Posts Tagged ‘criminal defense lawyers’

Statistical ranking of defense lawyers? Maybe, but not this way.

Wednesday, January 2nd, 2013

It’s an intriguing notion: that one can objectively assess the relative effectiveness of a given lawyer. With hard data, and sound analysis. In the real world, it’s nigh impossible to tell how good a lawyer really is. You can look on Avvo and see what people here and there may have subjectively thought about him, but that doesn’t tell you whether any other lawyer would have done as well (or been just as dissatisfying). You can ask around and get a sense of what other lawyers generally think of him, but that’s just as subjective. There’s really nothing out there to tell you for sure whether that lawyer gets better-than-average results or not.

So Wake Forest professors Ronald Wright and Ralph Peeples — to their great credit — tried to see if it could be done. In their recent paper, “Criminal Defense Lawyer Moneyball: A Demonstration Project,” they conclude that it can be done. They may even be right about that. But not from the data they gathered, sadly.

[Warning: The internet’s gonna (more…)

100%

Thursday, May 17th, 2012

The call came, as they always do, at the last minute. “I’ve been charged with a crime, and I have to be in court in two days, and my lawyer isn’t doing anything, and I’m scared.” The caller came in to meet with me in person, as they always do when they’re legitimately scared and not merely irritated or price-shopping.

Most of the time, after hearing them out, we tell such folks that it’s probably not wise to change horses in mid-stream. Much as we’d love to help them, it doesn’t sound like their present lawyer’s doing all that bad by them, and there’s not enough time for us to catch up. But once in a while, the emergency is legit, and it sounds like we might be able to help. The client signs the agreement, forks over the retainer, and we get to work. There isn’t a minute to lose.

(Before they go, however, we sometimes half-jokingly ask why they didn’t just call us first. The answers vary, but it always boils down to money. There’s nothing wrong with that — price is a legitimate concern. And our services aren’t exactly cheap. So it makes sense that we wouldn’t even be considered an option until other things suddenly became much more important. Unfortunately, people often don’t realize it until the last minute, or until it’s too late.)

There isn’t a minute to lose, and we’re going to spend the next couple of days trying to accomplish all the things that should have been done already — gathering evidence, analyzing data, speaking with prosecutors, etc. Usually, of course, the first call is to the original lawyer. Nobody likes to get those calls, but it’s usual enough in the criminal world — clients jump ship all the time for various reasons, it happens to all of us — and the lawyers are usually collegial and gracious about it.

But not this time.

This time, the lawyer was outraged. Couldn’t believe that this was happening. This wasn’t mere shock, as from a new lawyer experiencing it for the first time. It was anger and betrayal. We began to wonder if perhaps we’d mis-read the facts, and maybe this lawyer had invested a lot into this case.

That thought didn’t last long. “Can you shoot me a copy of your files?” What files? The lawyer only had the accusatory instruments. “What’s the prosecutor’s take on the case?” Who knows? The lawyer hadn’t called to ask. A few questions more, and it became obvious that zero work had been done on the case, and the client’s fears were fully justified.

Our silence must have been eloquent. The lawyer started protesting that the client couldn’t expect ass-busting in a case like this.

-=-=-=-=-

Ah. Yes. Of course. No client could expect their lawyer to be busting their ass on a routine little case.

Except that’s absolutely wrong. Clients can — and should — expect their lawyers to be out there busting there asses on every single case.

It doesn’t matter whether the client’s looking at a murder rap or a farcical summons. The lawyer’s job is to give 100% to defend that client. The client paying next to nothing gets the same level of care as the one who’s carrying your practice for the year.

That means putting in time, of course. And if one has a high-volume-lowest-fee business model, there probably isn’t any extra time for that. There’s barely enough time to just show up on the assigned court date and take whatever plea gets offered. Any more work than that would mean one has no time for taking on all the other cases required to pay the bills. So too bad, so sad, but that time is not going to be invested.

And so here’s another client who’d hired a lawyer, thinking the lawyer would protect them and defend them the way lawyers are supposed to. And instead got a lawyer who saw the client as just another routine widget to be processed through the machine. A lawyer who isn’t there to protect and defend, but to grease the wheels of the machine that destroys reputations and lives. And now the client is starting to realize that, and the client is beginning to panic. For damn good reason.

-=-=-=-=-

The lawyer didn’t end the call graciously. But it ended. And then we got to work.

Over the next couple of days we got the alleged victims’ stories from the prosecutor, fleshed out the prosecutor’s assessment of the case, located and interviewed three eyewitnesses, and helped the prosecutor dramatically reassess the case in the client’s favor. From a heinous incarceration case to essentially “go forth and sin no more.”

This is not self-congratulation. It didn’t happen because of any particular skill or ability we have. It took no brilliance whatsoever. This is precisely what would have happened anyway, had the first lawyer done his job right. Any lawyer who had bothered to take the time would probably have gotten the same result. It really was a no-brainer at the end.

No, this is not self-congratulation — this is a complaint. A complaint about lawyers who don’t feel like a particular case deserves 100%. Every case gets it. Every client deserves it. If you don’t have the time, too bad — that is not your client’s problem. Every client gets 100%. Period.

And if you don’t agree, then what the heck are you doing here?

Straight Talk

Tuesday, August 30th, 2011

 

“Why didn’t you tell me that before?”

This is not something you want your lawyer to be asking you in the middle of trial.  Or worse yet, in the cells after you’ve lost your trial.  And yet it is a perpetual ostenato heard in every criminal courthouse.  The head-shaking lament of lawyers whose own clients deprived them of the very information that could have changed the outcome of the case.

It is only human nature, of course, to minimize one’s own culpability.  Each one of us is the hero in our own story, not the villain.  If bad things are happening to you, it’s not because you did something wrong, but because you are the victim of a misunderstanding, of a vindictive lying accuser, of an overzealous prosecutor.  People start rationalizing their conduct before it even happens.  It’s just the way our brains work.  When speaking to another human being about something that might get you in trouble, it takes an almost inhuman amount of trust to be completely frank.  Even when speaking to an ally.  Even when you know that this ally needs to understand what really happened before he can help.  The urge to shade the truth, to make things sound more innocent than they really are, is always there.

It’s a simple truth.  So only a foolish lawyer ignores it.

A wise lawyer with sound judgment — the kind you want defending you — is going to be skeptical of what you tell him.  No offense.  Whether it’s your first meeting or your fiftieth, his bullshit meter is going to be turned on.

That’s because what wins cases is preparation.  Knowing the facts (and applicable law) better than the other guy.  Knowing better what happened.  Not having a more innocent-sounding story.  Facts.

When your lawyer defends you, he assesses the data in front of him to see if there are any legal arguments that might help.  He analyzes the data to see what the actual risks and opportunities are.  He bases his strategies and arguments on that data.  At trial, he weaves his stories and persuades juries with that same data.  The more — and more accurate — the data, the more he has to work with, and the more he can do for you.

This is the case even if the truth is ugly.  In fact, especially when the truth is ugly.  The more (more…)

Playing Games with Client’s Lives

Friday, January 28th, 2011

 

Criminal law is about as serious as it gets.  Our clients’ liberty, reputations, freedoms, rights, opportunities, property — and even their lives — are at risk.  What we do affects not just our clients, but their children, their parents, the victims, and the community at large.  What we do is not a game.

So why do so many defense lawyers play games?  Cute little tactics, essentially dishonest, which never work.  All it seems to do is hurt their clients.  And yet they persist.  Boggles the mind.

Our job is to minimize the penalty our clients must suffer — preferably none whatsoever.  We do that by giving prosecutors new ways of looking at the situation, by challenging the legality of evidence, by showing juries that the evidence doesn’t mean what the government says it meant, and by skillful negotiation.

We do not accomplish that by, for example, routinely filing cross-grand-jury notice in NYC without having discussed with our clients whether they’d even consider testifying in the grand jury, doing so solely for the purpose of getting a prosecutor to call, or just to jam up the prosecutor to make their life difficult.  At the very least, it pisses off the prosecutor, who is less likely to give a decent offer as a result.  An offer might be taken off the table entirely, on the grounds that nobody who thinks they’re innocent should plead to anything.  The lawyer loses credibility, is seen as basically dishonest, and so it’s harder for him to negotiate a better deal or persuade the prosecution that they might have it wrong in this case.

We do not accomplish that by making cute little arguments in court that have no chance of success, and only serve to piss off the judge.  Once again, the lawyer loses credibility, comes to be seen as dishonest, and so it’s harder to win legal arguments that actually have merit down the road.  It only does the client a disservice.

We’re not going to give a laundry list of examples.  Every courthouse has its own idiosyncrasies.  But you get the point.  There’s nothing wrong with taking advantage of rules and procedures to the client’s best advantage, but nothing is gained if that’s done in a dishonest manner.  The client actually loses.

The better practice is to be (more…)

7 Criminal Defense Lawyers to Avoid

Wednesday, April 21st, 2010

[Ed. note — this article is reprised by popular demand.]

If you are charged with a crime, the stakes couldn’t be higher. Unlike civil lawsuits, which are merely about money, criminal prosecutions are the real deal. You can lose your liberty, rights, reputation, and opportunities down the road. You can lose your life, or a substantial part of it. So you obviously want a lawyer who can do the job well.

Fortunately, the criminal defense bar is full of lawyers who are good at what they do. The vast majority do a fine job, working very hard in difficult circumstances to get the best results they can for their clients. They’re smart, dedicated, and wise.

However, there are a few out there that one might want to avoid. They fall into 7 general categories, described below. YMMV, and there may be outstanding attorneys out there who nevertheless fall into one or more of these categories. For the most part, however, these types should be retained with caution:

-=-=-

1) The Dilettante

dilettante.png

You’ve just been arrested for armed robbery. You need a lawyer, and fast. But you don’t know any lawyers. Fortunately, there’s Mr. Paper, your dad’s corporate lawyer. Your dad asks him, and Mr. Paper says he’d be happy to represent you. This is great! He’s very respected, and smart as a whip, and he’s known you since you were a baby, so you feel very comfortable hiring him.

Mr. Paper, meanwhile, is thrilled. He hasn’t seen the inside of a real courtroom since the day he was sworn in. He’d love to get a little of that real courtroom action, just for once. He’ll take a couple of hours now to bone up on criminal procedure, and learn what he needs to as it comes up. He’s a quick study, and he’s negotiated tons of very difficult business deals in his day, so how hard could it be?

Unfortunately, it’s not as easy as that. He doesn’t speak the language. He doesn’t know what the judges and clerks expect him to do and say. He won’t know what the prosecutor needs to hear. If you’re lucky, the prosecutor will recognize that your lawyer doesn’t know what he’s doing, and throw him a bone or two to prevent an ineffective-assistance-of-counsel do-over.

If you’re not so lucky, however, you’re screwed. Maybe you could have gotten off on a technicality, but Mr. Paper never realized it. Maybe you could have gotten a better plea offer, but he didn’t know how to get it. Maybe you could have won at trial, but Mr. Paper didn’t know how to prepare, couldn’t cross-examine to save his soul, and wasn’t able to get the point across to the jury. He got his jollies, and you got jail.

Identifying traits: Refers to your case as a “project.” Brags to all his friends and clients that he’s “got a criminal trial coming up.” Uses phrases like “buy-in,” “going forward” and “what’s a Mapp hearing, again?”

-=-=-

2) The True Believer

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This lawyer seems great, at first glance. She is ready to believe you didn’t do it! In fact, she’s convinced of your innocence! She’s going to fight the government tooth and nail!

The True Believer does not negotiate. Her clients are innocent. Innocent people do not plead guilty. There will be no plea here. This case is going to trial!

So far, so good, right? Maybe not. You may have noticed a certain lack of (more…)

7 Criminal Defense Lawyers to Avoid

Monday, July 20th, 2009

If you are charged with a crime, the stakes couldn’t be higher. Unlike civil lawsuits, which are merely about money, criminal prosecutions are the real deal. You can lose your liberty, rights, reputation, and opportunities down the road. You can lose your life, or a substantial part of it. So you obviously want a lawyer who can do the job well.

Fortunately, the criminal defense bar is full of lawyers who are good at what they do. The vast majority do a fine job, working very hard in difficult circumstances to get the best results they can for their clients. They’re smart, dedicated, and wise.

However, there are a few out there that one might want to avoid. They fall into 7 general categories, described below. YMMV, and there may be outstanding attorneys out there who nevertheless fall into one or more of these categories. For the most part, however, these types should be retained with caution:

-=-=-

1) The Dilettante

dilettante.png

You’ve just been arrested for armed robbery. You need a lawyer, and fast. But you don’t know any lawyers. Fortunately, there’s Mr. Paper, your dad’s corporate lawyer. Your dad asks him, and Mr. Paper says he’d be happy to represent you. This is great! He’s very respected, and smart as a whip, and he’s known you since you were a baby, so you feel very comfortable hiring him.

Mr. Paper, meanwhile, is thrilled. He hasn’t seen the inside of a real courtroom since the day he was sworn in. He’d love to get a little of that real courtroom action, just for once. He’ll take a couple of hours now to bone up on criminal procedure, and learn what he needs to as it comes up. He’s a quick study, and he’s negotiated tons of very difficult business deals in his day, so how hard could it be?

Unfortunately, it’s not as easy as that. He doesn’t speak the language. He doesn’t know what the judges and clerks expect him to do and say. He won’t know what the prosecutor needs to hear. If you’re lucky, the prosecutor will recognize that your lawyer doesn’t know what he’s doing, and throw him a bone or two to prevent an ineffective-assistance-of-counsel do-over.

If you’re not so lucky, however, you’re screwed. Maybe you could have gotten off on a technicality, but Mr. Paper never realized it. Maybe you could have gotten a better plea offer, but he didn’t know how to get it. Maybe you could have won at trial, but Mr. Paper didn’t know how to prepare, couldn’t cross-examine to save his soul, and wasn’t able to get the point across to the jury. He got his jollies, and you got jail.

Identifying traits: Refers to your case as a “project.” Brags to all his friends and clients that he’s “got a criminal trial coming up.” Uses phrases like “buy-in,” “going forward” and “what’s a Mapp hearing, again?”

-=-=-

2) The True Believer

true-believer.png

This lawyer seems great, at first glance. She is ready to believe you didn’t do it! In fact, she’s convinced of your innocence! She’s going to fight the government tooth and nail!

The True Believer does not negotiate. Her clients are innocent. Innocent people do not plead guilty. There will be no plea here. This case is going to trial!

So far, so good, right? Maybe not. You may have noticed a certain lack of objectivity here. This is the hallmark of the True Believer. She is immune to reason. She is incapable of seeing your case for what it is, flaws and all. She’s crossed the line from “zealous advocate” to “zealot.”

The True Believer has an anti-authority streak so wide, it blocks her vision: All cops are liars! All evidence is planted! All confessions are coerced! The system is corrupt! It’s just a machine that shoves innocent people into prison! It’s racist! It’s classist! It’s… you get the picture.

Her clients may feel good, knowing that she is so strongly on their side. But her clients suffer for it, in the end. Maybe there really was rock-solid evidence against them, and a conviction was practically guaranteed, but a decent plea bargain could have been negotiated. It didn’t happen, though. She’d rather take a spectacular defeat than earn a quiet victory. And now the client is slammed with a sentence that’s more severe than they could have gotten.

Or maybe the case did have weaknesses. Sometimes the evidence is flawed. Sometimes the cops do lie. Sometimes there was a rush to judgment. But who is going to believe a defense attorney who has made a career of crying wolf? Certainly not the judges and prosecutors who have put up with her antics all these years. And that’s too bad, because had she retained some credibility she might have been able to convince them to drop the case, or at least reduce it.

The True Believer is hamstrung by her belief in her client’s innocence. She is incapable of giving wise counsel, dealing with obstacles, or negotiating with the government.

The True Believer’s clients suffer worse penalties because of her. And the injustice of it all only feeds her convictions, of course. It’s so unfair! Nobody listens to the truth! It’s a conspiracy of apathy! It’s systemic racism! And so it goes…

Identifying traits: Righteous indignation. Tendency to substitute slogans for thought. Willing, if not eager, suspension of disbelief.

-=-=-

3) The Social Crusader

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Not to be confused with the True Believer, the Social Crusader is out to change the world. The system is broken, and he’s going to change it! That is a laudable goal, of course. And there are ways it can be achieved — perhaps through getting involved in politics, writing editorials, and the like. But instead of trying to persuade those who actually make the rules, he’s taken his political activism to the one place where it does more harm than good: the courtroom.

It doesn’t matter if the Social Crusader thinks that a drug crimes are punished too harshly; his client is still going to be punished according to those laws. It doesn’t matter if he thinks capital punishment is inherently cruel and unusual; his death penalty client still faces it. It doesn’t matter if he thinks the police shouldn’t be allowed to search places that the law lets them search; the evidence is still going to be admitted.

The Social Crusader wastes his time fighting the law from within, and his clients suffer dearly for it. Instead of challenging the evidence, and perhaps winning the case, he fights policy and loses. Because it’s not about right or wrong, it’s about what can be proved.

The Social Crusader also cannot negotiate. How could he even think of allowing his clients to plead guilty to something that shouldn’t even be a crime? So forget about getting a good plea bargain with this guy.

This guy simply doesn’t understand that political activism is not his job right now. His job is to get the best outcome he can for his client. One does this, not by arguing what the law ought to be, but by dealing with the law as it is. Instead, he’s living in a fantasy world, ignoring cruel reality. His client, living in real life, suffers for his lawyer’s failure to deal with it.

Identifying traits: Says things like “draconian drug laws,” “someone ought to do something about…,” “the law is an ass.” Tends not to wear suits, preferring activist chic that sends a message, an anti-suit that is just barely permissible in court. Weird hair. Doesn’t talk about you or the facts of your case much, if at all.

-=-=-

4) The Whiner

whiner.png

At first glance, this lawyer seems like she’s totally going to bat for you. She’s constantly advocating for her clients, trying to get prosecutors to make better offers. When she’s not on the phone, she’s in court making an argument. What’s not to love?

The problem is that she’s not actually making arguments. As Michael Palin put it, “an argument is an intellectual process,” and that’s not what’s happening here. Instead of saying things like “here’s why my client deserves a better offer,” the whiner resorts to “why can’t you just give him a misdemeanor?” or “aww, c’mon, can’t you give him probation?” Repeatedly. Over and over again. In every phone call. A typical conversation might go like this:

Whiner: Oh, come on, why can’t you just give him a misdemeanor?

Prosecutor: Because he sold heroin to an undercover and three others in a school zone, he doesn’t have a drug problem, and this is the third time he’s been caught doing it. He’s already had his second and third chances, and I’m not going to offer anything less than a year this time around. Now of course, I only know what the cops told me, and if there is something else I need to know that would change my mind, I’d love to hear it.

Whiner: But I don’t understand why you can’t just offer the misdemeanor!

Repeat for ten minutes.

The strategy may be simply to wear down the other side until they give in. But we’ve never seen it work. All one gets is a pissed off adversary who is entirely justified in never returning one’s calls again.

The Whiner tries the same tactics on judges, with even less success.

One would think that, after having this strategy fail time and time again, the Whiner might consider trying something new. But she doesn’t. She just whines harder.

True story: We were in court watching a pathetic performance by a Legal Aid lawyer widely known to be one of the worst Whiners. As usual, it didn’t work. Later, out in the hallway, we saw her supervisor chastising her. Really laying into her. What was the supervisor saying? “You weren’t whining enough! You need to be whining more! Why weren’t you nagging them?” And more of the same. We kid you not.

So apparently some defense attorneys are actually trained to do this. But it’s lazy, substituting persistence for advocacy. Instead of thinking or doing some actual lawyering, the Whiner just tries to wear down the opposition with entreaty and supplication. It’s not a strategy we would advise.

Identifying traits: Permanent pout or moue. Nasally voice. Puppy-dog eyes.

-=-=-

5) The Fraidy Cat

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It’s true, some lawyers really are afraid of going to trial. Maybe they have stage fright. Maybe they don’t know what to do in front of a jury, and know it. Maybe they’ve had one too many bad experiences. Whatever the reason, they’ll do anything to get out of going to trial.

That’s not a good trait for a defense attorney to have. Sure, 99% or more of criminal cases never go to trial. But nobody knows which ones are going to be the lucky few that do. As time goes on, and a case starts looking more and more like it might actually go to trial, the Fraidy Cat starts getting the urge to just take an offer — any offer.

There are two problems with that. First, some cases really do need to go to trial. Sometimes the cops got the wrong guy. Sometimes the evidence just isn’t good enough. Sometimes, people get acquitted. But nobody gets acquitted until after they’ve had a trial. And Fraidy Cats don’t go to trial, so their clients aren’t likely to get acquittals. Their clients are more likely to get counseled on the wisdom of taking a plea instead. (Now many of those clients probably should take a plea, but what about the handful who maybe shouldn’t have?)

The second problem is that criminal practice is a small world, and reputations get around. A lawyer who has a reputation for backsliding on the eve of trial is just not going to get great offers. Even in a difficult case with tricky evidence, where ordinarily a prosecutor might be willing to lower his offer to avoid the uncertainty of trial — there’s no need to do that, when everyone knows this case is never getting in front of a jury.

The Fraidy Cat is often a Whiner as well.

Identifying traits: It can be hard to differentiate a Fraidy Cat from a normal lawyer. One of the best ways is to insist at your first meeting that you won’t plea bargain, but will insist on a jury trial. And watch his eyes. If he tenses up like a cornered baby rabbit, you might consider probing further.

-=-=-

6) The Caseload Crammer

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On the whole, it’s good to be busy. More cases mean more fees, and more job satisfaction. But too many cases can be worse than too few. The Caseload Crammer has way too many cases.

Often, the Crammer is getting most or all of his fees from low-paying court-appointed work. This kind of work is fine if one is starting a new practice, or wants to supplement one’s normal caseload with some indigent work. But these cases pay very little. A lawyer who relies exclusively on them is going to need to have more than he can probably handle, just so he can eat.

A client whose lawyer has hundreds of other clients probably isn’t getting that much attention. That may not be a problem if your case is strictly routine. It may actually be a bonus, if your lawyer does thousands of cases just like yours every year. If your facts aren’t that unique, if the issues are identical to everyone else’s, and he knows what he’s doing, then it might be okay.

But what if your case isn’t the same as everyone else’s? If your case has unusual facts, unique issues or tricky questions of law… sorry, but this lawyer just doesn’t have time to deal with it effectively — if he was even able to break from routine enough to spot the issue in the first place. He just can’t afford to do the work your case requires. If he takes time away from his other cases to put in the hours your case needs, then he risks committing malpractice in those other cases. He’s more likely just to put in the minimum effort on your case.

Don’t take our word for it. This is exactly the argument that court-appointed lawyers make when they ask for higher fees: Such a lawyer needs to take on so many cases at the existing rates that he flirts with malpractice just to make a living.

Identifying traits: Malnourished. Sleepless, red eyes. Tends to recite courtroom litanies in his sleep.

-=-=-

7) The Showoff

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Here’s another one that seems fine at first glance. He seems great! After all, he told you so himself. The Showoff likes to brag and boast and bluster about how amazing he is. He may wear too-expensive suits, and unnecessarily showy jewelry. He knows everyone, as he’s sure to let you know. And he may be pretty well-known himself. In fact, one of the most dangerous places in town is any spot between him and a TV camera.

But behind the boasts, there is no substance. The Showoff is just an empty suit.

But how can you tell if someone’s just a Showoff? After all, there’s nothing wrong with bragging. We all do it, and clients like to know that they’re hiring someone with experience. And it’s good and proper to dress as well as one can. And there are plenty of well-known attorneys who have earned every bit of their fame.

The problem with the Showoff is, he just doesn’t have what it takes any more — if he ever did. He can’t live up to his own hype. He may have had the chops once, back when he was busy earning that reputation. Or maybe he just had some lucky breaks. But now he just can’t do the heavy lifting any more. You’ve been lured into thinking you’ve retained a superstar, and what you really have is nobody special.

Maybe it’s all the bragging and schmoozing and more schmoozing, so he doesn’t have the time to master the facts and issues of your case. Maybe it’s just that he’s coasting, and doesn’t realize he ought to be working harder. Whatever the reason, you’re not getting superstar representation. He doesn’t know the law like he should. He hasn’t learned the facts. He hasn’t grasped the complexities. He’s not prepared, and it shows. And that’s just deadly.

Identifying traits: Talks more about himself than about your case. Tendency to sell past the close. Slick as a phony politician.