Cross: Mario Machado, From One Court To Another
July 6, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Mario Machado, Fault Lines contributor and lead criminal defense counsel at Miami’s Avenlino J. Gonzalez, P.A.
Q. You were born in Venezuela, where your dad was a well-known pediatrician. But in 1991, your dad decided to pack up his practice and family and get out of the country before things went from bad to really bad. Chavez bad. Why? Were you fleeing, or was your dad just prescient about what was going to happen? Was there a socialist straw, and if so, when did it break the camel’s back? Were you upset about trading in paradise for Florida? From your decadent American perspective, was your dad right not to throw in with Chavez and Maduro? Does it affect your feelings about the good, ol’ US of A?
A. Prescient. That’s a perfect way to describe how my dad was when my parents packed our bags and brought me and my younger brother stateside. I arrived in Miami when I was 8 years old, 2 months before Chavez’s failed coup d’état against Carlos Andres Perez. The Perez administration was right-wing, but they were stealing everything in sight, and the atmosphere was very tense. And that’s when Chavez and his left-wing cohorts made their move.
I had a great childhood, but Venezuela was already far removed from the paradise that it was in the ‘70s and ‘80s. The crime rates were sky high, my house got robbed several times, and my parents thought that I had no real future over there. My parents were upper middle class. I had visited Miami during the ‘80s several times, and I had always loved it. So I was kinda glad to be moving to Miami. I was a bit scared, but I assimilated quickly, learned the language, and continued practicing martial arts as my sport of choice.
The Venezuelan experience teaches us that the left wingers can fuck up a country just as bad as the right wing, or vice versa. It teaches us to be skeptical of the powers that be, whatever their political affiliation. To me, both sides are full of it, and it’s better to remain unaligned to either side, which keeps you skeptical, original, independent, and unpredictable.
When I left it was bad, but it’s a gazillion times worse now. There is no food or medicine. After my dad passed, my mom visited her family in Barquisimeto (my city of birth) for a year, but just got back to Miami because life is miserable over there.
Q. Unlike most Fault Lines contributors, you were an honest-to-god college athlete, getting a scholarship to play NCAA Division II tennis at Augusta State. Two years later, you went back to Florida, where you got a double degree in economics and political science from FSU (and may have still found a little spare time to socialize). Why the change? Homesick? Tired? Couldn’t handle the microaggressions? Or were you just looking for an excuse to focus on drums? Where were you heading back then? Had you found your inner lawyer yet?
A. I just got tired of playing. Augusta was beautiful (it lives up to its nickname of “The Garden City.” Jersey should follow suit), and it was a great experience, and it meant I accomplished my mission of getting an NCAA Athletic Scholarship. Yes, it’s ironic that I would get tired after getting what I had worked towards since I was 11, but my academics were suffering and I felt I was going nowhere. Plus, I had an academic scholarship waiting for me at a Florida state school, so that made it easier. And I never cared for The Masters (I got multiple offers to attend, but never did. This tidbit always pisses off golf aficionados).
I had a great set up at FSU. My parents kept supporting me and covering my costs, and my tuition and books were part of my scholarship. I lived in a resort-style condo, where pool parties were an everyday thing. I got back to playing drums and played with a local band. I used to play alto sax as well, but that instrument didn’t fit my musical tastes. I’d like to say we sounded like Led Zeppelin, but in reality it was more like a sloppy version of Cream.
I was already thinking about law school, but obviously didn’t have a clue what it meant to be a lawyer. I thought that it just involved me getting a red Ferrari with a voluptuous blonde in the passenger seat (American dream, anyone?) right after getting my bar license. But for the time being at FSU, you would think that I was trying to play out the stuff inside Mötley Crüe’s The Dirt (which came out the year I went to FSU), minus the drugs.
By then, I had not gotten the memo that I was not in a legendary rock band, but just a college student. I had the temerity of having a full size drum kit in my living room, at a place where everyone was in close quarters, but at the time I thought I would be crazy to NOT have a drum kit in my living room. I was even thinking of looking at drum wraps for sale so the looks would match my style, or maybe the amount of noise I was making. The police were called to my place on a very regular basis for noise complaints, and to this day I don’t know how the hell I didn’t end up detained, tased, beaten, or arrested. I was not very welcoming when they would show up at my door. Today I still have a lot of fun, but I don’t even go past the speed limit when driving, because nothing good can come out of having the police looking into your affairs.
Q. In 2005, you traded in a life of teaching tennis, playing drums and hanging on the beach for Rutgers School of Law (in Camden, New Jersey, of all places). Your classmates, and even your crim law professors, thought you were [ableist slur] to give up that kind of lifestyle for the misery of law school. What made you decide that law was a better idea than tennis pro? Was it crim law from the start, or did something happen to put it on your radar? And why, why Jersey? Did you look at Miami and say to yourself, “this just isn’t squalid enough?”
A. Well, when I took the year off to teach tennis in Miami, it became obvious that I needed to do something else with my life. I’m not very bohemian in the sense that I know that at the end of the day, you will need some money to travel and enjoy yourself without hitchhiking or staying at a hostel. So in a sense, becoming a lawyer seemed like a fun way to make a good living (but I didn’t know that I still had no clue what it meant to be a lawyer). And Miami had already become what it is today, save for Coconut Grove, which is where I live: one big shopping mall populated by some of the most uninteresting people on earth. So I was ready to go somewhere else.
Rutgers was the “best” law school that would take me (expect for probably the University of Minnesota, but I’m too tall for igloos), and it was much cheaper than the local law schools. Of course, everyone at Rutgers thought I was mental for making such a move, but I lived next to Philly, where the music scene was vibrant and the food was good. Plus, I got to travel the Northeast for the first time, so that was cool. And after being exposed to some real ghettos and crime in Venezuela, I was unfazed about Camden’s reputation as being the most dangerous in the U.S.
At Rutgers, it became evident that crim law was the best fit for me, and the more I delved into it, the more I wanted. I had my first experience in a courtroom when I was in the juvenile justice clinic, and the rest is history. I fell in love. I took every course/clinic that had to do with crim law and read up on the subject to be better prepared when I went back to Miami to work.
Q. You graduated in 2008, not the best year to graduate for new lawyers. Did you feel that sense of dread like so many other 2008 graduates? Did you start working right away? How long did it take to find a job that let you use your JD? Did you sell out, have to do something vile to make ends meet? Now that you’re well past those nasty days, how bad was it?
A. I never, ever sold out, to my financial detriment at the time. To this day I’m very proud of that. What is selling out, you ask? To me in 2008, that meant going to work for a foreclosure mill or simply doing anything else besides criminal defense. I was fortunate to land a job where I had interned during my 3L summer, and I eventually became the firm’s “go-to” guy for criminal defense. My first case involved a DUI for one of the firm’s bigwig clients, and after I got a good result for him, I was hired.
And every year –no, every day — that I have worked as a defense attorney has made me better prepared, more effective. So I can imagine all the experience I would’ve lost if I had done something else for let’s say, two years, like a lot of people did. Believe it or not, most of the people that graduated with me are not working as attorneys. I know of only one other person that does criminal defense. And that is OK. Not everyone is meant to work as an attorney, let alone a criminal defense one.
Q. Now for the obligatory, (hopefully) embarrassing, first jury trial question. Were you terrified? Chill? Sweaty palms as you rose to open? One question too many on cross? Were you ready? Looking back now, were you the trial lawyer you thought you were? What, knowing what you know now, would you have done differently?
A. I actually got some trial experience before I went in front of my first jury, doing bench trials before an immigration judge (there are no juries in immigration court). I’d be lying if I said I wasn’t nervous, but what saved me from shaking like a leaf is what I inherited from my days as an athlete: always overprepare. When I was younger, I had yet to develop what my inner drugstore psychologist likes to call borderline sociopathy, hence I would get nervous during an important event (e.g., tennis tournament). So, after reading a
sports psychologist’svoodoo shaman’s book, I learned to train my ass off (run until I puked, do hundreds of practice serves) to ward off nerves. And it worked then.
So I was definitely ready as I could be, and I loved the thrill, rush, etc. Knowing what I know now, I would tell the Mario from 2009 to just breathe, relax, and to heed his former martial arts teacher’s advice: “You’re in the alley, you’ve got nowhere to run, and these punks are ready to kick your ass. Just make sure you get a good lick at the first one, and have fun from there on.”
Q. As would be expected from a criminal defense lawyer in Miami, your practice covers immigration as well. Which practice area presents the most difficult problems? What impact does a defendant being a non-resident have on your ability to fight criminal charges? Has it gotten worse since you started practicing? Did the Padilla decision help? Are immigration lawyers as bad as reputed? Are they asked to perform an impossible job?
A. Defending someone without papers raises the stakes. Example: getting the state to offer some kind of pretrial diversion program in order to drop the charges can be a victory in itself, but sometimes immigration frowns upon these programs: they see it as an implied admission of guilt/responsibility. This means that anything short of an acquittal or dismissal of the charges can cause him trouble later on when immigration gets its paws on his file.
It is always getting worse, in that they are always tightening the grip on those without immigration status, making it harder to get a driver’s license, harder to get a work permit, etc. It’s death by a thousand cuts. Padilla helped, to a point. But the fact that it is not retroactive renders it useless for a lot of people. That’s when you have to think outside the box: maybe convince the prosecutor to vacate the conviction based on the equities on each case. You do it because that’s sometimes your only recourse, but I can’t help but fell a bit icky when asking the state to do us a favor. I always have to shower afterwards.
It’s definitely more work, in that most prosecutors are clueless as to the immigration consequences and find it hard to believe that a plea to pot possession may bring this person problems. But as with any system, people are largely myopic and only care about their own agendas. Part of my job is to illuminate and convince the other side that the world is not as flat as they see it.
Immigration lawyers in general are like any other field of practice: you’ve got the criminally incompetent, the all stars, and everything in between. But most immigration lawyers would soil themselves if they had to face a criminal jury or the might of the U.S. Department of Justice. There are those who do fine work, but generally it is not the same level of intensity. Not even close.
One bonus of immigration work: you become an expert in direct examination. Your client almost always has to testify during his immigration trial (they’re called “individual hearings”), so you get a lot of practice. The same way most prosecutors are not effective in cross, most CDLs can’t do direct. This means that when I’m defending a client in a domestic violence injunction case outside of criminal court, the CDL on the other side is usually not in the same ballpark when it comes to direct. Of course, this also puts you in a good position in criminal court as well, should you have to put on any witnesses.
Q. Florida is the land of drug deals, insurance fraud and overworked cops holding back the tide of criminal insanity. Do Miami juries have a more nuanced outlook? Federal? What’s the impact of citizen’s attitudes toward drugs? Toward immigrants? Is there anything unique about trying a case before a Florida jury? Are they as insane as the general population? And what about the judges?
A. I wouldn’t say more nuanced, but I would opine that it’s easier to convince them when the government is being extra petty or overreaching. You still have to educate them, make it easier to side against the government, and to make them comfortable with letting your guy walk. And I wish that they would frown upon a parade of rats more often (which make up the majority of health care cases). But, the fact that we are all constantly surrounded by all types of big time illegality means that resources shouldn’t be wasted on the little guys.
But it varies greatly from county to county. Some of the toughest juries when you have a Hispanic client are in the Florida Keys, where everyone looks like a hungover fisherman with a permanent tan. As for the judges, generally speaking the federal ones are quicker on their feet and more competent to wear the robe. In Florida, some of the more cantankerous judges are state judges who have been elected by the general population (who by definition have no real clue on how to pick out an effective jurist). What’s worse, criminal state judges are unexpectedly shuffled between the civil, criminal, and family law courts, meaning you can get a judge with almost no experience in criminal law that was recently transferred from civil. The waters are murky, and you really have to do your homework to put your client in a good spot. I think they are all wonderful, each in their own way though :).
Q. You’ve managed to create a thriving federal practice, which is pretty unusual in a relatively new lawyer. How did that happen? Did someone give you a leg up, mentor you? How hard was it to adjust to the language, rules and culture of federal court? Not that state court is easy, but the stakes are much higher in federal court. Does it strike fear in your heart, or get your juices flowing, to walk into a federal courtroom?
A. Since my first bond hearing in federal court, it got my juices flowing. Those big marble federal courthouses, guarded by the U.S. Marshals, truly make you feel like you’re taking part in something that is a big deal. And it is, just look at the sentencing guidelines. I’ve always been a sucker for the grandiose, the bigger stages. I’ve always been a show off.
What happened is that some of the firm’s civil clients started getting federally indicted in 2009 for health care fraud and the such (e.g., structuring transactions), and it all went from there. All through word of mouth, as I’ve never had an ad or website. In south Florida’s purportedly criminal underground, word spreads fast, I guess.
I sense that there is a masochistic element to the federal criminal practice, given how high the deck is stacked against your client: no depositions, draconian sentences, and the government’s unrivaled resources and access to information. But I guess an infantryman from the front lines would give you a weird look if you pressed him on why he took on such a challenging/crazy task: he would simply tell you that is what he does/was meant to do, and he couldn’t see himself doing anything else. You gotta love tilting at windmills if you’re showing up for this gig.
Q. Immigration has proven one of your favorite topics at Fault Lines, where you’ve steered a relentlessly realist course, ignoring politics in favor of focusing on ICE’s dysfunction and whether plans for immigration reform have a chance of success. Time to out your sympathies. Where do you stand? Should we call them “illegals” or “undocumented aliens”? Does it really matter what they’re called? Do they deserve to be coddled or thrown out of the country? And does your background make it easier or harder to represent people trying to live the American Dream?
A. My background makes it easier because there is never a language barrier, and I can appreciate just how terrible some spots outside America can be. Plus, I had a close family member be without papers for over 20 years just because he pled out to possessing a dime bag during the 80s. That kind of waste and injustice is wrong on so many levels.
I’m no bleeding heart, but the term “alien” just sounds so…inhuman. Last week I was visiting a client in immigration jail, and was told I needed to wait because it was “feeding time.” Words matter, and they determine how people are treated.
I think no one should be coddled, but people should at least be given a chance to plead their case, to show why they deserve to stay here. And, if a kid beats all odds and goes throughout Central America on his own, crosses the Rio Grande while evading CBP, to then catch a bus to be reunited with his parents in south Florida, I’m sorry. He gets to stay. That kind of initiative should be rewarded.
Q. You’ve made some seriously dubious choices, like going back to Florida, then going to New Jersey, but the most curious of all was deciding to write for Fault Lines. What were you thinking? Is it everything you dreamed? How hard is it to put up with your editor? Do you thrill at the sight of a nutjob comment popping up in your inbox? Where does Mario Machado see himself in five years? Do you plan to be the fourth judge contributing to Fault Lines, maybe?
A. For reasons that I can’t fathom, you’re not the first to suggest I could be a judge someday. I was good friends with a retired judge, the Honorable Tam Wilson, for some time, who made a similar suggestion. He has since passed, and he was as close to a legal “mentor” as I ever had. But I’m not sure I will don a judge’s robe someday. I feel like I’ve got so much left to do in my career before I would consider such a move. There are way too many people that are left to piss off before I put my name on the ballot box.
Writing for Fault Lines has made me a better attorney, better informed. And the fact that I can call myself a “writer” or “contributor” is mad cool. The editor and I share a no-nonsense, intellectual approach to this project, so that always helps. I was very stoked when I got the gig, even though the first time I sat down for a post I stared at the screen and asked myself “what the hell did I just get into?” But I stuck it through, and to this day I look forward to making the world less dumb, one post at a time.