Unbillable Hours: A True Story

by Ian Graham

  WINNING AT THE evidentiary hearing was still a long shot. But it was no longer a “no shot.” “We’ve climbed the first mountain!” Steve shouted.

  That Sunday morning in Highland Park, Father Michael Kennedy invited members of his mostly Latino congregation at the Dolores Mission Catholic Church to come forward, say a few words, and receive a special prayer. This was not unusual at LA churches. At some, parishioners asked for prayers to help heal a sick pet or calm their anxiety over getting a child into the college of his or her choice. At the Dolores Mission, Father Kennedy asked the mothers with incarcerated sons to come forward so that his congregation could pray for them. A long line of worried-looking women approached the front of the modest church and, one by one, spoke the name of a son and the prison where he was being held. After each, Father Kennedy led the congregation: “Oiganos, Señor” (“Hear us, O Lord”).

  Virginia Rocha was last in line, and by the time her turn came she was almost in tears. “Por mi hijo Mario Rocha, que esta en Calipatria…” Virginia trailed off as the congregation murmured its prayers and Father Kennedy added in conclusion, “Pidiendo a la Virgin de Guadaloupe que les protegen sus hijos como las madres que sufren y lloren con sus propios hijos, les benedigan este Domingo” (“Praying that the Virgin of Guadalupe protects her sons and the mothers who suffer and cry over their sons, bless them this Sunday”). Father Kennedy paused as Virginia returned to her seat, and then he continued in Spanish: “We have some good news for those who know Virginia, Mario’s mother… Her son just received news that they have agreed to hear his case — how do you say — ‘on appeal.’ Less than 1 percent of cases like this are accepted. So it’s very good news and let’s give a big round of applause to Mario’s mother.” The congregation burst into applause and well-wishers patted Virginia on the shoulder as she wiped tears of joy from her eyes. Sister Janet sat beaming beside her.

  That afternoon, the Rocha family — cousins, aunts, uncles, nieces, nephews — gathered for a celebration that lasted well into the evening. Food and drink were plentiful, and spirits were high. At one point, as the children played in the backyard, the rest of the family gathered in the cramped living room to listen to David, Mario’s cousin and close friend, ceremoniously read the Court of Appeal’s order:

  “On Habeas Corpus, good cause showing, therefore, the People of the State of California are hereby ordered to show cause in the matter of In Re Mario Rocha…”

  David explained the significance of the legalese. “This means he’s going to get a hearing! They say this is like finding a needle in a haystack. This almost never happens!” The family then stood in a circle holding hands and prayed, led by Mario’s maternal grandmother, the matriarch of the family.

  ON MONDAY, I was in the war room eagerly organizing the files for Mario’s case when Steve walked in. He was moving slowly, which was unusual for him, and his head slumped down to his shoulders. He didn’t say anything as he sank into a chair across the conference room table from me. We sat there in awkward silence for a moment.

  “Something wrong?” I finally asked.

  “I’m leaving the firm,” he said without looking up.

  “What!?” For a second I thought he was kidding, but the look on his face told me this wasn’t a joke. “Why?”

  It didn’t look as if the firm would be making any litigation partners in LA, and he had been encouraged to move to the New York office for a better shot.

  I didn’t know how to respond. Steve and I weren’t exactly friends, and it felt strange to find him so vulnerable, but I could see how hard this was for him. I’d heard that it was becoming more and more difficult for associates to make partner these days. “It used to be that if you worked hard, billed your hours, did great work, and paid your dues for eight years, you made partner,” a mid-level associate I was friendly with explained to me. “Now the partners who made partner in those days don’t want to share the equity pot of gold unless they absolutely have to. The new standard for making partner is ‘Can the firm live without you?’ and the answer is invariably yes.” Still, how could they pass up Steve? He lived for the firm. He billed 2,500 hours a year. And he was a great lawyer.

  “That’s crazy, Steve. I’m sorry.” And I was. He was a pain to work for, but I respected, even admired, his skill and dedication as a lawyer. “What are you going to do?”

  “I’ve got a house here, a new baby. I’m not moving. I’ve already got an offer to be a partner at another firm. I’m taking it.”

  We sat in silence for another minute. Finally, he lifted his head and looked at me for the first time.

  “So, do you think you’re ready?”

  “Ready for what?”

  “Ready to take over the case — Mario’s case.”

  I shot a panicked glance at him. I was a first-year whose legal experience up to that point consisted primarily of reviewing documents. Yes, I had been working part-time on Mario’s case for six months, but I had been mostly in the back rooms doing research and writing drafts for Steve. I didn’t know the supervising partner, Bob Long, I didn’t know Mario, and I had never written a final draft ready for filing. The idea that I could competently take over for a hard-charging eighth-year associate on a life-and-death case heading for trial was nuts. But it was too late. Steve waved a hand at me dismissively.

  “You’ll do fine. I told Bob I thought you could handle it,” he said.

  “Christ, Steve. What did Bob say?”

  “He’s not very happy. But…”

  “No shit he’s not happy! I’m a first-year associate. I’ve never even met him.” Another dismissive wave from Steve.

  “If you commit to it, you’ll be fine. But there is going to be a ton of work to do to get ready for the hearing. It might take 50 percent of your time over the next year.”

  “Is that okay? Am I going to get in trouble for spending that much time on a pro bono case?”

  “Not if you win.”

  “And if we lose?”

  A smile crept across Steve’s face.

  “Then you can come see me for a job.”

  CHAPTER 13

  Nice to Meet You

  LOS ANGELES, CALIPATRIA, JANUARY 2003

  MY SECRETARY, DEBBIE, scrambled from her desk and hustled to intercept me in the hallway outside my office.

  “Where have you been?” she asked nervously.

  “Lunch, why?”

  “Your phone has been ringing off the hook. I let the first few go to voicemail but…” She paused to consult her notes. “In the past five minutes, a woman named Sister Janet called and she sounded pretty upset.”

  “Okay.”

  “A reporter from the Daily Journal called. Said she has been following the Rocha case and wants to speak with you.”

  “Strange, but okay.”

  “And Bob Long just called. He wants you to call him ASAP.”

  I felt my stomach tighten. “Thanks,” I mumbled, and scurried into my office.

  It had been only a little more than an hour since my conversation with Steve Newman. My head was still spinning. I had figured I would be hearing from Bob Long soon, but I’d hoped to have some time to put my thoughts together. After my initial shock at the news of Steve’s departure, I realized this was an opportunity for me. It was a chance to have a real role on an interesting case that was heading for trial. A chance to be involved in higher-level legal work — trial preparation and strategy — and to work directly with a senior partner, without Steve Newman barking in my ear constantly. The only remaining hurdle was to convince Bob Long that I was up to the task, that he could trust me to handle the work and responsibility of being the lead associate on the case.

  I took a deep breath and dialed Long’s extension.

  “Bob Long,” he answered.

  “Bob, hi, it’s Ian Graham. Sorry I missed your call, I was just out grabbing lunch and…”

  “No problem. Good to speak with you finally. Listen, I think it’s about time we met.”

&
nbsp; Among the floors at Latham, the forty-fourth had by far the highest concentration of heavy-hitter partners. As I circled the floor, I passed the offices of Teddy McMillan, a senior partner in the Litigation Department; Elaine Sherman, the LA office managing partner; and Stanton Pell, the Corporate Department’s biggest rainmaker who, I’d heard, is chauffeured to work every day so he can start billing even before he walks in the door. Finally, I spotted Long’s office. His door was open, but I knocked anyway.

  “Hey there! Come on in,” he said, standing up to shake my hand. “Good to finally put a face with the name.” Bob was disarmingly friendly. And tall — six-three, I guessed. He seemed so relaxed and good-natured that I couldn’t help wonder, what’s the catch?

  His office was huge and well kept. On his large oak desk were well-organized stacks of deposition transcripts and legal briefs. A round oak table with a few chairs stood in one corner, next to matching built-in cabinets. Along the back wall was a stylish, expensive-looking couch. Degrees, awards, and artwork hung on the walls, and among the bookshelves behind his desk were pictures of his wife and sons and framed press clippings from a few of his major trial victories.

  “Have a seat,” he said, motioning to a chair across from his desk. I noticed a copy of my résumé sitting in his in-box.

  “First of all, I want to thank you for all the work you’ve done on this case,” Bob began. “That brief you put together with Steve was a powerful piece of work.”

  “Thanks.” Whatever displeasure he felt about Steve Newman’s departure, apparently he wasn’t intending to take it out on me.

  He looked at me for a few seconds. “So, what else are you working on these days?”

  I responded instinctively, trying to sound busy, the way associates do when asked that question by partners.

  “I’m on the Wolf Partners IPO, so that’s keeping me pretty busy. I’m doing a diligence project, and…”

  I thought I was sounding pretty good, but Bob’s face suddenly contorted as if I had emitted a foul odor.

  “You’re Corporate?” he asked.

  “No, no,” I said, realizing my mistake. At the bottom level, associate work, whether corporate or litigation, is pretty much the same: “Look at these documents and take notes.” But up a little higher, the delineation is clear and important. Corporate associates are familiar with deal documents and the legal issues they involve. Litigation associates know the rules of civil procedure, the various stages of litigation and corresponding motions to be drafted and filed. I had essentially just admitted to Bob that I didn’t know a complaint from a hole in the ground. “That’s just what I’ve been assigned so far,” I sputtered, trying to cover myself. “I’m also working on a healthcare case with John Oliver and have done a few other litigation assignments. I want to do litigation and I plan on joining the department after next year.”

  “Well, good,” he said firmly. “To tell you the truth, I’ve got no idea what those corporate lawyers do all day. I think we’ve got something here considerably more interesting to do than looking at documents.”

  He took a deep breath and leaned back in his chair. “I suppose you’ve heard about Steve?”

  “Yes, he told me this morning. It’s too bad.”

  Bob’s face contorted again. “Well, that’s his business, I suppose,” he muttered. “We’ve certainly got our work cut out for us on this case. The first thing I think we need to look into is the process we’re dealing with. What happens next? What kind of schedule are we looking at? What are the rules governing an evidentiary hearing? What is the framework here?”

  I was busy scribbling his instructions on my legal pad when I realized, hey, I already know this stuff. This was my chance to make a good impression.

  “I’ve done some work on this already,” I interrupted. “The DA’s office has sixty days to file their response to our brief, called a ‘return,’ I believe. We then have sixty days to respond to the return. After that, the hearing will be scheduled. Although the underlying case is criminal, the hearing is a civil proceeding, and the rules of evidence apply. We can present witnesses, and we have to prove our case by a preponderance of the evidence. There is no jury, just the judge.”

  Long didn’t say anything for a moment, but I took it as a good sign that he didn’t make a face.

  “Well, we’re not just going to sit on our butts waiting for the DA’s response,” he said. “I need to get myself up to speed on this case. It would be helpful if you could put together a chronology of all the relevant events in this case for me, and start making witness binders for every witness who testified at the trial, including their testimony and any other statements they made to police, investigators, or anyone.”

  “Sure,” I said. “I’ll get right on it. Anything else?”

  He thought for a moment. “Yes. I think you should pay Mario a visit as soon as possible. Introduce yourself, and explain to him what you just told me about the process going forward so he knows what to expect.”

  “Okay. Will do.”

  “Just be careful to manage his expectations. I’m guessing he’s pretty jazzed about all of this. He needs to understand that the odds are still quite long here.”

  CALIPATRIA IS A 230-mile drive from Los Angeles, as far away as one can get and still be in Southern California. The state prison’s litigation coordinator had told me I could meet with Mario from one to two o’clock on a Wednesday afternoon. Considering that I would be hitting the LA rush-hour traffic on the way back, it would definitely be an all-day trip, which was a disaster. Adam Greene’s IPO was finally inching toward closing, and he had issued an “all hands on deck” call for that week. Mike Wilke, Jon Davies, and I were supposed to be across the street at the printer 24/7, ready to make sure any last-minute changes to the prospectus were made, proofread, and included correctly in the final printed version.

  I broke the news to Greene on Monday, two days before my trip to Calipatria. Luckily, when I told him I needed to be out of the office on Wednesday “to meet with a client,” he was screaming at someone on a conference call and was too busy to argue. He rolled his eyes, pressed the mute button on his phone, and offered me a deal: “If you can give me an all-nighter tonight through tomorrow, and all night Thursday, then fine.”

  “Deal,” I said.

  The night before my trip to meet Mario, I slept fitfully, even though I had pulled an all-nighter and then worked until midnight. I’d never been to a prison, let alone a super-max out in the desert; and I’d never talked to an inmate, let alone a lifer. By all accounts, Mario was bright and courteous. His only chance for freedom was now largely in my hands. Would he trust me? Could we bridge the differences in our backgrounds and experiences? How awkward would it be, really?

  After the prison guards guided me through the security procedures, I first met Mario in the large cafeteria-like room at the Calipatria prison that is used for family visits on weekends. It was a Wednesday and there were no other attorneys visiting, so we had the room to ourselves. Mario sat waiting on a plastic chair at a table in the center of the room when I arrived. Six feet tall and powerfully built, with black-rimmed glasses, a thin moustache, and a shaved head, he was leaner, less pudgy, and more adult-looking than in his pictures. He was dressed in a blue prison jumpsuit and was unshackled. He stood and looked me in the eye.

  “Nice to meet you, Ian,” he said politely.

  I was nervous. Among other firsts, Mario was the first client I had ever met, and I wanted to make a good impression. Steve had told me that Mario liked to read the case opinions we cited as legal authority in his habeas petitions, so I had brought with me copies of all the cases included in the last petition. Mario accepted them graciously, and then said with a smile that he had already read most of them.

  Whatever Mario thought of me, I was quickly impressed by him. As I explained the Strickland standard for ineffective assistance of counsel that we would have to satisfy, and the procedures and rules for the hearing, I thought I might b
e getting too technical and that maybe I was talking over his head. This wasn’t easy stuff for anyone to understand. But Mario followed it easily, picking up complex legal concepts, peppering me with on-point questions about different elements of our case, and offering perceptive strategy suggestions for the upcoming hearing. He was obviously very bright, articulate, and steady.

  Our allotted hour was almost over when I came to the final item on my list. While I was reviewing the police “Murder Book,” a statement one witness had given to the police had jumped out at me. This witness had told the police that he had seen three Highland Park gang members involved in the fight: Mario’s two co-defendants, Guzman (Pee Wee) and Rivera (Cartoon) and a third man the witness identified by his gang moniker, “Joker.” This was a strong piece of evidence. If there had been three gang members involved in the shootings — the prosecution’s claim and the basis for Mario’s conviction — then the third shooter was more likely to have been Joker than Mario. But, curiously, the police had not done any follow-up investigation of the witness’s statement and had made no effort to investigate Joker’s involvement. Everyone — police, witness Matthew Padilla, the DA’s office, prosecutor Bobby Grace, and the jury — had focused instead on Mario as the phantom third shooter.

  When I asked Mario if he knew a Highland Park gang member called Joker, he paused and his expression grew serious. Then he leaned forward and whispered.

  “Yes, I know Joker, and I know why you are asking. But he is in here with me, and you can’t bring his name into this case. He is connected.”

  I didn’t know exactly what Mario meant by “connected,” but I had heard stories about prison gangs, and the tone of Mario’s voice told me I should drop it and move on, which I did — for the time being.

  Cruising back to Santa Monica, with the sun setting to my left, I felt our meeting had gone well. Mario had made a big impression on me. I was about his age, but in every other way our lives could hardly have been more different. I had arrived at Latham, the big, prestigious law firm, from an affluent neighborhood in Washington, D.C., an elite Quaker high school, Rice University on a baseball scholarship, and the University of Texas Law School, from which, thanks to my parents, I had graduated debt-free. I had pursued a career motivated solely by money, and never given much thought to broader issues of social justice. Mario was at least as bright as I was, very possibly more so. His heart was generous, his interests were wide, and his gift for writing was formidable. But he had grown up in the LA barrio, without the opportunities, benefits, and second chances of a privileged upbringing. I wondered how I would have fared growing up in his world, and he in mine.