Just then Clint walked in. Someone asked him what he would do in the hypothetical situation where your client tells you the jury is in the bag.
“You can’t discuss moral issues in a vacuum,” Clint said. “You need a factual basis. If there were jury tampering, you’d never know about it unless you were the kind of lawyer who was in on it from the git-go.”
As for the situation with Ries, Clint said he thought everything worked out fine. “Ries was going to lose anyway. Why drag McDaniel down with him? Ries is the one who got McDaniel involved in the crime, and Ries is the one who was stupid enough to get caught with the stolen bottles of liquor. When Ries decided to plead guilty, he made the right decision.”
But what about the fact he was beaten up?
“The fight didn’t coerce him,” Clint explained. “It caused him to reconsider his position, and he did, and he came to the right decision. People get angry. They fight. This is human life we’re dealing with.”
§1-07
I was doing great. I was really rolling.
After six months in the clinic, I was starting to feel like a lawyer, although I’d never had a trial. My clients didn’t need trials. We won big in plea bargaining.
Abdul Dhabour (formerly Earl Johnson), a slight, young black man in white robes and a turban, had been selling incense and handing out literature on Forty-second Street near Times Square, for the benefit of his mosque. The way he told it, he was talking with a “brother” who had made a donation, when a cop named Mike and his partner told him to “Move it!”
“Mike pushed me into an alley. I was scared they’d kill me,” Abdul recounted, his gold earring flickering in the fluorescent light of our interview room. “But the brother followed. Mike took the incense out of the brother’s hand and put it in mine. He said, ‘Give him his money back.’ So I did. Mike pushed the brother away. Then he slapped me in the mouth. The big one jabbed me in the stomach with his stick. I said I was sorry.
“They told me to leave and keep off Forty-second Street. But out on the street, I saw my mouth was bleeding, and I got mad. I told them they had no right. A crowd gathered, and Mike grabbed me and said, ‘You are under arrest.’ Mike and the other cop took me into a pizza shop and called a car. While we were waiting, Mike hit me once or twice. He said, ‘You’re a smartass fucker, a scumbag with a dress on!’ They put me in a car and drove me down the West Side Highway to the precinct. They beat me with a club on the way. I was taken to court. I pleaded not guilty. And they told me to come back today.”
Abdul was charged with harassment, disturbing the peace, and resisting arrest. He wanted to plead guilty and get it over with, which was all right with me, if that’s what he wanted, but it wasn’t all right with Maggie Bensfield, my clinic supervisor. She led us out into the corridor, into the haze of cigarette smoke curling under the yellowed fluorescent fixtures. The clickety-clack of hookers’ heels echoed down the hall like train wheels on a track.
“The cops had no right to beat you up, and you had every right to pass out your literature,” Maggie said, sounding angry at Abdul. “If you plead guilty, the cops’ll think they’re the Kings of Forty-second Street, and they can do what they want with you. But if you stand up and fight, maybe they’ll lay off you.”
Abdul thought possibly the opposite would happen, that the cops would really “get on his case” if he made them come into court; but he thought most likely the cops would be totally unaffected by anything that happened in court, and life on Forty-second Street would go on as before.
After Maggie’s pep talk Abdul still wanted to cop a plea, but he did agree, seemingly to please Maggie, that if his guilty plea was going to carry a fine, then that would be too much to bear, and he’d fight the case.
I explained to him that if he pled guilty, he’d have to do an allocution, “admitting” the allegations on the record—yes, I punched the cop; yes, I did this; yes, I did that.
“Yeah, sure, I’ll do that,” he said with a shrug. For him this was no problem, because he never had any expectation of justice. He wasn’t looking for justice. The court was to him a sham from beginning to end, and he was ready to play along so he could get out as quickly as possible.
Before the judge took the bench, I went up to the assistant D.A., Larry Giannotto, a tall, skinny guy, moustached, hippish looking—a reasonable man, from whom I’d gotten good dispositions before.
“Let’s clear up the congested court calendar,” I said. “This case is complete bullshit. This is the First Amendment.”
When I mentioned the First Amendment, Giannotto looked at me as though I had just farted, loudly.
“Give me an A.C.D.,”* I said.
Giannotto replied that the complaint alleged that my client had been fighting with someone when the cops arrived. He said he wouldn’t give me the A.C.D. if there’d been fighting. He wanted a guilty plea to harassment in exchange for dropping the more serious charge, resisting arrest.
“One thing for you to consider,” I suggested, “is that the group he belongs to is a pacifist group, and if he engaged in fighting, they’d take away his turban.” A little denigration of the client sometimes helps.
Just then I remembered that I’d spent two hours the day before looking up cases. I sat down in the front row of the court and went over them, picking out a few that I would mention. I’d been thinking that I tended to talk like a tobacco auctioneer to judges, because I felt as though they were looking at a clock above and behind my head, and that they gave me about one minute, which was, in fact, the case. But that day I decided I was going to speak slowly and deliberately, and I was going to say everything I had to say, and that was all there was to it.
Our case was called. I approached the bench with the D.A. I didn’t wait for him to say anything, nor did I say anything to him.
I put on my phone company voice—gentle but firm, patient but almost at the end of patience—and addressed the maternal figure of the judge. “Your Honor, I cannot in good conscience recommend to my client that he accept anything more than an A.C.D. He’s charged with harassment. Harassment means annoying someone to the point where that person is likely to respond violently. Whom did he harass? Mr. Dhabour belongs to a disciplined pacifist mosque and would be expelled if he engaged in fighting, and, in fact, if you’ll look at his record, you’ll see that he hasn’t been in any trouble during the years that he’s been a member of that mosque, except four years ago he put a slug into a token machine.”
“And was convicted of assault for that?” the judge interjected.
My heart sank; maybe I hadn’t looked at his record closely enough. But I checked it and explained, “The assault was six years ago, Your Honor.” She nodded, and I continued. “Now, Your Honor, I could cite chapter and verse, but that would be redundant. You know the law.” I said that to make time to look down my list of cases, which I think the judge could see upside down was a list of cases, and I began reading from it. “Your Honor, as I’m sure that of course you know, vulgar language directed solely at a police officer does not constitute disturbance of the peace. Disturbance of the peace has to be an annoyance of a substantial segment of the public. And the mere collection of a small crowd on Forty-second Street, where the sidewalk is twenty feet wide—that isn’t disturbance of the peace.
“This case involves a systematic and continuing pattern of harassment of this group as they attempt to exercise their First Amendment rights. And as for resisting arrest, not holding out your hands to be cuffed as you’re being placed under an unauthorized, illegal arrest is not resisting arrest.”
And so forth.
The judge, who’d been nodding silently as she listened, asked the D.A., “What is your position?” And the D.A. said, to my surprise and delight, “We are willing to offer an A.C.D.”
As I was shaking Abdul’s hand, Maggie came out and demanded, “How did you do that?”
First of all, I was insistent. That was the way it had to be. I would accept nothing else. In t
his case, the judge and the D.A. probably thought, “If it’s that important to you, okay,” because they didn’t care about it that much. But it’s amazing what can be accomplished by sheer will. Call it “the Levine effect.” I once saw a judge rule certain evidence admissible, and Clint Levine walked up to the bench, and literally laid his hands on the judge, and said, “No, We’re not going to do that, Judge. We’re not going to let that in.” And the judge changed his ruling.
My other technique was to cram into that two-minute talk (and two minutes is an eternity, talking up at a harried judge)—I was a real spellbinder, that day—cram into those two minutes as many buzzwords as I possibly could. It’s like playing pinball. A buzzword is a hit. First Amendment context B-ding! Continuing pattern of harassment B-ding! B-ding! Chicka-chicka-chicka-chicka. Arbitrary and discriminatory B-ding! Client is employed B-ding! B-ding! Chicka-chicka-chicka BONG! Free game.
That day I was a real pinball wizard. And Abdul Dhabour was the happier for it.
I remember thinking as I left the courtroom, “I love this. I feel terrific. I’m going to have to remember this for the next time I feel terrible.”
§1-08
The next time I felt terrible was a few days later, as I was sitting in the NYU law library trying to write a brief for the Carney case, one of the two felony cases I was working on with Clint Levine.
Carney had been charged with felony-murder, under a statute which holds that every participant in a felony can be found guilty of murder if anyone is killed in the course of the commission of the felony.
Carney, like many a wrongdoer, did what he did because he felt he had been wronged. He got a friend to hold up Carney’s neighbor, who, Carney felt, owed him eighty-five dollars. Unbeknownst to Carney, who was keeping watch outside the neighbor’s apartment house while his friend lay in wait inside, his friend was carrying a gun, and killed the man with it.
Carney’s original lawyer, whom we’d replaced, didn’t explain to him that he had a defense to felony-murder if he did not know or have reason to know that his friend was armed. So Carney, thinking that he had no defense, pled guilty and was sentenced to a minimum of fifteen years, and a maximum of life, in prison.
Carney escaped and made his way to Indiana, where he married and started a family. After three years someone informed on him, and he was apprehended. He was convicted of escaping from prison, and sentenced to two years, which would run concurrently with the fifteen-year murder sentence. At twenty-seven, his second life was over.
Fifty friends, neighbors, co-workers, and employers from Indiana wrote the New York authorities pleading for Carney’s release. “A man so good can’t possibly be so bad,” one writer noted. Apparently, besides caring for his own family, Carney made a practice of feeding and sheltering hitch-hikers and drifters.
“I thought only hippies and eccentric billionaires did that,” I said to Levine.
“And saints,” Levine said.
“Now there’s a defense: ‘But Your Honor, my client is a saint!’”
“It’s hard to prove,” Levine said.
In fact, Carney was just a hapless little white guy. He didn’t have anything that could be called an opinion about anything—he didn’t know enough. He just lived from day to day. He used to think that the Jews had done him in, and he asked for a non-Jewish lawyer, but he got us, and he got over it.
We were trying to get his guilty plea vacated so he could have a trial on the murder charge. (He’d have to do the two years for escape no matter what.) Courts are very reluctant to let people withdraw their guilty pleas because that’s what half the people in prison would like to do—upon reflection they’re sorry they didn’t risk a trial, which they imagine they might have won. There was a conflict between the state’s interest in having guilty pleas stick and Carney’s interest in having a trial. (Of course, Carney started out with more than “an interest” in having a trial; he started out with a right to a trial, which, because it is a right, overcomes any mere interest of the state. But the state argued that he had voluntarily given up that right forever by pleading.)
The appellate court would resolve the conflict by reference to the resolutions of past conflicts, just as future conflicts would be resolved by reference to the present one. I thus found myself smack in the middle of the endless process of defining principles by which the right and wrong of every situation can be fixed, which is the ongoing enterprise of the law—ongoing and endless, because there is always some play, there is never a perfect fit, between a general principle and a specific situation, indeed, between any words (which are all general) and the world (specificity itself).
Some people like doing legal research. Some people like handling snakes. The two activities struck me as similar. I was presenting the argument in my brief that Carney’s plea was not “knowing and voluntary” (as it had to be, to be valid), because he had had ineffective assistance of counsel.
An appellate lawyer must construct and rebut arguments within a self-referential system comprising all the legal arguments and resolutions that have preceded his. He has to retrace everyone else’s steps before he can take a single step of his own. A great appellate lawyer must possess that combination of discipline and inspiration, of compulsiveness and creativity, which is popularly associated with the scientist. I don’t be that way.
Trying to pin down what constitutes “ineffective assistance of counsel,” I read case A. The decision in case A held that the issue had been settled in cases B and C. I looked up case B. Case B cited cases C, D, and E. I looked for case C. It wasn’t on the shelf. This was not unusual. On each of the thirty-eight long tables in the reading room sat a little sign saying, “Be considerate of your fellow students. Please reshelve your books.” And on each of the thirty-eight tables sat dozens of books, used and abandoned by—whom?
I had my suspicions. On those occasions when duress or necessity drove me to the library, I noticed that certain individuals were always there. They did strange, incomprehensible things with index cards and multiple colored pens; they chatted with one another; they ate crumbly food; they aired out their socks; they lived there, and knew where every book was, and had no need of systematic shelving, having little systems of their own.
As I walked slowly from table to table looking for case C, tilting my head from one shoulder to the other as I tried to read the bindings of the horizontal books, I thought the little signs should have said, “Reshelve your books or DIE,” an injunction I would have been happy to enforce. I never found case C.
I looked up D. It said E, F, and G were dispositive. After walking around with my nose parallel to the floor for half an hour, I found case E on a table. It said F and G seemed to support each other, but didn’t really, in light of case H.
I looked up case H. It didn’t seem to have anything to do with “ineffective assistance of counsel.” I went back to case F. It said that a good overview of the issues could be found in a legal encyclopedia. I got that, and found that it had been revised since case F was written. I looked up the new encyclopedia article. It said the real lowdown on the subject would be found in case A.
The room started to spin. I went crying to a friend, a law review type more ardent and adept than I at research, and asked if I was doing something wrong. “That’s the law,” he said. “You pursue it far enough, you go right up your own asshole.”
In the apparently pivotal decision, the court said, “We used to say counsel was ineffective when he rendered the trial a farce and a mockery of justice. Now we say the trial is a farce and a mockery of justice when counsel is ineffective.” On such distinctions the freedom of Mr. Carney would hinge.
The Law, with all its hypertechnical petty arcane bullshit, sometimes struck me as sheer madness, particularly on a sunny Saturday afternoon. But maybe it’s not madness, I told myself. It just seems like madness to me, because it is unrelentingly rational, rigorously logical, punctiliously exact, whereas I’m inclined to look at the Big Picture and rely on an i
ntuitive sense of what’s fair. Anyway, bad as this is for me, I reminded myself, Carney has it a lot worse, sitting out on Rikers Island. I tried to remember that Carney was a nice guy, and I was trying to get him out of prison. I spent the better part of two weeks in the library and found four or five cases where nice guys had been let out of prison under similar circumstances.
The court of appeals was not persuaded. It held that the facts of Carney’s case differed, in small but significant ways, from the facts of the cases we cited, so that his case could properly reach a different result. He had to do his fifteen years.
From the probation department’s pre-sentence report to Carney’s trial judge:
The defendant plans to spend his [mandatory] 15-year (minimum) period in jail profitably. He enjoys writing poetry. The subject matter of his poetry generally involves material dealing with love or sadness. He states he hopes to pursue a college education and study psychology as well as law. The defendant’s motivation for studying psychology is his own curiosity as to “why people do the things they do.”
In summing up his involvement in the instant offense, the defendant states that he realizes he “indirectly” did kill the deceased and he “now has to pay for his crime.” He states he is not a criminal, and never will be. He describes his involvement in the instant offense as “a nightmare.”
The defendent states he does not blame anyone involved in apprehending him and feels all, including the detectives involved in the investigation did their jobs. He states he is looking forward to 15 years hence when he might be considered for parole. He states he plans to make a life for himself, when he is released from prison and feels that the only one he has to face once he is released to the community, is the Lord, for his involvement in the instant offense.
The defendant generally impressed as a sincere, somewhat, however, misguided youth who did not impress this writer as a dangerous individual.
How Can You Defend Those People? : The Making of a Criminal Lawyer Page 3
