§2-02
I left for a weekend in New York, where Jan was still packing up our stuff for the permanent move to D.C. As soon as I got on the train, I commenced reading and drinking, drinking and reading. I was examining the brochures of the various insurance plans that were available to me as a government employee. I had set myself that task for the trip. It’s the sort of task a responsible person is never without. One’s ability to handle such tasks is undoubtedly the true measure of success in this life. I found the brochures incomprehensible. I was going to pick the plan that my knowledgeable friends said I should pick. But it was essential that I at least look over the info. Gather data. Proceed in a rational manner.
At Philadelphia I made my way to the bar car once more. On my way back, my passage between cars was blocked by a young man who stood directly in front of me and held his hand up like a cop stopping traffic. He was unsteady on his feet, and his eyes were fixed straight ahead in a glazed stare. I wanted nothing to do with him. I walked straight ahead, but he didn’t get out of the way. His palm hit my chest. “You don’t want to do that,” I said gruffly, and he turned aside as I pushed on. These drunks.
After I had regained my seat, I noticed that a couple of conductors were conferring and gesturing toward the space between cars occupied by the young man, and I heard one passenger say to another, “They’re going to arrest him in New York.” I got up.
“Are you feeling all right?” I asked the boy between cars.
“No. My mother’s sleeping all the time. Are you a clone, or are you natural?”
“I’m natural. How about you?” I thought he was speaking metaphorically.
“I was touched two days ago.”
He stuck his finger into my drink, then into his mouth.
“Ooh, that makes me feel sick,” he said, and spat on the floor.
“You’d probably feel better if you could sit down, wouldn’t you?”
“Yes.”
We found a pair of seats. He started spitting on the floor again. “You can’t be doing that,” I said. “There are some things people just don’t like, and spitting on the floor is one of them.”
He was a solidly built twenty-year-old, a dark-haired boy a couple of inches shorter than my five feet eleven. He was wearing a clean white T-shirt and paint-spattered dungarees. His hands were also spattered with paint.
He was talking about points, lines, theorems. Everything turned to light, he said. His mother was sleeping, and he couldn’t wake her up.
“Do you think my mother killed herself?”
“I don’t know. I don’t know your mother.”
I asked him his name, which was Ron, and wrote down his address and phone number, in case he flipped out altogether. And I asked him if he had taken a pill, or failed to take a pill he usually took. He said no.
“Have we come to Philadelphia yet?” Ron asked. I said we had passed Philadelphia; Philadelphia was behind us, and we were moving toward New York. I asked him where he got on.
“Philadelphia,” he said. “Can I look into your eyes?”
“Sure, go ahead,” I said.
He leaned over so that his face was directly in front of mine, three inches away—big brown eyes, no pupils that you’d notice, just brown irises straining forward in a wide circle of white. A long, long time I let him stare.
“Can I take your hand?” he said.
“Sure.” He clasped my hand in both of his, raised it and kissed it gently. He buried his face in my shoulder, muttering mathematical formulas. I looked at the back of the seat in front of me. I didn’t mind anything too much. I was done with my first week of work, my heart was pumping beer and Scotch, and I was on my way to see my wife.
Ron spent a long time looking at his reflection in the window, trying to work through his Problem: “Convex, invex, reflex, duplex, preflex …” He made a square with his thumbs and index fingers, and rotated it clockwise, superimposing it on the geometry of space. “Four times four times four times four … I bet you’re really good at math, aren’t you?” he said.
“No. I’m a lawyer. You sound like you studied math?”
“No. It frightened me,” he said. “I never dreamed in my earliest day that it would happen this fast. How many of you are there?”
“How many of whom?”
“Of you doctors. Ten? A million?”
I was about to say “enough,” when Ron grabbed my arm and said, “No! Don’t tell me! It would go fast, though. When it gets smaller, it goes fast. It’s all proportional.”
He told me he’d once been in Bellevue, New York’s psychiatric hospital. I said I’d take him there when we reached New York.
“Would you? Oh, thank you! At the hospital will they give me Thorazine?”
“Would you like that?”
“Yes.”
“Then I’m sure they’ll give you Thorazine, if that’s what you need.”
He often looked at his left hand, then at his right, while thinking aloud: this, that, one, two, if, then—holding his hands up now as balance pans, now as points of reference. I thought I understood the duality he was chasing, the feeling of getting it, but “it” being just a bit too fast for you; every “it” reveals itself to be not “it,” but then contains “it” after all, and that’s “it,” but that’s not “it”…
When we got to New York, I told Ron to stick with me. As we left the train and went upstairs in the crowd, he walked in my footsteps, with his hands clasping my waist.
“Do you have anything against the police?” I asked. He said no.
We went up to a cop. “Ron, here, is confused and upset,” I said, “incoherent, in fact, and I don’t think we can handle fighting for a cab.”
“What’s the trouble?” the cop asked Ron. “Are you depressed?”
“Depressed? Yes. Very depressed,” Ron said. The cop went out to the street with us, picked out a cab, leaned in the window, said something to the cab driver, and gestured for us to get in.
“What part of Bellevue?” the cab driver asked.
“Psychiatric.”
Ron was talking about theorems when the cabbie said to me, “I said to the cop, ‘Is he bleeding?’ ’cause we don’t have to take ’em if they’re bleeding. Nobody cleans up after ’em. Ends up we have to clean it up ourselves. We don’t have to take ’em.”
“Well, nobody’s bleeding here,” I said. “We’re both fine.”
We arrived at Bellevue and went in the main entrance, Ron holding my hand as we walked. We were told that psychiatric was up at Twenty-ninth Street. We had to go out and walk up First Avenue.
Outside, on First Avenue, Ron said, “It’s great to be in the hospital. Is Hitler alive?”
“No, he’s dead.”
“They killed him?”
“He killed himself, actually.”
“Was that because he was so wicked?”
“Yes.”
“All the Germans are wicked, aren’t they?”
“All the Germans are over in Germany.”
“They are?” Ron heaved a sigh of relief. “Do you think we could be friends?”
“Sure,” I lied.
“We could go in and out together?” Ron asked. I assumed he meant through the warp and woof of time and space. I said, “Sure.”
“Could I go home with you? Please. Just for one meal—it would mean so much to me.”
“I don’t think it would be a good idea, Ron, because I’m not a doctor. I couldn’t give you Thorazine.”
“Oh.” He nodded acceptance and seemed to forget about it. He seemed to forget about everything as soon as we said it, until we came around to it the next time.
“Why did all the people fuck up in the beginning?” he asked the air in front of him. “Was it because of the theorems?”
I asked at the psychiatric admissions desk when we could see the nurse that the signs told us to wait for.
“Sit down and she’ll come to you,” the lady behind the front desk said.
“How long might that be?”
“I don’t know.”
“Could you give me an idea?”
“No.”
“I mean, is it like one-half hour, or three hours?”
“It could be one-half hour. It could be three hours.”
Ron and I sat down on yellow Fiberglas seats. An old crone with matted hair, clutching a blanket around her, sat down beside Ron. She started yelling and bouncing in her chair.
“Wait here, Ron,” I said. I walked over to the cop who was sitting against the opposite wall. He was talking with a battered young woman whose husband was inside.
“Do you go around naked a lot?” the cop asked her.
“Well,” she responded, “we’re comfortable with our bodies, you know, but this was unusual, for him to assume the fetal position on the floor.”
“Officer Ryan,” I began, reading his nameplate, “I just met this young man—”
“Can’t help you. I’m here on another case.”
I went up to a fat nurse who was interviewing someone at a desk in the middle of a corridor. “I’m being a good Samaritan,” I said, “but there’s a limit.” I started to explain, but she said I’d have to wait.
“You made the decision to get involved,” she said.
I went back and sat with Ron. I neatly wrote out his name and address, so I could give it to the nurse, and handed Ron a copy, telling him to keep it in his pocket in case he got confused. “Here, here’s two dollars, so you can buy candy and stuff. It’s always better to have a little money than no money, don’t you think?” He smiled and nodded, shoving the money, unfolded, into his pocket.
“Now, Ron, my job is done,” I said, putting my hand on his shoulder. “I’ve done everything I can for you. My wife is waiting for me at home.”
“Who’s next?” the fat nurse called.
I took Ron to her. As she led him down the long corridor, I called out, “Goodbye.” He didn’t answer.
Outside, walking up First Avenue to the bus stop, I could hear the old woman screaming inside.
§2-03
D.A.’s and cops and judges came in to help with our training. Introducing Richard Locke, a senior attorney in the Criminal Trial Section of the U.S. attorney’s office—which prosecutes all felonies and most misdemeanors in the District of Columbia, because the District is a creature of the federal government—P.D.S. attorney Taylor Harrison said, “Mutual respect and professionalism are essential to the operation of the system.” (My italics. If I ever had any doubt whom I worked for, all I had to do was look at the imprints on my pens: “Skilcraft–U.S. Government.” We were paid out of the federal court budget.)
“If you have a client who you believe is innocent,” Harrison continued, “and you can back that with some facts, you can discuss it with Richard, and he’ll consider dropping the case.”
He would consider dropping the case because, by definition, “the responsibility of a public prosecutor differs from that of the usual advocate: his duty is to seek justice, not merely to convict” (A.B.A., Code of Professional Responsibility, Ethical Consideration 7-13).
I found it a vaguely amusing idea, going up to a prosecutor and saying, “Time out. This one is really innocent.” It was Clint Levine, my NYU instructor, who used to call such appeals “playing up the justice angle.”
“When you don’t believe your client is innocent,” I had asked Levine, “do you omit that pitch?”
“Yes,” he said.
“Then doesn’t that signal something to the D.A.?”
“It doesn’t matter,” he said. “Guilt or innocence is completely irrelevant. What matters is what the D.A. can prove.”
Locke was perfectly cast for his role. Every pinstripe in his charcoal suit was perpendicular to the ground, so straight, tall, and elegant was he, the incarnation of the moral authority of the state, every kink pressed out of his body by the rigors of the courts—criminal and tennis.
One of the more self-righteous members of our group asked Locke whether he liked putting people in prison.
“You take a case like a mother beating her baby to death with a hairbrush—it’s a consummate human tragedy,” he replied. “I’m just glad I can be an objective bystander, and do my job, and go home and have a cold beer. I don’t feel good to see her get time, but I wouldn’t feel that justice wasn’t done.
“I treat the defendant as a human being, with more respect than he gave his victim, and I do my job. And if I do it well, he serves time, and I wish him well, and hope when he comes out he’ll have learned his lesson. Now, maybe that’s insane, but I’ve been doing this for several years.”
I went over to police headquarters to pick up a homicide detective who was to lecture us. Under the glass on his desktop, along with snapshots of his family, was a picture of a severed hand in a cardboard box. Another detective had the same picture on his desk.
* * *
“It’s a mistake to call yourselves advocates. You’re salesmen,” we were told by one judge. “You’ve got to know your product, and you’ve got to know the territory.
“Don’t go before me at the end of the day. And Friday afternoon is a poor time to have anybody sentenced.”
Leroy Nesbitt, a defense attorney famous in Washington for his flamboyance and his winning record, gave a sort of closing sermon at the end of the six-week training program. He said the government would trash the Constitution altogether, were it not for the defense bar. We were “sentinels on the frontier of freedom,” he said.
This was good news, because I had just read about two men who had broken into a house and raped the wife and stabbed the husband. I wasn’t sure I would be really interested in helping out guys like that.
Nesbitt reminded me that defense lawyers are the true conservatives, defenders of the Constitution, of law and order. Without defense lawyers, there’d be no rule of law, no limit at all to what the government did. Governments have a demonstrated tendency to lock people up. You have to draw the line way out there, at the least sympathetic defendant, so the government doesn’t even come close to taking you.
I was ready to report for duty on the frontier.
§2-04
I had yet to be sworn in to the bar, so I spent some time as an observer/go-fer at P.D.S. trials, including the murder trial of “former Washington abortionist Dr. Robert J. Sherman,” as the newspapers called that notorious obstetrician-gynecologist.
The government alleged—in the language of court, “the government” means “the prosecution,” although the public defender and the judge also work for the government, a fact of which defendants are acutely aware—the government alleged that Dr. Sherman, a white, had purposely performed incomplete abortions at his clinic, so that his (mostly black) patients would have to come back for a follow-up dilation and curettage, so that he could charge them for an extra visit and make more money. For the same reason—greed—he was alleged to have reused unsterile disposable plastic instruments, thrown away urine samples he was charging patients for testing, and employed a nurse’s aide with a ninth-grade education to perform cryosurgery. One of his abortion patients, a black sixteen-year-old girl, had died four days after being treated by him. Dr. Sherman was indicted for second-degree murder,* on the theory that his “reckless treatment…motivated by his malicious and overriding interest in making money,” caused infection of the uterus, severe blood poisoning, shock, and death. He was also charged with twenty-six counts of perjury relating to the incident in testimony before the grand jury, before the D.C. Commission on Licensure to Practice the Healing Arts, and in a civil suit.
Bob Muse, Dr. Sherman’s P.D.S. defense attorney,† maintained that if Dr. Sherman had run an appendectomy clinic and performed 10,000 appendectomies, and one patient died, he wouldn’t have been charged with murder. In fact, the defense was unable to find a single prior case in which a practicing physician in the District of Columbia had been charged with murder based on evidence of a pattern of reckless behavior.
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“The murder charge is the community’s way of venting its tension about the whole question of abortion,” Muse told me.
The Sherman case was a perfect example of what my job was all about: defending a despised individual from the wrath of the community. If anyone needed defending, Dr. Sherman did.‡
Wigmore’s Evidence, the Anglo-Saxon Talmud on which all lawyers rely, describes the criminal trial as an “antiphonal drama.” The prosecution puts on its case first because it has the burden of proof. Until the prosecution presents its evidence, the defendant has no reason to present his evidence: he starts off presumed innocent, and would be content to stay that way. Generally, the defense answers the government’s case with a case of its own. Then the government gets a chance to present a rebuttal to the defense’s answer.
At first I got all my information about the Sherman trial from the newspaper, and the newspaper was merely repeating what was going on in the courtroom, and what was going on in the courtroom was the prosecution’s case—one side of the story. But it was the only side I was hearing. And somehow the fact that the information was alleged rather than proven seemed a formalistic technicality of which I was aware, but in which I did not really believe.
When I started attending the trial, the jury appeared to me to be biding its time impatiently, waiting for its chance to condemn the pale, sweaty old man sitting at the defense table. Witness after witness testified about being rushed through incomplete abortion procedures without counseling before, anesthesia during, or more than five minutes in the recovery room after. One recalled Dr. Sherman’s handing her a green plastic garbage bag and suggesting that when her body eventually expelled the fetus, she should catch it in the bag and throw it into the Chesapeake Bay. A medical expert told the jury that yes, he did have an opinion about the practice of doing incomplete suction-aspiration abortions: “It’s barbaric.” When the mother of the dead girl testified, jurors wept.
How Can You Defend Those People? : The Making of a Criminal Lawyer Page 5
