|
Merkle for the Defense
By Bob Andelman
(Originally written in November 1989 for Florida
Business/Tampa Bay; also published the same year in the Orlando
Sentinel Sunday magazine.)
The man who stared down Panamanian strongman Manuel Noriega,
the man who sent Colombian drug lord Carlos Lehder to prison,
the man who challenged Connie Mack for the Republican nomination
to the U.S. Senate-yes, Bob "Mad Dog" Merkle-couldn't
turn on a telephone.
He'd never before seen a phone that ran on batteries. The
federal government didn't buy 'em that way.
That wasn't Merkle's only problem in setting up his first
business since running a lemonade stand as a kid. There was all
that governmental red tape, all the bureaus to visit and license
fees to be paid. For a man who had spent his entire career in
government, it was an eye-opening experience being on the other
side.
Until he could afford a secretary, Merkle did his own typing.
He rented office space within another law firm until he could
get on his feet. Merkle only had two phones-one in his office
and one for a parade of temporary secretaries. That left his
partner, Joe Magri, in the cold. When someone called for Magri,
he'd have to use Merkle's phone and Merkle would have to wait
outside the office.
Then there was the problem of research. Unable to afford their
own law library, Merkle and Magri had to spend nights and weekends
looking up cases in the Pinellas County Courthouse law library.
"It was inconvenient as hell," says Merkle. "It's
very inefficient having to leave your office, especially when
you're the only one there. You go downtown, look for a parking
space then find you don't have any change for the meter."
Merkle's notoriety didn't help; everyone he ran into wondered
why the infamous attorney was doing his own searches through
the stacks.
When they finally bought their own statutes, Merkle and Magri
discovered a new problem: no room in their makeshift office for
book shelves. So the lawyers took out the indexes and had to
leave the rest of the books in boxes. To find something, whole
cartons would have to be shuffled.
"It's one of those things you look back fondly on,"
says Magri, "and thank God it didn't last long."
Welcome to the world of private lawyering, former federal
prosecutor style.
Among modern U.S. attorneys, only New York-based Rudolph Giuliani
enjoyed more renown and infamy in the 1980s than Bob "Mad
Dog" Merkle. While Giuliani played the game of federal prosecutor
in a bigger arena, there are many similarities between him and
Merkle, including national television profiles in 1987-Giuliani
on ABC's "20/20," Merkle on CBS's "60 Minutes"-and
the failure of both to leapfrog from appointed to elected office.
(Giuliani wanted to be mayor of New York in '89; Merkle chased
the role of U.S. Senator in '88). Now both face at least the
immediate future in private practice.
From 1982 to 1988, Merkle went after the biggest fish in the
sea of 32 counties making up the Middle District of Florida.
His office's cases never failed to make headlines: the corruption
trials of members of the Hillsborough County Commission and Nelson
Italiano, a once-prominent figure in Hillsborough County Democratic
politics; drug indictments brought against Lehder, Noriega and
ex-baseball star Denny McLain; perjury charges against State
Rep. Elvin Martinez; investigation of former Hillsborough State
Attorney E.J. Salcines; and the prosecution of plastic surgeon
Dr. Dale B. Dubin on child-pornography charges.
"We didn't win all the cases, but nobody does,"
says Merkle. "It was claimed I only went after Democrats,
that I only went after lawyers-depending on whose ox was being
gored, that defined 'the problem with Merkle.' If there's a rap
there, it was that I went after everybody. Nobody was above the
law."
Merkle was the first U.S. attorney to successfully extradite
and prosecute a member of Colombia's feared Medellin Cartel.
The life sentence drug lord Carlos Lehder received in 1988 was
a precursor of the bloody civil war that has since wracked Colombia.
When he won, Merkle lavished compliments upon the American
legal system, judge and jurors. When he lost, Merkle explained
it away by saying the jurors and judge didn't understand the
case.
Along the way, many respected voices called for his firing,
including Florida Governor Bob Martinez (cross-examined by Merkle
in the Italiano case), Barry Cohen (Salcines' attorney), a majority
of Florida's sheriffs, the Tampa Tribune and the St. Petersburg
Times. Senators Bob Graham and Lawton Chiles were openly critical
of Merkle. (The Times eventually recommended Merkle over Connie
Mack in the Senate primary; he refused to accept.)
Clearly, not everyone will be rooting for Merkle to succeed
in private practice. Not Tampa attorney Barry Cohen, who sought
Merkle's removal from office with a full-page newspaper ad and
petition campaign after the U.S. attorney's three-year, public
investigation of Cohen;s client, E.J. Salcines, damaged the former
Hillsborough State Attorney's reputation. Merkle never brought
charges against Salcines, but all the negative publicity probably
costing Salcines re-election.
Although Cohen declined comment for Florida Business, he did
describe to Morley Safer of "60 Minutes" what he called
Merkle's "McCarthy mentality." On the nationally broadcast
television program, Cohen accused Merkle of " ... inducing
people to tell untruths ... threatening people that they'll be
indicted if they don't tell you what you want to hear so that
you can manipulate the facts ... telling witnesses that you'd
better testify in a particular way."
Merkle and Magri have both had run-ins with Cohen over the
years. They say Cohen is an expert at trying cases in the media.
"Barry Cohen is a good defense attorney in that he knows
how to utilize the media," says Magri. "He gives talks
on how to use the media to help defend a case." Cohen used
a Florida Bar seminar in October as a forum to criticize Pinellas-Pasco
Chief Assistant State Attorney Richard Mensch for prosecuting
chiropractor William LaTorre as a way of getting back at Cohen
for winning a drug case.
After leaving office, Merkle continued to lose friends and
influence enemies. He called his former boss, Attorney General
Edwin Meese III, a liar and described Connie Mack and Bob Martinez
as a "dynamic duo of sleaze." When Mack refused to
debate him, Merkle traveled the state with a lifesize representation
of Mack, which he dubbed "Cardboard Connie."
Whatever his faults, the sleepy-eyed, sharp-tongued Merkle
has never been dull.
* * *
Merkle, a graduate of Notre Dame and reserve fullback on the
football team in 1964, spent 17 years in professional law enforcement
as a trial attorney for the U.S. Department of Justice and as
an assistant state attorney in Pinellas County for the Sixth
Judicial Circuit before being recommended by then-Senator Paula
Hawkins to be U.S. Attorney for the Middle District of Florida
in 1982. Merkle left office in mid-1988 to challenge Connie Mack
for the Republican nomination for the U.S. Senate, which Mack
later won.
After the campaign, Merkle set about finding a job to feed
his wife Angela and their nine children. He set up an independent
law office in downtown Clearwater and, at age 45, began competing
for the first time for clients.
Merkle has done his best to make the setting of private law
as similar to public work as possible. He took on his former
chief assistant, Joe Magri, as equal partner and hired his former
secretary, Dot Bunger, as office manager. Also joining the firm
from the U.S. Attorney's office was Ward Meythaler, who spent
five years as an assistant under Merkle; Jeff Albinson spent
five years as an assistant state attorney in Pinellas County;
Robert Persante, a nationally ranked chess player, folded his
sole practitioner office in Tampa to sign on; Dayra Morales is
the freshman member of Merkle & Magri, having just graduated
University of Florida Law School.
The Merkle & Magri team goes back to a time shortly after
Merkle's appointment by Ronald Reagan in 1982. "I met him
at a party that my law firm threw on Capitol Hill," recalls
Magri. An uncle of Merkle's was a partner in Cummings and Lockwood,
the firm where Magri worked. "We got talking about doing
some prosecutions and it really sounded good to me. And he liked
to play golf."
Over the years, a good working relationship developed into
a deep friendship and respect between the two men. "We complement
each other well," says Merkle. "There are certain talents
he has and certain talents I have that mesh. It's a very good
relationship."
Magri, 41, was promoted to acting U.S. attorney when Merkle
left office in June 1988 to run for the Republican senate nomination
vs. Connie Mack. Less than six weeks later, then-U.S. Attorney
General Ed Meese announced Robert Genzman of Orlando would be
the new U.S. attorney for the middle district of Florida. The
announcement may have been timed to embarrass Merkle just days
before the Republican Senate primary; Merkle has said he had
an understanding with Meese that Magri would be his permanent
successor. Had he known otherwise, Merkle has publicly suggested,
he might not have left office. (Magri served as acting U.S. attorney
until early 1989.)
"We've been about as close as two lawyers could be in
terms of our working relationship over seven years," says
Magri. "I have a great deal of respect for his ethics, his
approach to the law. He's a very aggressive lawyer. He fights
very hard for his position. I think he's an exceptional lawyer."
There are enough rooms with a Rocky Point waterfront view
for five more attorneys in the spacious, 11th-floor Waterford
Plaza law offices of Merkle & Magri. There is plenty of work
to go around; Merkle himself is likely to surpassed his $70,000
federal salary in the firm's first year of business. "I
wouldn't commit myself to significant salaries if I didn't have
the work to support it," he says. Then, adds Merkle with
a twinkling eye on the bottom line, "That's a fundamental
business decision."
One of the advantages to private practice for an attorney
with Merkle's celebrity status is that it draws in all kinds
of people with unusual problems. That is also the chief drawback
of being Bob Merkle, P.A.
"I get people who, frankly, are nuts," he says.
"I had one guy who claimed he was the past owner of Amtrak,
Yankee Stadium and the Skyway Bridge. This was a conspiracy to
involve all sorts of people. I didn't accept him as a client.
I used to get these people at the U.S. Attorney's office but
I had a screening process where we could file a letter in the
nut file and let it go.
"I spend an awful lot of time talking to people who have
no intention, no wherewithal to hire me. They're looking for
emotional support, free advice."
Then there are clients operating under what might be called
"Mad Dog Fever," which Merkle says has been spread
by defense attorneys and newspaper reporters. The "Mad Dog"
nickname began in his assistant state attorney days when he took
on unwinnable cases and won them.
"My clients have hired me," says Merkle, "because
they perceived I was the meanest, nastiest sonuvabitch in the
valley. They feel, 'I don't like you, but I want you as my attorney.'
They perceive that I can walk in, wave a wand and they get what
they want. But that's not the way the system works."
Merkle insists he's no frothing wild animal; it's not practical.
"I have always been in total control of myself in the courtroom.
The image of a mad dog is certainly a repugnant image for a lawyer
to have. A mad dog foams at the mouth and attacks everything
in a mindless fashion." The image has been built out of
proportion but he hesitates to reject it entirely. "The
good side is the way it was coined. It connotes tenacity and
fearlessness. The irony is that that fiction hasn't hurt my business,"
he says. "But there's another side of that. Sometimes when
I walk into a courtroom, a judge who hasn't met me operates on
the same principle."
Joe Magri is the perfect partner for Bob Merkle: he's used
to standing in the "Mad Dog's" shadow. For seven years
of federal prosecutions-successful or not-it was "Merkle
this, Merkle that." Guys like Magri and Meythaler worked
just as hard but in relative anonymity. "Joe Magri deserves
every bit as much credit as I do for what we did at the U.S.
attorney's office," says Merkle.
In the private sector, the magnetism of Merkle's name will
be a mixed blessing. It will keep Magri in the shadows but probably
make him a rich man.
"I don't consider that a real issue," says Magri.
"If you want to talk about it from a business standpoint,
an attorney that has the ability to attract attention generally
attracts cases. That's very good. That's what we're here for.
If things go well for me and Bob does well, I'm going to be happy.
What's important is that the firm do well. If that results in
Bob Merkle gaining publicity or continuing what he has, that's
something we should embrace."
* * *
The days of chasing corrupt county commissioners and drug
lords are over.
Bob Merkle has made a conscious decision to generally refuse
criminal cases. He doesn't want to belittle a long career of
criminal prosecution by switching sides to defend drug dealers.
Instead, he has chosen the more dignified civil arena, specializing
in lender-liability, environmental and land-use litigation.
"There are obviously differences," he says. "But
there are some fundamental things that remain the same. A hearing
is a hearing. A deposition is a deposition. The law is the law.
Clients come to me because there's the prospect of real litigation
experience."
Merkle says he's not ruling out criminal defense work entirely,
but he is unlikely to accept it unless "there is a situation
where I can work to further both the client's interests and the
government's interests at the same time. (Otherwise) it would
be an abrupt and unacceptable jolt from what I've been committed
to for my entire professional career. That's a prospect when
I'm using my skills to defend people who are otherwise guilty.
I will not do drug work. I happen to have a personal experience
in which I have a very high anti-drug profile. I don't want to
be in the position where I get people off as a routine manner
of the way I work. I'm aware of the recidivism rate. I've known
lawyers who've represented criminals and gotten them off. I don't
feel comfortable in using my talents to get these people off.
Why should I be a mouthpiece for the Mob? Why should I be in-house
counsel for a drug organization, insuring their people get back
on the street?"
George Tragos was a chief assistant under Merkle at the U.S.
attorney's office; like Merkle, Tragos also put in time at the
state attorney's office. But when Tragos left the federal prosecution
business, he had no trouble working for the other side.
"I made the transition from prosecuting criminals to
defending criminals," says Tragos. "I've done it twice.
I just wake up one morning and see the Constitution from the
other side. I see words I never saw before. I enjoy practicing
law and I enjoy trying cases. I don't care if I'm prosecuting
or defending.
"Bob-his personality didn't allow him to make that transition,"
according to Tragos. "He's a person that didn't feel psychologically
he could defend criminals. Some people can, some people can't.
(Merkle) has a very negative idea of criminal defense lawyers.
If you're talking political ambition, representing drug smugglers
and criminals doesn't get you a lot of votes. He's doing the
right thing not tarnishing his image as a crimebuster."
Tragos believes that the different directions he and Merkle
have taken has been largely responsible for the end of their
social contacts. But, notes Tragos, "In the civil work I've
done, some of the people I've met have been bigger crooks than
in criminal."
Denis M. de Vlaming is another former assistant state attorney
who turned the tables on the system and now makes his living
as a criminal defense specialist. He expects Merkle's aggressive
style and tactics will be preferred by a certain type of client
and that the former prosecutor will do very well in private practice.
"I admire him for not accepting criminal cases,"
says de Vlaming. "I'm sure Mr. Merkle could win six-figure
fees for drug dealer cases."
de Vlaming says he once had a client who had been charged
with three different burglaries. The man was acquitted of the
first two charges. This occurred when Bob Merkle was an assistant
state attorney. "The third time, Merkle came in and said,
'You're not winning this one,'" recalls de Vlaming. "Judge
Fred Bryson has since said it was one of the most enjoyable cases
he ever had. We went after each other, nose to nose. And he topped
me. He did a good job."
* * *
Attorneys who have spent a portion of their careers in public
service say there are a number of differences between working
for Uncle Sam and Joe Shmo.
For one thing, there's money. When you work for Uncle Sam,
he pays all the bills no matter what the cost and whether or
not he can cover the debt. That's important when a Carlos Lehder
can pay a reported $2.5 million for his defense. And there's
a regular paycheck to depend on, utility bills are paid and plenty
of No. 2 pencils and yellow legal pads. In the case of Merkle
and Magri, there were also 47 assistant U.S. attorneys to share
the work load.
Joe Shmo, on the other hand, won't necessarily pay his bill
on time. He'll pay it late if he can and it's no fun for a dignified
attorney to chase down deadbeat clients. And if the firm doesn't
get paid, there's no blank check from the government to keep
the wheels turning. It's a quick lesson in business for lawyers
who haven't had to worry about such details in government service.
"When you're a U.S. attorney," says Merkle, "you're
here for the United States. You have a client who exists, from
a certain perspective, in the abstract. When you are a private
lawyer, you find out how many problems there are out in the world
and how many there are that can't be solved."
When you're with the government, you're 100 percent lawyer.
But when you're in private practice, you're 50 percent lawyer
and 50 percent businessman. And the business responsibilities
can really get out of hand.
"If you open an office and make lots of money, it's easy.
If you're not making money, you have to budget," says George
Tragos. "I can't operate at a deficit as the U.S. Government
does. Nobody ever said, 'You can't do this drug smuggling (case)
because we can't afford it.'"
For attorneys who plan to stay in business and prosper-perhaps
even drop a shoe in the political arena-there is an even broader
agenda to be considered in private practice.
"You become very conscious of not just your role in a
given piece of litigation," says Joseph Donahey, a partner
in Clearwater-based Tanney, Forde, Donahey, Eno and Tanney, "but
the practice you see over many years, the relationships you have
with colleagues, the relationships you have with the bench. Your
approach is different. When you're a prosecutor, you're not beholden
to anybody. You can approach each case in any manner you choose."
There is also the growing issue of attorneys who make campaign
contributions to judges. Merkle supports blind trusts for judges
or judicial candidates so that the influence of law firms making
large financial contributions could not give a hint of judicial
impropriety. "I guarantee you'll see contributions go down,"
says Merkle. "I'm not going to indulge in the practice I've
heard other lawyers do-routinely contributing to incumbents on
the bench. Somebody may get their nose bent out of shape by my
saying there are incompetents on the bench. But there are incompetents
on the bench."
A potential drawback for a Bob Merkle-type attorney shifting
gears is the distinct lack of limelight surrounding most lawyer's
everyday affairs.
"One of the things you really have to develop a means
of handling is the hum-drum routine of all our lives," says
Joe Donahey. "I'm looking at a mound of work. I have the
same commitment to each of these files yet there's probably only
two that that any challenge or any meaningful legal interest."
Not every case, in other words, is a international drug cartel
or politician with his fingers in the cookie jar. The average
lawyer rarely makes headlines.
Spending time on the government payroll has been lucrative
for many people who earn huge consulting fees, write books or
end up as partners in nationally respected law firms. Some simply
add marquee value; some bring real insight.
George Tragos has says when Bob Merkle was appointed to be
U.S. attorney, the two discussed Tragos' joining the team. Tragos
told Merkle he couldn't afford the pay cut but ultimately used
his savings to maintain the lifestyle which he had become accustomed
to as a high-price lawyer. "It was worth it," says
Tragos in retrospect. "I made contacts all over the country.
Now my business is 60 percent federal."
* * *
There are many stories floating around that reinforce the
"Mad Dog" nickname Merkle earned as a young buck coming
up through James Russell's Pinellas County State Attorney's office
in the '70s..
"Bob Merkle in the courtroom was like a linebacker bursting
through the line," says Denis M. de Vlaming. "He's
extremely intense, almost physically imposing. When he argued,
he would walk right up to you and argue. Almost to the point
of intimidation so his opponent cowers. It's a style that's only
his.
"I went snow skiing in Vermont with him one year. I don't
know if I'd go again," says de Vlaming. "He has to
go faster than you, he has to go further than you. He has to
beat you at everything. We had an argument over dinner. He always
has to be right. He carries over that competitive aggressiveness
into every aspect of life."
"The guy is an excellent trial lawyer," says George
Tragos. "But if I see him in an airport-as well as we know
each other-I have to say hello first. He's not personable. That's
just the way he is. But I like him.
"You have two schools of thought," says Tragos.
"There's people who really hate the guy. And there's people
who think he's the greatest thing since sliced bread. I think
he did more good than bad. The people-they got their money's
worth with him. Not everything he did turned out right, but on
balance, he did more good than bad."
* * *
Is Bob Merkle merely on hiatus from public office? When he
does run again, will it be for governor?
"Ah," he answers, "the old question-resting-on-a-presumption
trick."
Those who know him best expect the "Mad Dog" to
slip his leash again and run for office after feathering his
private practice with a layer of cash insulation. "I personally
think he'll run for public office again," says George Tragos.
"I don't think he can be happy so far out of the limelight.
I don't think money motivates him."
Joe Magri-who knows exactly what his partner's plans are-is
cagier about making predictions.
"One of the important things in life," says Bob
Merkle's law partner, "is that people who are doing that
which they want to do tend to be the most happy and productive
in life. If you spend the time swimming against your emotional
current, you achieve less. I think it's important for people
to maintain the options that exist."
If he does run again, Merkle will have to plan his next campaign
better than his first, which began with just 70 days to go before
the primary. (Connie Mack had been beating the hustings for more
than a year.) The first campaign cost a remarkably paltry $70,000
but ate up Merkle's federal retirement, money he lent to the
campaign and another loan he is still paying off. But he has
no regrets.
"It was an ad lib effort, an amateurish campaign by necessity.
It was fun in that regard. I think I performed pretty credibly,"
says Merkle.
Not surprisingly, Merkle isn't ready to tip his hand. He certainly
won't rule out another shot at election-"it depends on a
lot of things," he says, then adds, "I have no intention
of running for governor.
"I don't have much patience with people who say, 'You
have to run for governor.' I say, 'Oh, yeah? Who's going to feed
my kids?' I didn't see anybody in October (after he lost the
senate primary) offering to give me a hand. Not a soul. Bitter?
No. Practical? Yes. I've been approached many times. I say, get
real. Don't talk ideals or how great I'd be. Talk the language.
Talk about what I need to be an effective candidate. I'm a pretty
tough, resilient guy. I was going 24 hours a day in that campaign.
I'd be willing to do it again. But there's got to be a germ of
success. I'm not going to be somebody's spear-carrier. There
should be enough people now that know I'm a credible candidate."
end
©2000,
All rights reserved. No portion may be reproduced without the
express written permission of the author.
Free Andelmania E-Newsletter!
Want to hear the latest about the Andelmans? Join
our mailing list!
You'll get updates about the family and professional news, too.
Enter your email address below, then click the 'Join List' button:
|