Defending the Accused, and Herself, with Vigor, by Liz Robbins, New York Times, September 6, 2011

Defending the Accused, and Herself, with Vigor

By Liz Robbins
New York Times
September 6, 2011

http://www.nytimes.com/2011/09/06/nyregion/lawyer-for-levi-aron-defends-her-clients-and-herself.html?_r=2

Jennifer L. McCann in court with her colleague Pierre Bazile and their client, Levi Aron, who is accused of murdering and dismembering Leiby Kletzky, 8.

The death threats and hate mail, she says, have slowed, and she keeps her office door unlocked in defiance. There, Jennifer L. McCann sits behind her desk, wearing leopard print pumps, poised for an argument.

Ms. McCann chose to defend Levi Aron, a hardware clerk from Brooklyn who is accused of a crime that gripped the city this summer: the kidnapping, killing and dismembering of Leiby Kletzky, 8, who got lost walking to meet his parents in July in the Hasidic Jewish enclave of Borough Park.

“People assume I’m O.K. with a young boy being murdered because I represent the defendant,” Ms. McCann, 30, said recently in her office in Garden City, N.Y., which she opened in March after four years of practicing criminal defense law for a local firm. “To me, that’s pretty vicious. They have to understand, I’m not all right with people being murdered or with crime. I’m all right with defending constitutional rights.

“If he’s guilty, he will be convicted. And that’s it. But my God,” she added with gritted teeth, “it’s going to be legally.”

At Mr. Aron’s arraignment on Aug. 4, Ms. McCann insisted to distraught Jewish community members outside a courtroom that her client was no different from anyone accused of murder or drunken driving — he had rights. Her comparison drew gasps and angry retorts.

While legally correct, her comment seemed insensitive, according to one seasoned criminal defense lawyer. “Likening a drunk-driving offense to the slaughter of an innocent child is not an argument that is going to be received well by many,” said Joseph Tacopina, a lawyer who has been involved in several high-profile cases, including that of a former New York police officer, Kenneth Moreno, who was acquitted of raping a woman while on duty.

“There can’t be too much righteous indignation going on,” Mr. Tacopina added, suggesting that she take a softer tack with a jury. “There are some cases where you have to be sympathetic.”

Mr. Aron’s trial is months away, but already Ms. McCann has been defending herself as much as her client — to the press, on Facebook and, most recently, to the judge. Justice Neil J. Firetog of State Supreme Court, a veteran of homicide cases in Brooklyn, questioned her experience, and that of her co-counsel, Pierre Bazile, a former New York police officer who has also practiced law for four years.

Justice Firetog criticized them in a special hearing for procedural errors, and reprimanded Ms. McCann for generating public exposure and complaining when it worked against her.

Mr. Bazile, whom the Aron family hired first, brought in Ms. McCann after a more experienced lawyer, Gerard Marrone, quit, saying that as a father of three, he was sickened by the accusations.

“To sit there and say, ‘This is a hard case, I don’t want to take it?’ ” Ms. McCann said. “No, that’s for somebody else, that’s not who I am.”

Raised Catholic in a farming town in Michigan, Ms. McCann grew up idolizing Sandra Day O’Connor, the first female Supreme Court justice, and her father, Peter, a Vietnam veteran and school administrator who died of cancer when she was 12.

“She’s one tough lady, and knowing Jennifer McCann, she just won’t give up,” said Thomas F. Liotti, a Long Island defense lawyer who hired her out of law school and still advises her daily.

Ms. McCann, a graduate of Villanova University and St. John’s University School of Law, is largely unknown outside Suffolk County, where she was mostly recognized as the protegee of Mr. Liotti, known as a contentious litigator.

In 2009, she worked with him on the case of Kathleen Prisco, a Long Island woman who fatally stabbed her husband and pleaded not guilty by reason of mental disease or defect. Doctors for the defense and the state accepted that plea, negating the need for a trial, and she was sent to an institution.

Ms. McCann said the most likely strategy with Mr. Aron would be an insanity defense, considering that Mr. Aron gave the police a signed confession and the fact that he had no alibi.

Such a defense, she said, carries daunting odds, since it is almost never used in felony cases and is rarely successful when it is. Mr. Bazile declined to comment about his co-counsel.

Ms. McCann, who is now working pro bono, said she had struggled to recruit medical experts to examine Mr. Aron to determine whether such a strategy was viable.

“Some have turned it down for money, busy schedules, and one really wanted the case but he is unable to take it for political reasons because of his affiliations with institutions of higher learning,” she said.

Ms. McCann said she accepted the case because it required a lawyer “who knows what to do with these types of defenses.”

Still, as Justice Firetog pointed out, Ms. McCann’s trial experience is limited. She handled a resentencing appeal for Nathan Powell, a film producer who killed his colleague in Long Island City, Queens, in 2001, and dismembered the body. Ms. McCann had the original, lower 20-year sentence restored.

She worked on a case involving a Long Island woman, Jesenia Vega, 27, who was driving drunk after a party in 2007 when she dragged her boyfriend under her car, killing him. Ms. McCann argued that Ms. Vega was trying to defend herself from abuse. Ms. Vega pleaded guilty to second-degree manslaughter, the most serious of three charges, and was sentenced one to three years in prison.

During that case, Ms. McCann said, she received calls and threatening questions similar to those she gets now: “How do you sleep at night?”

Ms. McCann considers it her Catholic, as well as constitutional, duty to care for society’s castoffs. “You protect their rights,” she said, “even when society wants to turn on them.”

Justice Firetog has criticized Ms. McCann for discussing the case on her office’s Facebook page. With Facebook groups like “Levi Aron Deserves the Death Penalty” harassing her, Ms. McCann said she felt obligated to protect her client’s image for a potential jury pool.

In her trial preparations, she has learned about the Hasidic community in Borough Park and has also learned a new word. “Shiska,” Ms. McCann said, mispronouncing the Yiddish word, shiksa, for a non-Jewish woman.

Ms. McCann does not apologize for what she does not know. Or the profession she chose.

“This is what I do,” she said. “You kill people, you call me.”