of the United States.”

Driesen said the unanimous verdict reached by independent citizens does not in any way implicate Judge Juan Merchan or the prosecution.

“This was a fair trial,” Driesen said. “Trump’s baseless attacks on prosecutors and judges are scandalous and the willingness of many Republican politicians to back up his nonsense dangerous and despicable.”

Professor Gregory Germain Gives an Analysis of the Trump Verdict

To arrange an interview with Professor Germain, please email Rob Conrad, College of Law Director of Communications and Media Relations.

Professor Gregory Germain spoke with Spectrum News 1 in the wake of a New York jury finding Donald Trump guilty of all 34 charges in the hush money case. He provided an analysis of the charges, what can happen on appeal, possible sentencing outcomes, and his current presidential campaign.

Germain noted that “There are very difficult legal issues in this case, some of which the judge preempted them [Trump’s defense] from arguing and others they should have emphasized the fact, for example, that the business records were modified or falsified after the election. How could the records have been falsified in order to defraud the voters when the records were falsified after the election?”

On the topic of sentencing, expected for July 11, Germain said “The rules say the sentence should be between one and four years in jail, but it can be less than one year at the discretion of the judge for a first-time offender. What happens now is we get the presentencing report from the probation department making a recommendation for the sentence and I would be shocked to see any recommendation of any jail time in a case like this, in a Class E first time-felon, the lowest felony you can be charged in New York.”

In a Fox News story, Germain said observed that it was “a terribly risky strategy for Trump to focus on Michael Cohen’s credibility rather than focusing on the convoluted legal basis for the claims.”

“It’s not clear to me what they expected the jury to believe – that Michael Cohen paid $125,000 of his own money to Stormy Daniels without Trump’s knowledge and promise of reimbursement? They did not present an alternative theory that makes any sense, so of course they believed Cohen,” Germain said.

He claims that “a much better argument” would have been “that the records could not have been falsified to defraud the voters in the 2016 election because the records were falsified in 2017 after the election was over, and the records were not public or known by the public.”

Professor Gregory Germain Provides Legal Insight as Trump’s Lawyer Begins Closing Arguments in Hush Money Trial

To arrange an interview with Professor Germain, please email Rob Conrad, College of Law Director of Communications and Media Relations.

In this Mirror story, Professor Gregory Germain comments that “So, even though only one juror is necessary for Trump to obtain a mistrial, and even though it’s a very flawed case, I predict that the jury will convict him.” Despite this, the professor did highlight possible flaws in the prosecution’s case.

He said: “I think the DA and the Judge are fully invested in obtaining a conviction. I think the judge will gloss over the legal issues in the jury instructions to allow a conviction by defining the legal issue around the propriety of paying hush money rather than the legality of paying hush money and how that relates to the documents charges.”

Professor Germain also spoke with Al Jazeera Network, pointing to “the two essential elements” of the indictment: “Where’s the fraud and where’s the [secondary] crime?”

Professor Katherine Macfarlane’s Article on Section 1983 Cited in Qualified Immunity Ruling

Professor Katherine Macfarlane’s article Accelerated Civil Rights Settlements in the Shadow of Section 1983, 2018 Utah L. Rev. 639 (2018) was cited by District Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi in a ruling in Green v. Thomas, denying a motion to dismiss malicious prosecution and false arrest claims on the grounds of qualified immunity. In his decision, Judge Reeves cites Professor Macfarlane’s article on Section 1983, a law that was passed originally as part of the Ku Klux Klan Act of 1871, and its historic role in civil rights litigation, writing:

The Ku Klux Klan Act “established a new legal order that contemplated direct federal intervention in what had been considered to be state affairs, a system in which federal courts were to enforce newly created federal constitutional rights against state officials through civil remedies and criminal sanctions.” Katherine A. Macfarlane, Accelerated Civil Rights Settlements in the Shadow of Section 1983, 2018 Utah L. Rev. 639, 660 (2018) (quotation marks and citation omitted). 

In conclusion, Judge Reeves writes:

“Desmond Green has suffered two injustices. The judiciary should not impose a third. If qualified immunity would do that, closing the courthouse doors to his claims, then the doctrine should come to its overdue end. The motion to dismiss is denied. This case is stayed so that Detective Thomas can exercise her right to an immediate interlocutory appeal. If she declines to timely appeal, the case will proceed into discovery as to this defendant. Detective Thomas can exercise her right to an immediate interlocutory appeal. If she declines to timely appeal, the case will proceed into discovery as to this defendant.”

Judge Reeves also cited Professor Macfarlane in his 2020 decision in Jamison v. McClendon.