by Ian Graham
UNBILLABLE HOURS
A TRUE STORY
Ian Graham
Every saint has a past
and every sinner has a future.
—Oscar Wilde
CONTENTS
Introduction
1. I’m Going to Prison
2. Make Me an Offer
3. Welcome Back
4. Baby Sharks
5. Monkey Scribe
6. Murder in the Barrio
7. Dreams of Freedom
8. God Boxed Me In
9. Right to Counsel
10. Denied
11. You’re Going to Save His Life
12. You’ll Do Fine
13. Nice to Meet You
14. These Deficiencies Have Cost Me
15. Strike Two
16. As Good As It Gets
17. A Lengthy Process
18. What’s This?
19. A Strongly Worded Decision
20. A Good Question
Acknowledgments
Postscript
INTRODUCTION
AT A TIME when I thought I knew what I wanted, but still had a lot to learn, I became a lawyer. And it was my good luck to land my first job out of law school at Latham & Watkins, one of the world’s largest and most prestigious law firms.
This book is an account of my five years as an associate at Latham in Los Angeles. It is not a novel. But because it was written by a lawyer, a few caveats are in order.
Latham & Watkins is a real law firm. Mario Rocha, Sister Janet Harris, and Bob Long are real people. Those are their names, and the case that bound us together happened the way it is described here. A lot of the testimony and dialogue come directly from court transcripts. Some other conversations are from memory, mine and other people’s, and so are necessarily approximations, accurate, I believe, in content and tone.
Mario Rocha’s case built up a huge public file as it was argued back and forth in at least eight courtrooms over twelve years. The case received a lot of press and was the subject of an award-winning documentary film, Mario’s Story.* Many people on all sides — prosecutors, defendants, witnesses, defense attorneys — have already been identified publicly with the case. Their real names are used here also.
Some back stories are told here for the first time though, and some people in them have not been prominently or publicly identified before. For several of them, their names and nicknames have been changed and their identities obscured for various reasons.
Because this story takes place in a law firm, to protect clients’ privacy and confidentiality the identities of cases and clients and have been disguised by changing case names and facts. Some attorneys’ names have been changed also. The tedium, stress, and personal interactions involved are portrayed realistically. In a few instances, the timing of incidents has been compressed or modified slightly in the interest of making a long story a little shorter.
Finally, while parts of this book reflect the frustration, discouragement, and insecurity of a young attorney’s work, I would like to emphasize that I believe Latham & Watkins to be one of the finest law firms in the world. Nothing I say here is intended to criticize Latham specifically. It was simply the nature of big firm law practice that didn’t agree with me. But they paid me well for it.
It was Latham, after all, that took on Mario’s case when no one else would, invested millions of dollars in attorney time and expenses in it, and stayed with it for eight years, even when at times it looked hopeless. The case didn’t earn Latham a cent, but it changed my life.
Ian Graham
Santa Monica, California
October 2009
__________________
*Mario’s Story, produced by Susan Koch and directed by Susan Koch and Jeff Werner, won the audience award for best documentary at the 2006 Los Angeles Film Festival. www.mariostory.org
CHAPTER 1
I’m Going to Prison
CALIPATRIA STATE PRISON, AUGUST 2005
THREADING MY WAY east along the 10 Freeway toward downtown Los Angeles early on a Wednesday morning, I knew what was waiting in my office. A senior partner on the forty-fourth floor was expecting a draft of a demurrer motion I’d promised him by midday. Another partner, on forty-two, wanted to talk to me “urgently” about a new insurance defense case he was staffing. I had interrogatories to answer in an employment case and deposition prep to do for a toxic tort case that was starting on Monday. But approaching downtown, I didn’t take the Sixth Street exit, which led to the associates’ parking garage across from my office building. Instead, I stayed straight on the 10, heading east toward Palm Springs and beyond, my knuckles frozen white on the wheel.
In the passenger seat next to me the papers were stacked a foot high, a constant reminder of what lay ahead. I couldn’t stop glancing over, wishing I’d put them out of sight — as if that would have made a difference. With each glance, my throat tightened and my right foot pressed down a little harder on the accelerator, pushing my new Range Rover past ninety on the California interstate.
I was on my way to the maximum-security Calipatria State Prison to deliver a coded note from a person on the outside, a veteran of the California prison system with influence inside the walls, clearing my client, Mario Rocha, of blame for something I had written. The handwritten note, concealed among hundreds of pages of meaningless legal cases, was serious contraband. If I got caught with it, I could be arrested and probably disbarred. I could lose my job, my career, and my new house in Santa Monica.
And Mario could be murdered in prison in a matter of days.
Even if I succeeded today, Mario would spend the rest of his life in prison unless I could get his conviction overturned. At the age of sixteen, he had been convicted as an adult for a murder he had not committed. He was serving a double life sentence with no possibility of parole. At twenty-five, a couple of years younger than me, Mario had been in prison for nine years. Overturning his conviction was, at best, a ten-thousand-to-one long shot.
Why am I doing this? I thought. This is way outside my job description. As a fourth-year associate at the ultra-white-shoe law firm of Latham & Watkins, I spent most of my time grinding out motions and memos for Fortune 500 companies, movie studios, and professional sports franchises in mega-million-dollar litigation. And while the firm encouraged associates like me to work on unpaid pro bono cases as a way to get hands-on legal experience and serve the community, my mission today was not exactly what the firm had in mind. Latham had recently warned me that my billable hours were low compared with those of other associates and that failure to fix this “would negatively affect my future at the firm.”
For a few miles, I began to panic. I should turn around. I should go back to the office. I should get my billable work done.
Somewhere past Palm Springs, with the Salton Sea shimmering in the distance, I was finally able to start putting my thoughts together. I had focused blindly on winning, my way, in the latest habeas corpus petition I had filed for Mario. Believing I had found a legal silver bullet, I’d made a big — and very possibly fatal — mistake.
I had cited evidence I’d recently discovered in police files that another teenager from LA’s Latino barrio, a gang member called “Joker,” might have done the crime instead of Mario. And I had ignored the inmates’ unbreakable code of silence.
In my last visit to Calipatria, Mario had warned me about what could happen if I pointed a finger at Joker. “He’s in here with me,” Mario had whispered, “and you can’t bring his name into this, he’s connected.”
But I had pressed Mario about the police report implicating Joker. This might be our last chance to get him a new trial, and this was important information. I promise
d to emphasize that I’d found the evidence pointing to Joker in public police files, and that it had not come from Mario. I argued that no one inside the prison except Mario would ever see my petition. All Mario would say was, “I’m not saying anything more about this.”
On my own, I had described the police report in a footnote and added that it had come from a public source. I was a young lawyer, zealously representing my client, as the Canons of Legal Ethics say an attorney should. But I didn’t know prisons. In a maximum-security prison there are no secrets among inmates and no exceptions to their code. Snitching — informing on another inmate — is a cardinal sin. Snitches are killed. Through the invisible web of the prison system, other inmates had seen the petition and word had spread on the prison grapevine that Mario had snitched.
Twice, Mario had been attacked, stabbed, and nearly killed. The next attack would likely be fatal. And it was my fault.
I’d asked the prison to put Mario into protective custody, but Mario had refused. “Protective custody is for snitches and child molesters,” he scolded me. In tense, roundabout whispers over the phone, I learned what had to be done: I had to present evidence to a person on the outside who had influence among the Mexican inmates inside the prison that Mario had not snitched and that I had found and used the evidence against Joker on my own.
For a week, I worked as usual from nine to nine on billable law firm business. And then I went home and worked into the morning hours drafting a long letter to a person I didn’t know, the veteran of the California prison system with connections on the inside, explaining that Mario had not snitched and that the evidence pointing to Joker had come from public police files. I attached to my letter a copy of the police report that had identified Joker, along with the transcript of every statement Mario had made to the police. Through go-betweens, my letter and attachments found their way to the right person.
A week later, a response made its way back to me in the form of a handwritten note, called a “kite,” or “wila” in prison slang. In Spanish, and in code that its addressees would understand, the note said that Mario had not snitched and that the attacks against him were unjustified.
I had assumed that one of Mario’s family members would deliver the note to him. But family visits weren’t allowed until the following weekend and this couldn’t wait. Besides, I was told, guards monitor family visits more closely than those of attorneys. So it fell to me to get the note to Mario without getting arrested, disbarred, and disgraced. This wasn’t about billing hours. It was about saving a life.
CALIPATRIA, A RAMSHACKLE town of seven thousand in the El Centro Desert, near the spot where the state lines of California and Arizona touch the border of Mexico, is desolate by any standard. It is in one of the poorest counties in California. The leading businesses are a pesticide plant, a slaughterhouse, and the super-max prison. An acrid smell of rotten milk hangs over the whole area. Calipatria’s main claim to fame is that it is the lowest-lying city in the Western Hemisphere; besides the prison, its chief attraction is a 184-foot flagpole whose top reaches sea level. The prison packs in 4,200 inmates, twice its design capacity. It’s the place where Angelo Buono, “the Hillside Strangler,” was found dead in his cell in 2002.
I spotted the guard tower first, tall and ominous in the distance. Soon a high chain-link fence, topped with concertina wire, ran parallel along the highway on my left. It was almost 11:00 A.M. by the time I slowed my car to a crawl, took a deep breath, and turned left into the prison’s main entrance. A newly tarred asphalt road led to the visitor and staff parking lot. I parked next to a big black pickup truck, its body lifted high above the wheels, with a bumper sticker that read, KILL ’EM ALL, LET GOD SORT ’EM OUT. The truck belonged, I presumed, to one of the prison guards.
It was at least 110 degrees. I could feel the hot asphalt through my shoes as I walked across the parking lot to the building where visitors checked in, lugging my stack of papers in my big litigation briefcase. A blast of cool air hit me as I walked inside. The guard at the desk wasn’t busy, but he ignored me as long as he could, a not-so-subtle statement that I was on his turf.
“You’re here for Rocha?” he finally asked.
I nodded, forcing a smile.
“You been here before?”
I nodded again.
Familiar with the drill, I placed my bar card and driver’s license on the counter, deposited my watch, keys, and cell phone in a small locker against the wall, and stood with my arms out as the guard waved a metal detector over me.
“What’s in the case?” he asked.
“Just some legal papers — cases and notes” I replied too quickly, opening the top of the briefcase to show him.
Then he handed me the standard form that visitors sign. In large print, it said that, by signing it, I was swearing that I was not bringing into the prison any contraband, including “any gang-related writings, drawings or other unauthorized communications.” I stared at those words for a long moment, forgetting that the guard was watching and that my hesitation might look suspicious. At last I signed in a shaky hand. I was now committed irrevocably.
A massive guard with an angry scowl, a large sidearm, and a billy club that looked as though it had seen its fair share of action, unlocked a door at the rear of the room and waved me through. The door led to a small outdoor area, enclosed by a chain-link fence, between the reception building and the prison’s outer wall. I stood there facing the massive steel door that led through the thick stone wall. After a few seconds, a buzzer sounded and the door slowly slid open and then closed with a clank behind me. I found myself standing on the long road that encircles the prison. A scowling guard sat facing me in a golf cart, its roof shading him from the sun.
“See that big red D outside those doors down there?” he said, nodding toward a building at least a hundred yards down the road. “That’s where you’re headed. I’ll meet you there.”
With that, he sped off in his cart, leaving me to walk the length of a football field carrying my briefcase in the 110-degree heat. I walked slowly. It was too hot to move any other way.
My shirt was soaked through by the time I reached the doors to Building D, where the guard sat waiting in the shade of his cart. Silently, he unlocked the doors and led me into the visiting room and then to a seat in front of a small cubicle. I sat down facing a wire-reinforced glass partition between me and an empty chair on the other side.
“Wait here,” the guard commanded as he took a seat against the wall twenty feet away.
It’s amazing how long five minutes can seem. The air-conditioning hissed to a halt and sweat dripped from my forehead as I pulled the stack of papers out of my briefcase. I placed them on the counter in front of me, looking quickly to make sure the note was still concealed, and then stared through the glass at the empty chair.
At last Mario appeared on the other side of the partition, shackled at his wrists and ankles, shuffling across the floor in a dark blue prison jumpsuit. He looked thin compared to his usually broad, prison-lean, and buffed frame. There were stitches over his left eye. As he sat down, a guard on his side of the partition unlocked his handcuffs and disappeared from sight.
Mario and I picked up the phones on either side of the glass and tried to make small talk. It was beyond awkward. We both knew the only reason I was there was to pass him the note, but we had to make this look like a regular attorney visit.
“How are you doing?” I stammered, feeling ridiculous at asking the question: he was in the prison infirmary after having been almost stabbed to death.
“Good. I’m good,” Mario replied, equally absurdly. “You wanna see the scars?”
Not really.
But I nodded, since we had to talk about something. Mario stood up and lifted his shirt. Big, ugly, red scars crossed his abdomen and punctuated his chest. He pointed to the front and back of his shoulder, where the blade had gone clear through. For an instant I was embarrassed, sitting in a prison staring at a man’s bare to
rso, but those scars also shocked me back to the realization of why I was there. Mario could have been dead, and he soon might be unless we pulled this off.
After twenty more minutes spent talking in generalities about his case, it was time. I stood up, turned to the guard, and told him we were done but that I had some legal papers to pass to Mario. The guard walked over, still scowling. I handed him the stack of pages containing the contraband note.
“Any staples or paper clips?”
“No. It’s just some cases with some notes I made.”
My heart was pounding so hard I had trouble keeping my balance as the guard began flipping through the pages. He was looking too closely. Not page by page, but close enough to find the note. I felt my face flush and looked away, pretending to scratch my shoulder with my chin so he couldn’t see the naked fear on my face.
As he reached the last third of the pages — exactly where the note was hidden — he paused.
“What’s this?”
CHAPTER 2
Make Me an Offer
SIX YEARS EARLIER,
AUSTIN, TEXAS, SEPTEMBER 1999
“SO TELL ME why you want to be a lawyer?” asked the pale, heavy-set law firm partner sitting across the desk from me.
I don’t, really. I’m here for the summer job I heard about where you pay me $2,500 a week to eat shrimp cocktail and drink beer.
That would have been the truth. Fortunately, the law school career services office had provided me with a better response to such a question, filled with all the right buzzwords, as a kind of survival guide for interviewees. So I told the pasty lawyer something about my passion for the law, with all its intellectual challenges, mental stimulation, and competition: just what I wanted in my career. Hearing myself speak, I felt like an ass. I didn’t believe any of it. This guy probably heard the same line from everyone he interviewed. He couldn’t really be buying this crap, could he?
