In my criminal defense practice, I am constantly presented with the question of whether to settle a case or go to trial.  I love to try cases, but sometimes it is simply not in the best interest of the client to risk a trial.  And sometimes the opposite is true:  the case is so over-charged, the deal that is offered is so bad, that sometimes you simply have to try your case before a jury.  This issue is one that every criminal defense lawyer I know has to deal with.

In a New York Times piece this past weekend, Michelle Alexander writes about how things would be different if instead of only 10% of all criminal cases going to trial, 90% of all defendants charged with a crime actually exercised their constitutional right to a trial by jury.  She writes about how that would crash the system, and perhaps bring about a change where the prosecutors were forced to scale back dramatically the number of criminal cases charged:

“The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before.”

To see the whole article, go to  http://tinyurl.com/7e2wuaj


In 2012, I will have practiced law as a trial attorney for 25 years.   A quarter of a century!  I cannot believe how quickly the time has passed.  During that time I have handled many hundreds of cases for individuals and enterprises. During the first half of my career, I mostly represented creative individuals and entrepreneurs in business disputes concerning their intellectual and real property rights.  During the last several years, I have developed a blended practice of mostly criminal and some civil cases.  Every year I take to trial many cases, both civil and criminal.

To me, it really does not matter whether my client is involved in a civil or a criminal case.  The stakes are always high, and my commitment to passionately advocating for my client is the same.   In every case I accept, I look for the thread of humanity that runs through it.   It does not matter whether I am dealing with a white collar case where my client is accused of stealing millions of dollars, or a criminal case where my client is accused of murder.   In either scenario, I am always listening for the human dynamics that underlie what really happened here – the universal human themes that run through every case, whether it is filed by the government against an individual as a criminal case, or between individuals in a civil dispute.

At the heart of every case are the people and their story. From the first call from the client, to the closing argument in court, my primary focus is what really happened, because every case, whether civil or criminal, involves a human drama where the client is the star, and my job is to first understand and then tell their story in the most compelling, compassionate way.   The law and rules of evidence and procedure are a means to this end, the tools in my tool box.   My clients know that when they hire me, I will tirelessly work to prepare their case and collaborate with them so that they get their constitutionally-guaranteed day in court.

I believe that fundamentally we are the same, and that every court case involves the culmination of a larger drama written in the language of universal human experience. I like to spend a lot of time preparing with my clients so that I can learn as much as I can about what happened and the people involved in their case.  I immerse myself in their reality.  If I can truly understand what happened on an intellectual and an emotional level, then I can convey that to the jurors in a way that will resonate with them.  This is my gift to my clients, and my purpose in doing this work.

QUESTION: What do Most Gentlemen Who Are Presently Incarcerated Have in Common?

ANSWER: They are usually in jail as a result of drugs, alcohol, sex, a woman, or all or any combination of the above.

Most of our male clients are in legal troubles up to their eyeballs because of a woman, usually one they loved at one time (and usually one who is not their mother).   From the angry baby mama who snitched, to the underaged stepdaughter who lied to police about her stepdad’s alleged sexual advances, to the vindictive soon-to-be-ex-wife who fabricates a battery charge in order to send her husband back to state prison for a probation violation.    It’s not just a trend.  It’s a sad fact of the matter that dysfunctional human relationships are at the core of most criminal cases we defend.

If this sounds familiar, you don’t need just a good lawyer or legal technician.  You need a great lawyer.  You need a lawyer who gets it.

That’s what separates the good lawyers from the great ones.  Those who understand human dynamics and the stuff of human relationships, the universality of the personal issues which underlie each and every criminal case.  One who can communicate with you and communicate about you while in front of a jury.  One who will resonate with the jury and who can tell your story in a compelling, compassionate way so that not just you and he/she get it, but so that the jury can get it, too.

The lawyers who do that the best are highly empathic and persuasive, in addition to being very skilled at what they do.   They have not only been around a courtroom, but they have been around the block.

We get it.  Sure, we know the law (and when we don’t, we know where to look it up), but mostly we know human relationships.  It’s ironic that world renowned scientist Albert Einstein was reported to have said, “Work on humanity, and forget all the rest.”  That one thought drives us to a great extent in every case we defend – not only in understanding the true humanity of a client but conveying to the jury the very core of exactly what happened, and who our client is.


By Jennifer Gardner

I won a felony child abuse case (Penal Code Section 273a(a)) this past Monday afternoon in Compton.  After 5 days of trial, the Jury deliberated for two and one-half hours, before they returned a verdict of not-guilty for my client, who is by far one of the most courageous young women I have ever met.  She refused all offers to plead, believing steadfastly that she did not do anything wrong.  She placed her trust in me, and her faith in the jurors, and they did the right thing.  Justice was served, and I am honored to have been a part of that.  I am humbled and proud to have stood by my client, in what were probably the scariest days of her life, and that she chose me as her lawyer.  Results like these make the loss of sleep, the long hours, and the price of gasoline well worth it.- See more at: https://jgardnerassociates.com/dev87/blog/?p=398#sthash.0sLhHsS1.dpuf

36 Minutes

By Mark McBride

The phone rang at about 10:00 a.m.  It was Friday morning, December 17, 2010, and a court clerk was on the phone telling me that a jury had reached a verdict.  Jen and I had just finished a trial which had lasted 7 days in Compton.  We finished the case the afternoon before.  The jury did not deliberate that afternoon, but was sent home to return the next morning, the 17th, to begin deliberating.

When the clerk called me, I thought to myself, “Wait!  This isn’t good.  The Court ordered them back at 9:15 to begin deliberating!  This can’t be!

I drove to the courthouse as quickly as I could.  My heart was racing.  It always does when I get word that a jury has returned a verdict.  Jen and I had been placed on 1-hour call by the clerk, and as we drove to the courthouse, we were talking with each other on our cell phones and speculating about what the verdict could be.  How could they reach a verdict so fast in a case which had taken 7 days?

I thought to myself:  “45 minutes?  That’s how long they took to deliberate?  What?  You gotta’ be kiddin’ me!  Oh, man, this is no good.”

When we got to the courthouse, we checked in, and eventually the Court ordered the jury to be brought in.  I have seen this happen before, and the same two things always happen to me:

1.  My mind begins to slow down, and I say a silent prayer in my heart (not that the verdict be not guilty, but that the verdict be just and fair); and

2. In slow motion, I see the foreperson hand the verdict forms to the bailiff, who then hands them to the Clerk, and he or she begins reading, “We, the People of the State of the California, in the case of [insert Defendant’s name here] . . .”


The verdict was not guilty as to our client!

He was free; the case was over.  In criminal law, that’s called “walking your client,” as in, you have just walked your client out the door.  Jen cried a bit, and I was in shock.  Total shock.  We both hugged and kissed our client.  This is about as emotional as I get in life.  In my personal life, I get emotional, but, in that situation, there’s still a sense of some control, and I generally know what’s going to happen before the tears come.  In a jury trial, however, when you finish your closing argument, and when the DA gives his or her rebuttal closing argument, the case is totally out of your hands.  It is in the hands of the jury, and there is a complete sense of loss of control.
In every closing argument I give, I tell the jury that I trust them, and that I need their help, and that I need their courage, and that I need their internal strength.  I tell them that I need their leadership, and that every one of them, no matter who they are, has immense dignity and worth and is just as important as every other juror on the panel.  I tell them that “the carpenters in this group are just as important as the brain surgeons in this group,” that the woman are just as important as the men, and the folks who aren’t that articulate are just as important as the jurors who are well spoken.  And I mean all these words.  I do trust juries.  It is the rare, rare occasion during my experience as a private criminal defense lawyer when a jury has rendered a verdict which totally blew me away or which was something completely unexpected.

As for this recent verdict, while we were waiting for the jury to file in, the clerk indicated to us that the jury began deliberating at 9:20, and that they buzzed with a verdict at 9:56.  36 minutes.  My, my, my . . .

It will be a moment I will never forget.  I remember it pretty well, but am still stunned by it.  What I do remember is, after the not guilty verdict was read, I closed my criminal procedure book because I was prepared to make an oral motion that my client stay out on bail pending sentencing in the event that he was found guilty.  That’s what I remember most — that and the hugs Jen and I shared with our client over and over.

In closing, I want to thank my “partner in crime,” Jennifer, for co-counseling this case with me.  I learned so much from her, and I do every day.  She is such a spectacular lawyer.  There will be other trials, and each one will be, as the judge said in this recent “not guilty” case, a journey indeed.

What You Need to Know if a You Are Ever Charged With Having Sexual Contact with An Underaged Person

We are often consulted by clients who are accused of having improper sexual contact with minors.   The scenarios they present are endless:  they range from a grandfather who is accused of inappropriately touching his granddaughter’s friend, to same sex individuals where one is age 15 at the time of the alleged sexual conduct.

Clients often ask us what crimes they might be charged with, how long the government has to file a case against them, and how long a sentence they might have to serve if they are convicted of any of these crimes.  These questions are relatively straightforward.  The answers, however, are not, especially where the alleged victim was a minor at the time the sexual contact occurred.

Here is an overview of the law that applies.

Overview of Potential Liability (or what claims could be alleged, what is the potential sentencing exposure and, what is the applicable statute of limitations):

Preliminarily, when computing statute of limitations in criminal matters, you must look at the potential sentencing exposure should there be a conviction.  The length of the potential sentence often determines the statute of limitations.  As you will see below, this is complicated when the crimes involve a minor (i.e., a person under the age of 18) and there is a wide age gap between the “victim” and the perpetrator.

The penalties for violating California’s “lewd acts with a minor” law vary, depending on the age of the child (and possibly the age difference between you and the minor), the specific facts of the case (for example, did the act involve force or violence?), and your criminal history.  These factors will determine the length of any prison sentence that prosecutors could seek.

If prosecutors charge you with child molestation when the alleged victim is 14 or 15 years old, and if you are at least ten years older than the minor, the charge is what’s known as a wobbler.   A “wobbler” can be filed as either a misdemeanor or as a felony.  The only true difference between misdemeanor and felony sentencing for a “lewd acts with a minor” charge lays in (1) the fine, and (2) the potential jail/prison sentence.  Misdemeanor child molestation subjects you to a maximum one-year county jail sentence and a maximum $1,000 fine.   Felony charges subject you to one to eight years in state prison and a maximum $10,000 fine.  In the event that you are significantly older than the minor in this case, you most likely will be charged with a felony.  If you are convicted, you would most likely be sentenced to state prison (as distinguished from county jail) where you would serve your sentence.

Additionally, you face the following penalties which pertain to violating any California “lewd acts with a minor” law:  Penal Code section 290 lifetime registration as a sex offender; a requirement that you pay for any medical or psychological treatment that the minor incurs as a result of the offense; and an additional and consecutive five-year state prison sentence if the minor suffers great bodily injury because you use force or violence during the offense (“great bodily injury” is significant or substantial physical injury).

You may be charged with Unlawful Sex with a Minor per Penal Code § 265.1 which provides, in pertinent part, as follows:

(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of theperpetrator, if the person is a minor. For the purposes of this section, a “minor” is a person under the age of 18 years and an “adult” is a person who is at least 18 years of age.

(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.

(c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison.

(d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.

You may also be charged with Rape in violation of Penal Code § 261. In that event, provided the prosecution alleges that the alleged victim did not consent, the potential sentences are as follows:

(c) (1) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a child who is under 14 years of age shall be punished by imprisonment in the state prison for 9, 11, or 13 years.

(2) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a minor who is 14 years of age or older shall be punished by imprisonment in the state prison for 7, 9, or 11 years.

Another potential count that could be filed would be for violation of Penal Code § 269, or Aggravated Sexual Assault of a Child, which provides as follows:

(a) Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child:

(1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261. (2) Rape or sexual penetration, in concert, in violation of Section 264.1. (3) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286. (4) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a. (5) Sexual penetration, in violation of subdivision (a) of Section 289.

(b) Any person who violates this section is guilty of a felony and shall be punished by imprisonment in the state prison for 15 years to life.

(c) The court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.

There are also a variety of offenses that are related to Penal Code § 288 Child Molestation either because they are frequently charged in connection with a count for Lewd Act with a Minor, or are part of a Penal Code § 288 charge.  These are the most common examples:

–  California Penal Code § 288.2 – Harmful Matter Sent with the Intent of Seduction of a Minor: If you knowingly send or email erotic material to a minor with the intent of arousing yourself or the minor, you may be convicted of Penal Code § 288.2.   An example would include chatting online with a child you believe to be 12 years old, and then emailing him/her a nude photo.  This crime can be punished as a misdemeanor or felony, subjecting you to a county jail or state prison sentence.

–  California Penal Code § 288.5 – Continuous Sexual Abuse of a Child:  This crime involves engaging in three or more “acts of lewd or lascivious conduct” over a period of three months or longer, with a child under 14 years of age. A person convicted of Penal Code § 288.5 faces between 6 and 16 years of state prison.

–  California Penal Code 243.4 – Sexual battery:  Penal Code 243.4 “sexual battery” prohibits touching the intimate part of another for sexual arousal, gratification, or abuse.   The difference between this law and Penal Code § 288 “lewd acts with a minor” is that “sexual battery” makes no mention of the victim’s age.  If the minor was 14 or 15 and less than ten years younger than you or was 16 or 17, this is the offense with which prosecutors would likely charge you.   A “sexual battery” charge may be filed as either a misdemeanor or as a felony.

How Statutes of Limitations are Computed For “Sex Crimes:”

The applicable statute of limitations is determined by reference to the maximum punishment possible under the statute.

If an offense is not punishable by death or imprisonment in a state prison, i.e., if it is a misdemeanor, the statute of limitations is ordinarily one year.  See Penal Code § 802; People v Mincey (1992) 2 Cal.4th 408.   For an offense punishable by imprisonment in a state prison for less than 8 years, the statute of limitations is ordinarily 3 years.   See Penal Code § 801.

The statute of limitations that applies to a “wobbler” (a crime that may be charged either as a misdemeanor or as a felony) that is charged as a misdemeanor is determined by reference to the maximum felony sentence.  See Penal Code § 805(a).  When a misdemeanor is charged as a felony because of prior convictions, the felony statute of limitations applies.  See Penal Code § 801; People v San Nicolas (1986) 185 Cal.App.3rd 403.   If an offense is punishable by imprisonment of 8 years or more, the statute of limitations is ordinarily 6 years.  See Penal Code § 800.  [There is no statute of limitations for an offense that is punishable by death, imprisonment in state prison for life, or imprisonment for life without possibility of parole, or for an offense involving embezzlement of public money.  See Penal Code § 79.]

There are some important exceptions to these rules, including cases which involve sex crimes against victims under 18 at the time of the offense (see Penal Code §§ 801.1(a) and 803(f)) and sex crimes when the suspect’s identity is later conclusively established by DNA testing (see Penal Code § 803(g)).   Although the statute of limitations generally begins when the offense is committed (see, e.g., Penal Code § 802), for some crimes it does not begin to run until the crime is discovered. Penal Code § 803(c).

How the Time the Offense Occurred Impacts the Case Where Sex Crimes Are Alleged:

Although the charging document (which can be what’s called a complaint, information, or indictment) need not allege the exact date upon which the offense occurred, it must allege facts showing that the prosecution is not barred by the statute of limitations, and if the time elapsed exceeds the statute of limitations, the charging document must allege further facts, e.g., the defendant’s absence from the state for a sufficient period to toll the statute under Penal Code § 803(d).  See also In re Demillo (1975) 14 Cal.3rd 598.

The following is an excerpt from the seminal handbook California criminal lawyers use on a daily basis, CALIFORNIA CRIMINAL LAW PROCEDURE AND PRACTICE (2011 ed.), which discusses how timing issues are problematic, especially in child sexual abuse cases:

Pleadings in cases involving repeated or continuous acts of child sexual abuse present special problems for the defense because the charging document may be vague about when the offense occurred, e.g., Count 1: a violation of Pen C § 288(a) between September 1, 2003, and December 31, 2003. The California Supreme Court has upheld such generic accusatory pleadings against due process challenge.  See People v Jones (1990) 51 C3d 294, 317, 270 CR 611 (generic child molestation pleading does not deprive defendant of due process rights to notice and to present defense).

In Jones, the court observed that the defendant had a variety of procedural remedies to test the pleading, such as demurrers and pretrial motions to set aside the information or indictment (Pen C § 995 motion). 51 C3d at 320. However, the decision in People v Jennings (1991) 53 C3d 334, 356, 279 CR 780 (no due process notice violation in information that alleged offense occurred “on or about the summer of 1983”) suggests that a demurrer to generic child molestation charges is not likely to be successful. Defense counsel should demur but should also be prepared to pursue pretrial motions to dismiss under Penal Code § 995 (see chap 13) and to require the prosecutor to elect the specific incident on which he or she is relying to prove a particular count. See § 31.33. At trial, counsel should request a jury unanimity instruction. See CALCRIM 3550.  See also People v Jones (1990) 51 C3d 294, 321, 270 CR 611.

Some (well-deserved) Back-Patting for Jennifer Gardner

By Mark McBride

In light of all the kind words Jennifer has posted on this website about me, I would be remiss in not returning the favor.  This, however, is not an attempt simply to pat each other on the back for nothing, but is instead well-deserved back-patting, and my chance to introduce the criminal defense warrior side of Jen, and provide some input on who she is – both as a person and a lawyer as she gets in the trenches with me on very serious criminal cases.  Indeed, in reflecting on what I’d say about Jen, I’m reminded of a great quote by JFK, who told the French press during his first trip to Europe as the president:  “I’m the guy who came to Paris with Jackie Kennedy!”

I met Jen a little more than a year ago while when she and I were working on a case together.  Knowing that perhaps 95 percent of my practice is devoted to defending serious felonies, she told me that she had long wanted to make the transition to criminal law, and that she was looking for the right partner with whom to do it.  It wasn’t long before she and I started talking about a very unique niche in criminal law:  the concept of a man-woman defense team and a firm which does not operate on a volume basis.  Personally speaking, this business model is something that I have wanted to do for years, since the criminal defense community, as we all know, is crowded with solo practitioner males, and since, even worse, the web is saturated with volume-based criminal defense firms which are “big hat and no cattle.”

That first case developed into us working on a couple more cases together, and shortly thereafter we started our criminal law partnership. And, boy oh boy, am I glad I did.  Jen is one of the best lawyers I have ever met.  She is honest, hard working, tenacious, and excellent both in and out of the courtroom.  She can go from making a great record in the courtroom in a high stakes felony case to dealing with anxious clients, to delegating responsibilities with investigators and clerks, to . . . Her ability as an advocate is virtually unlimited.  She brings a significant amount of litigation experience to our partnership (and I throw in a bit of wisdom here and there (at least I try!), and she’s a heck of a person, too.  We spend, of course, a significant amount of time talking and working together, and we have our wonderful spouses to thank for supporting us (even during late at night calls from clients in jail).

Since starting our boutique-style criminal practice, Jen and I have obtained amazing results in a myriad of high impact cases.  I couldn’t do what I do without her. I am honored to be working with Jen, and we strive each day to develop a professional relationship which is built to last, and we work on expanding ourselves regardless of each case we take on, whether it’s big or small.  Jen’s internal strength and courage is uplifting and inspiring, and she makes me a better lawyer each and every day.  Thanks, Jen, for going into business with me.  I hope never to let you down.

Three Enemies of a Criminal Defense Attorney

I have a serious bone to pick with what are three huge enemies of a criminal defense attorney:  (1) TV; (2) Movies; and (3) a great number of other lawyers.

The first two enemies go together. I call it the “TV effect.”  Clients often think that criminal defense work is like what they see on TV and in the movies.  They think that, by hiring a privately retained criminal attorney, money changes hands between defense lawyers and judges or between defense lawyers and prosecutors.  They think that simply because they hired a privately retained attorney, their case will “just go away.”  This is not particularly the client’s fault.  We live in a media-saturated culture, and our thinking is saturated with media images.  If a client has seen several movies (we all have) where money has changed hands and, in classic cinema style, a case has “just gone away,” or if a client has heard the old wives’ tale about, “Yeah, if you hire this guy or gal, they can just make a phone call . . .,” what can we as defense lawyers expect?

The last enemy of defense lawyers are often the many other (but certainly not all) lawyers out there who make guarantees, promises, or statements which gives a potential or current client the impression that, by hiring that given lawyer, the case will “just go away,” or that a very difficult case to defend is a walk in the park.  Frankly, this issue is much more real, and much more difficult to contend with as a practicing criminal attorney, than the TV effect.  On a virtual daily basis, I have clients, or potential clients, ask me:  “Mark, you can easily beat this, right?”  Or they’ll say, “Yeah, since I hired you, you can just make a phone call, right?”  Or here’s the worst one of all:  “You know, before hiring you, I talked to this other lawyer, and he (or she) told me that they could get my case totally dismissed.”  Man, I’m upset just writing that last one.  All of these statements, though, are unbelievable, and they do nothing for criminal defense attorneys who want to provide a great defense while also having an ethical and honest relationship with their clients.

As I sit here and write this blog, I think of the scene in “A Few Good Men” (see . . .there I go, thinking about movies myself!), where Jack Nicholson screams, in the courtroom finale:  “You can’t handle the truth!”  When you tell clients the truth, oftentimes they don’t like it — at all.  This is also unbelievable to me.  When you tell a client in a multiple life term case that there are some really bad facts or issues which a jury might have a hard time dealing with, or when you tell them, “No, I can’t get the DA’s office to offer less time,” clients will sometimes become irate.  Indeed, I recently had a client in an extremely difficult, multiple life case say, “Man, Mark, I just wish you would tell me that this case is no big deal.”  I am encountering this phenomenon more and more as a criminal attorney — a client’s desire not to believe what juries sometimes really think, or hear their case has some weak points.  This phenomenon is getting worse each day, and it’s in proportion, it seems to me, to the state of the economy.  When the economy is bad (sound familiar?), more lawyers will make more outlandish promises, and clients and potential clients will expect the attorney they eventually hire to act likewise.

But that’s alright.  That’s part of the job as a criminal lawyer.  If a lawyer doesn’t have thick skin, and if a lawyer can’t resist making false promises to a client, they have no business defending serious felony cases.  As Alan Dershowitz once remarked about the amazing, but incredibly honest, Clarence Darrow:  “Remember:  he wasn’t revered until after his death.”

The Bill Comes Due For Wall Street

There is plenty of blame to go around for the financial crisis. Borrowers who sought to live far above their means, and buy homes that they could not reasonably afford, are at fault. Regulators and government officials should have done a better job of ensuring that financial institutions didn’t take excessive lending and trading risks, and that mortgage lenders did not engage in inappropriate lending practices. And several financial institutions experienced risk management fail, in their blind rush to maximize profits.

With regards to the third leg of this triangle of responsibility, President Obama’s proposal to institute a tax on certain assets of financial institutions with more than $50 million in total assets represents an attempt to ensure that taxpayer bailout funds are fully recovered from financial institutions that took excessive risks — and what better way to accomplish that then to require the assistance of those institutions that benefited the most from the bailouts.

Some will make the argument that certain institutions were relieved of their obligations to the taxpayer once they repaid the bailout funds that they themselves received. However, at a time when Goldman Sachs recently paid 953 of its employees more than $1 million in compensation, several months after accepting $10 billion in bailout funds — and when Merrill Lynch paid 696 of its employees similar amounts, months after also receiving a $10 billion present — such arguments may have difficulty obtaining much sympathy on Main Street, especially when these banks might not have been in any position to pay this compensation to begin with, had they not been restored to health by the American taxpayer.

The American people shouldn’t be left to suffer and clean up the mess to which Wall Street played a major role in contributing. We need to hold Wall Street accountable for its share of the mess. If Congress approves the President’s tax, perhaps financial institutions will give more careful consideration, going forward, to the downside of making reckless decisions with regards to risk management, and will be extremely hesitant to put themselves in a position where taxpayer dollars are needed to save them. No one should begrudge the right of Wall Street bankers to enjoy fat profits whenever they make good decisions; but in turn, like good capitalists, they need to pay a price whenever they experience epic fail.

Three Lessons From Tuesday

Massachusetts Senator-elect Scott Brown’s victory on Tuesday over Martha Coakley suggests three important lessons for political candidates, and federal officeholders seeking re-election:

First, the most important word in 2010 for federal candidates is going to be accountability. Your pedigree won’t matter to much to voters, and no seat is “safe.” Voters want to know who you are, what you have done, and what you are going to do, going forward, to address their concerns. Candidates who don’t actively and effectively communicate these things are going to be trouble. When you’re a politician, voters are your clients. You take them for granted at your own risk. You can’t afford to be out-hustled on client service, and that’s where Coakley fell short.

Second, as important as health care reform is, in this political environment, the correct mantra for politicians to repeat continues to be “it’s the economy, stupid.” Politicians need to correctly diagnose and address voters’ immediate concerns about their finances before moving on to other concerns.

Third, no one has any clue about what’s going to happen in November. Raise your hand if you knew who Scott Brown was a year ago. However, whatever you may think of Scott Brown and his politics, the fact is, he knew who he was and what he stood for — and he did a great job of communicating that to Massachusetts voters. The lesson here is, persistence and passionate belief in a cause can overcome great odds to achieve an effective result. I can certainly relate to that, and to all of these lessons, as an attorney.