How Can You Defend Those People? : The Making of a Criminal Lawyer

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How Can You Defend Those People? : The Making of a Criminal Lawyer Page 6

by James S. Kunen


  The defense moved that the case be dismissed on the basis of prosecutorial misconduct. Two defense witnesses claimed that they had been telephoned by the prosecutors themselves and discouraged from testifying. Other defense witnesses reported intimidating phone calls from the police. The judge reprimanded the prosecutors for “demonstrating extremely poor judgment” in taking actions that “have perhaps made more difficult an already difficult defense task,” but denied the motion.

  It was the defense’s turn.

  Suddenly I heard about a whole different Dr. Sherman. A parade of patients told about Dr. Sherman, whose clinic was immaculately clean; Dr. Sherman, who never rushed me, who always took the time to explain in words I could understand what he was doing and why; Dr. Sherman, who came to the hospital at three in the morning to be at my bedside when I went into labor, who delivered my first child and my first grandchild; Dr. Sherman, who was really more than a doctor to me; Dr. Sherman, my friend.

  Then came the government’s rebuttal case, and a patient testified that Dr. Sherman’s procedure room was small and shabby, with blood and trash on the floor, and the windows were so dirty she couldn’t see out of them. She seemed honest. The defense witnesses seemed honest. What was going on?

  Whatever it was, it goes on at every trial. Conflicting testimony may be attributable to the psychology of perception, or the nature of reality, or simply the fact that people he. Lawyers sum up this and other mysteries with a shrug-your-shoulders, toss-your-hands-in-the-air phrase: “reasonable minds can differ.”

  * * *

  A trial is supposed to impose order on conflict, pull beyond-the-bounds behavior back into the realm of rationality. It’s a constant struggle, chaining down passions with procedure, and the Sherman trial, which throughout its seven weeks had been straining the bonds, finally broke out and wasn’t a trial anymore.

  On the morning set for final arguments, one juror had approached the court stenographer, burst into tears, and said, “I can’t take it anymore. I’ve been getting threatening phone calls for five days, saying I better vote ‘guilty.’” She was brought to the judge’s chambers.

  The prosecution moved that she be excused from the jury, to be replaced by one of the alternate jurors who sit through the trial for just such an eventuality. The defense agreed reluctantly, since she was their favorite, having waved and smiled one day, and having been overheard to say that the prosecutors needed to go back to law school.

  As she got up to leave, she said, “Your Honor, there’s something I’ve got to tell you. That man is never going to get a fair trial.” On the first day of the trial, she said, one of the jurors looked at Dr. Sherman and muttered, “Murderer, murderer.” After the first defense witness testified, she overheard one of the other jurors saying, “This is all bull. Let’s deliberate for three and a half hours to make it look good, and then convict.” And the jury, contrary to the judge’s instructions, had been following the case in the press.

  Upon hearing all this, Dr. Sherman complained of chest pains and collapsed. He was rushed to a hospital.

  The jurors were brought one at a time to the judge’s chambers and asked whether they had received any phone calls about the case, and whether they had already decided on a verdict. They all said no, no. The judge ordered the jury sequestered for the remainder of the trial.

  Gary Kohlman, who was in charge of the P.D.S. training program, told me I could make myself useful by researching the law on mistrials. I said I thought the only question was one of fact: was the juror telling the truth about the other jurors’ violation of their duty not to decide the case until all the evidence was in?

  “You’d think so, by common sense,” Kohlman said, “but common sense isn’t controlling. You’ve got to throw a few cases at the judge.”

  Muse asked me to have a memorandum of law in support of a motion for mistrial typed in four hours. First I ran over to the five-and-ten to buy the candles Jan had asked me to get for our housewarming party that night. Of course, it was absurd for me to do my errands when a man was depending on me for his freedom. But there was going to be that kernel of absurdity in my life as long as I was a defense attorney. Either that, or I would have no life.

  I tried to stay calm by reminding myself that the idea of these trial memos is really not to persuade the judge, who knows all the law he wants to know and is going to do whatever he wants to do, but merely to make a record of having raised certain arguments, in order to preserve issues for appellate review.

  I cranked something out, just in time: 1) The shock waves from the impact of the improper attempt to influence a juror cannot be contained. The examination of each juror was itself a disturbing influence. Blah. Blah. Blah. Citation. 2) Premature jury deliberation requires a mistrial. “By due process of law is meant ‘a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial.’” Citation. Etc. Etc. Respectfully submitted …

  Muse wanted a mistrial because he believed that the jury really had been prejudiced. In addition, at a retrial he would face no surprises, and might be able to contradict the prosecution’s witnesses with the transcripts of their testimony at the first trial. A mistrial might also give him the leverage to get a plea bargain under which “there’d be a substantial likelihood the doctor would stay on the street,” as it would cost the government tens of thousands of dollars to retry the case.

  (It occurred to me that “on the street” is a strange place for a middle-class person to want to stay, but because most defendants hang out there, it’s become a term of the trade for “not in jail.” When you think about being in jail, you realize how important being on the street is. Whatever you want to do, and wherever you want to go, you have to start on a street.)

  Tests completed over the next several days indicated that Dr. Sherman had suffered angina, not a heart attack, so he could return and face the music. But the music had become so dissonant it was beyond orchestration. The judge said that, in questioning the jurors, he found no facts to support the allegations that they had violated the court’s instructions not to reach conclusions about the case, but he feared his questioning itself had pierced the secrecy of the jury, “clouding the fundamental fairness” of the deliberative process. Also, the prolonged delay would render it difficult for the jury to remember the evidence, and they might be distracted by the pressing need to do their Christmas shopping. He declared a mistrial.

  The government announced its intention to prosecute again.

  §2-05

  As I emerged from the Metro at Eighteenth and I Streets to go to my swearing-in to the bar, the sun was a cold white disk in a steel sky. At 9:57 A.M. I took the aisle seat of the fourth row of the left-hand section of Constitution Hall. High above me, gold stars glinted on the blue ceiling. It was a very impressive setting, which lent a sense of occasion to the occasion. I clutched the handouts I’d picked up at the registration desk: an issue of District Lawyer magazine and a copy of the Code of Professional Responsibility.

  At 10:00 A.M., exactly on schedule, a man cried, “Oyez, oyez, oyez, the court is now in session. God save the United States and this honorable court.” Flashbulbs popped, bing bing bing.

  A man in the front row was recognized by the chair to make a motion that the applicants on the list be admitted to the Bar of the District of Columbia Court of Appeals. “The court will grant your motion,” the judge, a woman, replied.

  “As the saying goes,” the judge told us, “you have arrived. Each of you is now a member, for good or bad, of what is probably the second oldest profession in the world. The actors among you will probably be trial lawyers or politicians…. We hope not to see too much of you. We’re buried in suits. Everybody sues everybody. A person in Colorado tried to collect one million dollars from the sheriff for letting him escape. A Redskins fan sued the NFL over an official’s call in a Cardinals game. A young man sued his parents for three hundred fifty thousand dollars for raising him improperly. Please restra
in litigation…. Don’t become pompous, rapacious, cynical, or intolerant—words the public uses, and even the Supreme Court has used, about us…. I’m not asking you not to make enormous sums of money—that is your American heritage. Just do it with the Code of Professional Responsibility in one hand. The court will now adjourn.”

  When I got outside, the sun was shining brilliantly in a cloudless sky. It was warm.

  §3-01

  I went down the escalator to the basement of the courthouse, walked through a metal detector, the keys in my pocket triggering an alarm to which no one paid any attention—I was a lawyer—signed in at the marshals’ desk, pushed open an orange steel door, which closed behind me, and entered the lockup’s interview area, a seventy-foot-long room divided lengthwise by a cinder-block wall from the floor to a waist-high steel counter, and by an iron screen from the counter to the ceiling. The quietly whooshing ventilation system effectively blended the odors of sweat and iron into that admixture which is the unmistakable smell of men in cages.

  Behind the screen were twenty juveniles who had been arrested in the past twenty-four hours—the adults would be brought in later. Some of the older and larger boys were sleeping on the counter. Others sat on the floor along the back wall. As lawyers drifted in on my side of the screen, the kids began to stir. “You my lawyer? Hey, where’s my lawyer? Tell my lawyer to get down here!” A general cacophony built up as the boys began to shout, play, show off. A lot of them knew one another.

  I was embarking, that January morning, on what would be my life’s labor for the coming year—defending juvenile “respondents” accused of committing crimes.* We started out representing juveniles in family court because their trials are simpler than those of adults, since juveniles do not have the right to trial by jury; and, arguably, the stakes are lower: no matter what the offense, the worst that can happen to a juvenile in family court is incarceration until the age of twenty-one. (In Washington, anyone under eighteen is a juvenile, but those between sixteen and eighteen who are charged with serious offenses can, at the discretion of the U.S. attorney, be tried as adults in criminal court and sent to adult prison.) Juveniles’ trials are often presided over by novice or retired judges; they are prosecuted by the city’s assistant corporation counsels, who are generally less impressive than the assistant U.S. attorneys who prosecute adults. Family court is called “kiddie court” for more than one reason.

  I sat down on a steel stool bolted to the floor and laid out a notebook and a list of questions on the counter. Names were scratched into the orange metal counter on the other side of the screen, crude combinations of small and capital letters spelling out “The LAy,” “EuGeNE aS SHOrTy,” “siR ANtoNio SE76,” “CriCKet,” MouSE.”

  “Wyatt Clayton!” I shouted. “Wyatt Clayton?”

  “Over here, man,” a tough-looking guy lying at the end of the counter shouted. He slowly rose and ambled over to me.

  We sat facing each other through the rust-colored screen. Other boys crowded around.

  “Excuse me, guys,” I said. “Do you think you could give us a little privacy? Thank you.” The boys backed away.

  “Wyatt, my name’s Jim Kunen. I’m a lawyer with the Public Defender Service. Here’s one of my cards.” I pushed it through the inch-high slot at the base of the screen. “You’re charged with armed robbery. I’ll be your lawyer, if you want one. You want a lawyer?”

  “Yeah.”

  No one ever said no. When you’re locked inside, you can’t help yourself. Somebody on the outside might help you. Can’t hurt.

  “Good. Okay. Now, as your lawyer, I work for you. You’re the boss. Whatever you want, that’s what I’ll try to get. Like, you want to stay in jail, I’ll try to help you stay in jail. You want to get out, I’ll try to get you out. What do you want, in or out?”

  “I want to get out,” Wyatt said patiently.

  “Fine. I figured you would. That’s what we’ll try to do. Now I’ve got to ask you some questions so I’ll know what to say to the judge to try to convince him to let you out today. Is your correct name Wyatt Clayton?”

  “Yes.”

  “You live with your mother, Jean Patterson?”

  “Yes.”

  (I seldom had occasion to ask anything about a kid’s father, whose address was usually marked “unknown” on the police forms.)

  Wyatt verified that he had been born in D.C.; was, despite his moustache, just fifteen years old; was in the ninth grade, five foot seven, 150 pounds, dark-complected; and had lived with his mother and four brothers in the same publicly subsidized apartment for eight years.

  The diamond-shaped apertures of the screen were having a bizarre effect on my vision. If I tried to look through the screen and focus on Wyatt, the iron lines doubled and began a blurry, circular dance. If I looked at the screen, it seemed to zoom forward to within an inch of my face, and Wyatt, now four-eyed, floated in shimmering space, as though the inhabitant of another dimension. This was one of those problems that have no solution.

  “You ever been arrested before?” I asked Wyatt.

  “Just one time.”

  “What for?”

  “I was with some boys that took a lady’s purse.”

  “When was that?”

  “Hmm.” Wyatt stroked his chin thoughtfully. “I don’t know. Must have been ’round about September, October, sometime around then.”

  “What happened to the case?”

  “They dropped it, I think. I got to come back to court this month.”

  “Wait a minute. If they dropped it, why do you have to come back to court?”

  “The judge told me to.”

  Juveniles generally understood very little of what went on in court, unless their lawyers took pains to explain it to them.

  “Who’s your lawyer on that case?”

  Wyatt closed his heavy-lidded eyes, frowned, shook his head. “Damn! What is her name? I can’t think of it right now. She’s a white lady—wears glasses, I think.”

  “Don’t worry about it. I can look that up,” I half-shouted to him. Other lawyers had occupied the other eleven stools and were conducting interviews side-by-side, fragments of conversations richocheting off the cinder-block walls: “Any weapons on you?” … “I was going to the john” … “knife” … “You want to go out to California?” … “Anybody could have dropped the TV in the alley” … “surety bond” … “Was that in this court or the big court?” … “Will you have any relatives here?” … “979-2086” … “What do you want to do?” As counterpoint, shouts echoed from somewhere deep inside the lock-up: “Hey, muhfuh! Hey, muhfuh!”*

  I pressed on, explaining to Wyatt that on that day the judge wasn’t going to decide whether he was guilty or not, but only whether he could be trusted to return for his trial or had to be locked up until then, which could be several months.

  “So what the judge wants to hear is that you have something you have to show up at every week, like you’re on a team, or in a band, or in the Boy Scouts.”

  I never did find a Boy Scout in the lockup. (Or a varsity athlete.) Wyatt had held the same job for three years, though—selling newspapers on a street corner.

  “One more thing, Wyatt. It says here that the police say that you robbed someone with a gun.”

  Wyatt leaned back, vainly looked to his left and his right for someone to back him up, and raised his hands in surrender. “Man, I don’t know nothing about that.”

  “Okay. That’s cool. Neither do I. I don’t think we ought to talk about it right now, anyway, with all these people around. But what did the police tell you? Did they say why they arrested you, instead of, say, me?”

  “They called me up and said this girl picked out my picture and said I robbed her. So me and my mother went down to the police station. And they arrested me.” He was still wide-eyed with amazement.

  “You turned yourself in? That’s very good. That’s great. That’ll help convince the judge to let you out. Did you say anything to
the police?”

  “I said I didn’t do it, because I didn’t.”

  “Okay, now listen. From now on, no matter what anybody promises you, or no matter what they threaten you with, all you say is, ‘I’m sorry, my lawyer told me not to talk about it.’ You got that?”

  “Yeah.”

  “All right. Let’s hear it. Pretend I’m a cop, and I say, ‘Wyatt, just tell me what happened, and I’ll make sure you get off.’ Now, what do you say?”

  “I’m sorry, my lawyer told me not to talk about it.”

  “That’s it. Good. A lot of people think that if they don’t talk, they’ll get into more trouble. That’s wrong. Talking gets you into trouble. No one ever got into trouble by keeping his mouth shut. So keep your mouth shut. Breathe through your nose. Now, I haven’t got all day, so just pretend I sat here for ten hours and told you that a thousand times.”

  As I gathered my notes together to clear the deck for the next client, Wyatt stared through the screen at my wrist.

  “Omega,” he said.

  “Rennie Jefferson!” I shouted. “Rennie Jefferson? … Rennie, my name’s Jim Kunen. I’m a lawyer …”

  I found out from the computer printouts in the juvenile clerk’s office that Wyatt Clayton had been charged with robbery (pocketbook snatch) just a few months before, had pled guilty to the lesser included offense of petit larceny,* and was scheduled to come in for sentencing in that case in a week. His current arrest for armed robbery was his only other charge.

  I took a seat in Judge Richard Quinn’s courtroom and waited for my cases to be called.

  Judge Quinn was an embittered fifty-year-old who exhibited rather extreme mood swings. When he was in a bad, or normal, mood, he would ferociously lash out at defendants and their attorneys, simply for being defendants and their attorneys. He did, however, on those rare days when he was in a good mood, display a certain intelligence and humanity. It was the existence of this stifled sensitivity that prompts me to use the word “embittered” to describe him. Maybe he was a sensitive man turned mean by years of exposure to brutality and suffering in an inner-city court. Or maybe he was just a mean son of a bitch. I couldn’t tell.

 

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