How Can You Defend Those People? : The Making of a Criminal Lawyer
Page 1
“How Can You
Defend Those
People?”
The Making of a
Criminal Lawyer
James S. Kunen
© 2011 James Simon Kunen. All rights reserved.
to the memory of
Steve Erhart, Larry Lane, and John Short,
three brave souls,
and
to Samuel and Eleanor Kunen,
my father and mother
REMEMBER THIS
BETTER THAT MANY GUILTY SHALL GO FREE RATHER THAN ONE INNOCENT SHOULD SUFFER
We find in the rules laid down by the greatest English judges, who have been the brightest of mankind, [that] we are to look upon it as more beneficial that many guilty persons should escape unpunished than one innocent person should suffer. The reason is because it is of more importance to [the] community that innocence should be protected than it is that guilt should be punished, for guilt and crimes are so frequent in the world that all of them cannot be punished, and many times they happen in such a manner that it is not of much consequence to the public whether they are punished or not. But when innocence itself is brought to the bar and condemned, especially to die, the subject will exclaim, “It is immaterial to me whether I behave well or ill, for virtue itself is no security.” And if such a sentiment as this should take place in the mind of the subject there would be an end to all security whatsoever.
—John Adams*
If you have just come from page 158, please return to page 158. Otherwise, please turn the page and continue.
ACKNOWLEDGMENTS
I wish to express my appreciation to Marjorie Grant Whiting, my landlady, without whose generosity this book could not have been written; and to Rob Cowley, my editor, for his assistance and support.
CONTENTS
Remember This
Acknowledgments
Introduction
§1-01
§1-02
§1-03
§1-04
§1-05
§1-06
§1-07
§1-08
§1-09
§1-10
§1-11
§1-12
§2-01
§2-02
§2-03
§2-04
§2-05
§3-01
§3-02
§3-03
§3-04
§3-05
§3-06
§3-07
§3-08
§3-09
§3-10
§3-11
§3-12
§3-13
§3-14
§4-01
§4-02
§4-03
§4-04
§4-05
§4-06
§4-07
§4-08
§4-09
§4-10
§4-11
§4-12
§4-13
§4-14
§4-15
§4-16
§4-17
§4-18
§4-19
§4-20
§4-21
§4-22
§4-23
§4-24
§4-25
§5-01
§5-02
§5-03
§5-04
§5-05
§5-06
§5-07
§5-08
§5-09
§5-10
§6-01
§6-02
§6-03
§6-04
§6-05
§6-06
§6-07
§6-08
§6-09
§6-10
§6-11
§6-12
§6-13
§6-14
§6-15
§6-16
§6-17
§6-18
Afterword
Notes
INTRODUCTION
“How can you defend those people?” is a question frequently put to criminal defense attorneys, often in a tone suggesting that it is not so much a question as a demand for an apology, as though a defense attorney needs to justify his work, in a way that a prosecutor doesn’t. Because the question presumes that “those people” accused of crimes are guilty, and that people who are guilty of crimes ought not to be defended, it reflects a profound misunderstanding of our criminal justice system and the defense attorney’s role in it. It is, therefore, a question that should be answered. This book attempts to answer it, by explaining the systemic function of the defense attorney and suggesting some of the personal factors that motivate, and enable, a person to perform the defender’s role.
I don’t hold myself out as an expert on either jurisprudence or trial technique. But I do know as much as anyone about becoming a defense attorney, getting to be one—and acquiring the attitudes peculiar to that line of work. After practicing as a student in New York City’s criminal court, I worked for two and a half years as a staff attorney at the Public Defender Service for the District of Columbia, where I represented about one hundred fifty clients, half of them juveniles, half adults, on charges ranging from disorderly conduct to murder. I had nine juvenile trials, seven of which ended in guilty verdicts, and ten adult jury trials, only three of which ended in guilty verdicts (five were acquittals, two were mistrials).
My clients were fairly typical of what people think of when they think of criminal defendants. They weren’t corporations, or the officers of corporations, who calculatingly sent people to their deaths in faulty automobiles; they weren’t urbane conservative intellectuals caught with a hand in the company till. They were poor people in the inner city, and they were virtually all black, because, in Washington, virtually all poor people in the inner city are black; and those who were guilty had committed crimes in the street, because they didn’t have any better place to commit them. The cases I describe are not extraordinary; they typify what goes on in criminal court every day.
The incidents I discuss are based on actual cases. Sentences in quotation marks are taken from contemporaneous notes. To protect the anonymity of my clients and avoid violating the trust they put in the confidentiality of the lawyer-client relationship, I have changed names, descriptions, places, dates, and some telltale details of certain events. The names of judges, other attorneys, witnesses, police, and investigators have also been changed, where necessary, so that there is no reference point from which even the most enterprising and perverted journalist could hope to trace the actual identity of my clients. As a result of these changes, one reads of incidents occurring at places where they did not really happen. There has, to my knowledge, for instance, never been a fatal shooting at the Bolling Air Force Base headquarters building.
The attorney’s obligation of confidentiality is a sacred obligation, honored through history, which dwarfs me and my purposes; and there would be no excuse for violating it. I have not violated it. Nonetheless, I acknowledge some misgivings about using my clients’ confidences for this book. But, for example, psychiatrists publish papers about their patients’ secret fears and dreams. If every confidence, however disguised, never left the room in which it was uttered, no one would know anything about anything.
I went into the practice of law in the first place with the idea that I’d write about it. It would have been strange for me not to have had that idea. I think of writing about everything. I’m a writer.
I am also a lawyer (in two states, no less), although in order to write this book, I resigned my job as a public defender. Let me tell you about it …
“How Can Y
ou
Defend Those
People?”
§1-01
“THE ONLY TRUE PRINCIPLE OF HUMANITY IS JUSTICE. JUSTICE IS DENIED NO ONE,” it says, the inscription carved in stone beside the north entrance to the Criminal Courts Building in Manhattan. One bright autumn morning not long ago, if you had passed those words, pushed through the famous revolving door, caught an elevator to the fourth floor, and walked down the sticky marble hallway until the cigarette butts on the floor got really thick, you’d have been at the Criminal Court, All Purpose Part 3; if you’d run your finger down the mimeographed calendar of that day’s eighty cases Scotch-taped to the wall, you’d have found my name in the “attorney” column; and if you’d walked through the pair of swinging doors, you might have seen me, the curly-haired young man in the obviously new pin-striped suit, walking down the center aisle of the courtroom, calling the name of my client-of-the-day, as usual.
It was my third “first day” in court. The alleged pickpocket who was to have been the first client of my career had missed that opportunity. A fellow accused of running a gambling enterprise, three-card monte, on a public street, Forty-second, had likewise declined to take his chances in court. They had both probably elected the “Cleveland defense,” which is asserted by boarding a bus to any city that is preoccupied with its own problems.
I paused at each wooden bench, dutiful and stoic, like a deacon with a collection plate, not really expecting much, when, suddenly, a woman touched her chest with her index finger and stood up. I had my first live client—oddly enough, a white, Jewish female, not your everyday customer in criminal court.
Judy Hoffman was a gum-cracking little eighteen-year-old in platform shoes, breathtakingly tight jeans, a slinky jersey, and pink sunglasses with a sequined star on the one lens that was not covered by her cascading brown hair. She would not have been mistaken for a Campfire Girl, but she was well within community standards of dress for criminal court. She was charged with “loitering for purposes of prostitution.”
An attorney from the Legal Aid Society, which is paid by the city to represent criminal defendants who can’t afford their own lawyers, had handled her arraignment, at which she had entered a not guilty plea. The case was then passed on to New York University Law School’s criminal law clinic, to be handled by a third-year student (me), starting with that day’s “status hearing,” the proceeding at which the parties inform the judge whether there is to be a trial or a plea.*
I deepened my voice a little and very professionally invited Ms. Hoffman to follow me to the clinic’s “interview room,” a derelict alcove in the Legal Aid office. There I explained to her some of the advantages of being represented by a law student, as opposed to a lawyer—foremost among them being that we had fewer cases, hence more time—and secured her written permission to represent her. (Only one clinic client that year refused representation, noting, “If I’m going to a real jail, I want a real lawyer.”)
I was explaining lawyer-client confidentiality and the importance of full disclosure, when Ms. Hoffman, needing no encouragement, launched into her story. She was angry.
It seems that on the night in question, after dinner at her cousin Marlene’s house, Judy and her boyfriend had driven from their native Brooklyn to the Library disco at Fifty-eighth Street and Sixth Avenue in Manhattan. Before going off to look for a parking space, her boyfriend dropped her opposite the Library; she intended to buy cigarettes and call her sister. She had completed the first errand and was standing at a pay phone, digging through her pocketbook for a dime in order to accomplish the second, when a man in a three-piece suit asked her if she knew a woman named Mary. She said no, and was about to drop a dime into the phone, when a man in a green windbreaker came up behind her and told her she was under arrest.
“What do you mean?” she said. “Are you serious?”
He was serious, and told her to hand over her pocketbook. He put her into a car and sat down beside her. “You’re a whore,” he said.
“Don’t call me that!”
His investigation of the pocketbook led to the discovery of four dollars and change, and an address book. He looked through the book. “There’s nothing here,” he said. “You got another address book?” He handed the purse to another plainclothesman as they drove to the 18th Precinct. “Here, maybe you can find something.” At the station, she was booked, fingerprinted, and locked in a cell to await the arrival of a relative.
It was hard for me to believe that the police[man-is-my-friend] would arrest a young woman for no reason at all, but Ms. Hoffman’s indignation, coupled with her lack of any prior arrests, persuaded me. Prostitutes are arrested, and fined, and released to be arrested and fined again, and again. Prostitutes without arrest records exist, but not for long—sort of like falling stars. Ms. Hoffman and I agreed that complete vindication was the only acceptable disposition of her case.
We made our way back down the piss-stained stairs to the courtroom, where we waited, and waited, and waited for the clerk to call our case.
The court reminded me of a package express terminal. Each defendant was a package. The prosecutor and defense counsel were shipping clerks, who argued perfunctorily over where the package should be shipped, then accepted the determination of the black-robed dispatcher. Papers were stamped and tossed in a wire basket. The package was removed. The next package was brought in.
Finally, after three and a half of the most boring hours of my life—up to that point—our case was called. Drawing shallow breaths, sweat trickling down my ribs, I strode forward, lifted and replaced the maroon felt rope dividing what now seemed like the pews from what now seemed like the altar, and approached the judge, a thin-lipped, bull-necked tough guy who looked like he smoked Camels at both ends.
“Let’s get rid of this,” the judge said. “Plead her guilty, and I’ll let her go with a fine.”
“She’s not guilty, Your Honor.”
The judge did not appear to hear me. The D.A. rolled his eyes.
“All right,” the judge continued. “I’ll take a disorderly conduct.”
“No. She won’t plead to anything,” I insisted.
“C’mon,” the judge said. “She has to plead to something—a dis con, no fine, she can walk out of here right now.”
Things seemed to be going against me. Then I was seized by inspiration. “But Your Honor,” I whispered intently, my eyes blazing into his, “she’s not a prostitute.”
“She’s not?”
“No, Your Honor, she’s not.”
“Oh well, in that case, she can go. Case dismissed.”
My legal career’s happy start was ascribable in part to my passion for justice, in part to my gift for the felicitous phrase, and in the remaining ninety-eight parts to luck. I had been able to make reference—“She’s not a prostitute”—to the world outside the courtroom, where Ms. Hoffman either was or was not a prostitute, depending upon what she did for money; as opposed to the world of the courtroom, where she was either guilty or not guilty of being a prostitute, depending upon the evidence that the prosecution would be able to introduce. In doing so, I was, all unwitting, “playing up the justice angle,” a tactic to which, I now know, one may not often have recourse.
§1-02
I had joined the NYU criminal law clinic because one of its instructors, Clint Levine, told me to.
I had already signed up for the juvenile court clinic when I encountered the strangely persuasive Mr. Levine as we waited for an elevator in the law school’s marble and wood lobby. He appeared to be in his mid-thirties, with tousled red hair, rumpled tweed clothes, and a slightly mad pop to his eyes.
“What’s this I hear about you taking the juvenile court clinic?” he asked, cocking his head to one side and gazing at me in amazement.
I didn’t even know the man, but I felt compelled to explain myself. “I signed up for juvenile court because I used to work with delinquents as a counselor, and now I’d like to see what I could do for them
as a lawyer.”
Levine grabbed my shoulder and turned me into his sights. “That clinic’s a waste of time,” he said. “The criminal clinic is the class of the clinics. It’s the one for you. Sign up for the criminal clinic—that’s what you want to do.” He followed this pronouncement with a prolonged stare, his bulging eyeballs gyroscopically stationary as he solemnly nodded yes, yes, yes.
I switched to the criminal clinic.
In contrast to the rest of the law school, the clinic was anything but academic. Rather than study the evolution of the principles of criminal law, we briskly familiarized ourselves with “the rules of playing ball in this particular ballpark,” as Levine put it, and concentrated on developing “advocacy skills”—how to interview a client, conduct an investigation, negotiate with a prosecutor, examine a witness—things that lawyers do.
We spent the first two weeks learning to ask unambiguous questions:
“When you first saw the suspect, how far was the suspect from the front door of the bank?”
“How far were you from the front door of the bank when you first saw the suspect?”
“What was the suspect doing when you first saw him?”
“And what were you doing as the suspect was firing at you?”
The idea was to place everything precisely in space and time—always a challenge. We practiced asking questions for about forty hours. We took turns playing the roles of D.A., witness, defense attorney, judge. We watched others do it. We watched ourselves do it on TV. We dreamed about it.
Then we were thrown into court—the shallow end, misdemeanors, but well over our heads, all the same.
§1-03
Arguably, all criminals are losers, for their line of work involves periodic incarceration as a cost of doing business. Most people find this cost utterly unacceptable when weighed against the rewards of the criminal trade, and therefore choose other job options. One would expect, therefore, that those who are professional criminals must have no attractive career alternatives, and this is generally the case. (“You can be on welfare, you can sell drugs, or you can steal,” one drug salesman told me.) Criminals are uneducated and unskilled.* Society has no use for them, nor they for it.