Harry and Cheryl drove to the bank, where everything went as planned. Then they drove to a tourist home and split the money, and Cheryl caught a cab home.
“I got six hundred and thirty dollars,” she said. “I spent it on clothes, and I gave my mother some—fifty dollars. I told her my boyfriend got his income tax refund.”
She recounted how four detectives grabbed her and took her in a car with them. “They gave me their cards: Schwartz, Myles, Stanko, and Luchner. I was scared. They flashed this picture on me. I said, ‘That’s not me.’ But Schwartz kept saying, ‘You was very hard to catch up with.’ They was joking with me. About a block and a half from the precinct, Stanko stopped the car and said, ‘Go ahead, get out. You want to go?’ I didn’t move. He said, ‘Now we know it’s you, ’cause any innocent person would have jumped at the chance to go.’”
At the station, they handcuffed her to a desk and “pressed” her for a while, she said. Then Stanko took her into a separate room and quietly persuaded her that he was on her side, and she should confess to him, which she did. She’d been read her rights, and she told me that she had understood them.
“I think this is where I came in,” I said.
We went over her personal info once more: her father had died when she was a little girl. She lived at home with her eleven-month-old daughter and her mother. She’d been dating the same twenty-one-year-old maintenance man for a year. She’d never been in trouble before, “except I was caught stealing crayons eight years ago.”
A lot of important business was transacted in the courthouse hallways. I was approached, soon after picking up Cheryl’s case, by Detective Stanko, a flinty, weatherbeaten man whom I did not know, but who had made it his business to know me. He wanted to do me a favor.
“This Harry Smith who sent your girl into the bank—he and his gang are going on trial for bank robbery and conspiracy in Big Court [U.S. district court] next month,” he said. “You ought to contact the U.S. attorney. I think you might be able to get the charge against Cheryl dropped if she’d testify against Harry.”
“Gee, that’s a great idea!” I thought, but said, in the hard, savvy tone I always fell into when speaking to police, “I’m not sure we need a break. I mean, maybe she was forced into it. Maybe we can get over with a duress defense.”*
“Forced? Sometimes they’d do that,” he said. “One of them caught a kid who broke his car window with a rock and took him to two banks ‘to get the money for it.’ He put a gun to the head of another girl, and those kids got about twenty bucks to keep. But Cheryl—Cheryl went right along. And she got six hundred of the thousand-dollar take.”
“Don’t you think it would be dangerous for her to snitch?”
“She’s not snitching,” the detective said. “She’s saving her ass. She can say we threatened to take her baby away. They’ll understand.” He looked me straight in the eye as he said this, the rhythm of his Chiclet-chewing steady. I couldn’t tell if he was lying, mistaken, or a truth-telling Perfect Master of the ways of the street, about which I knew nothing.
The government would, of course, have to do something for Cheryl to induce her to cooperate against Smith. They could compel her to take the witness stand by subpoenaing her, but they couldn’t make her talk. She could assert her Fifth Amendment* right not to testify, because anything she said pertaining to the robberies would tend to incriminate her.
I thought the government should drop all charges against Cheryl, since she would be risking her life by testifying. But after consulting the United States attorney’s office, all the assistant corporation counsel prosecuting Cheryl’s case offered in exchange for her testimony was a plea to the less serious charge of attempted robbery,† with a promise that he would not argue for incarceration.
I set up an appointment for Cheryl and me with the assistant U.S. attorneys prosecuting Harry Smith, hoping they would lean on the corporation counsel to give us a better deal once they appreciated Cheryl’s value as a witness.
A week after Cheryl’s arrest, a different teen-aged girl walked into the same bank as had Cheryl, handed a similar note to a teller, and walked out with another $1,000. This time the “funny money” worked, a package of red dye exploding as the girl left the bank. She dropped the money and ran, but was later caught, thanks to the bank surveillance pictures, and she told the police that Cheryl had written the note and told her what to do. Cheryl was charged with this second bank robbery, and a warrant was issued for her arrest.
Cheryl sauntered into my office, which was right across the street from police headquarters, a couple of days later. I suggested that she turn herself in, but I also let her know that if she chose to go home and lay low, she could turn herself in that Saturday to a reasonable judge, who might release her, rather than face the judge sitting that afternoon, Judge Wesson, who seldom released anyone. I was not counseling her to evade arrest, but merely advising her of the likely legal consequences of alternative courses of action, which is what a lawyer is for.
Cheryl came back Saturday and spent the entire day with the P.D.S. attorney on duty, trying to turn herself in. There’s paperwork involved. By the time she was finally accepted into custody, it was too late for her to go before the judge, so she was locked up to await an initial hearing that Monday morning, before Judge Wesson, after all.
On Monday morning, but not as bright and early as I had planned, I called up the court official who oversees the assignment of indigent cases and asked that I be assigned to represent Cheryl on the second robbery charge. Too late. Her new case had already been assigned to a private attorney. She went before the judge and was on a bus to the Children’s Center for pretrial detention before I had a chance to see her.
When she was delivered for our appointment with the U.S. attorney the following Friday, I met her in the lockup.
“Where were you Monday morning?” Cheryl asked, her tone indicating that she didn’t expect much in the way of an answer.
“Listen,” I said. “I think one of the reasons you like me is that I don’t bullshit you. I fucked up. What can I say? I’m sorry.”
Cheryl just looked at me for a moment. “It’s all right,” she said, her face softening.
(Her other lawyer let me do all the work on his case, anyway.)
I asked Cheryl if she was still sure she wanted to cooperate against the bank robbers. “Don’t you think they might hurt you?”
She shrugged her shoulders. “I’m not afraid of Harry and them.”
“Yeah, but you’re just a dumb fifteen-year-old kid, and what do you know?”
“That’s true,” she said.
I went out to the marshals’ desk and met the FBI man who had come to escort Cheryl to the U.S. attorney’s office. (The FBI investigates bank robberies because theft of federally insured deposits is a federal offense.) He shook my hand and claimed that it was nice to meet me.
“Has the young lady arrived yet?” he asked, smiling the pleasant, cold smile of the Bureau. Like so many FBI men, he looked just like an FBI man; that is, he looked like a television actor who would be cast as an FBI man—handsome in an off-the-shelf, men’s cologne sort of way. This odd quality of rigid self-imitation might have something to do with the fact that one out of eight FBI agents is an accountant: 982 armed accountants. Scary!5
The marshal told the FBI man to turn in his weapon before he entered the lockup. He reached into the breast of his gray flannel suit jacket, pulled out a Clint Eastwood cannon, flipped the cylinder out, and dumped the bullets, each the size of a dill pickle, onto the counter with a clatter.
Citing their nebulous, ever-changing “regulations,” the marshals refused to let Cheryl, the FBI man, and me use the back elevator, so we went up the public elevator, she in handcuffs, he in his suit. Only once we were under way did it hit me: “My God, this is endangering her, to be seen with an FBI man.”
In the U.S. attorney’s office we sat down with three FBI men, each bigger than the other, and two young women, th
e assistant U.S. attorneys who were prosecuting Harry Smith and his gang. The prosecutors promised that nothing Cheryl said in the meeting would ever be used against her, and that if they liked what they heard, they would renew their efforts on Cheryl’s behalf with the corp. counsel.
Cheryl told what she knew about Harry. “Harry had his gun, weapon, pistol, piece, whatever,” she began.
The biggest FBI man interrupted. “He’s kind of strange, isn’t he?”
“What do you mean?” Cheryl asked.
“He’s a faggot, isn’t he?”
Cheryl didn’t deign to respond, but continued her narrative. She had an awesome memory for detail, and an IQ that wouldn’t quit, and she was the most vivid of raconteurs—all this packaged into a voluptuous yet vulnerable fifteen-year-old who had been taken advantage of. She was the perfect witness.
I suggested to the prosecutors that they’d get what they paid for. They said they’d do what they could.
§3-06
Dr. Sherman pled guilty in April, four months after his abortion-murder mistrial, to twenty-five counts of perjury in exchange for the government’s dismissal of the second-degree murder charge against him. He remained free pending sentence, when he’d face a maximum of ten years in prison for each of the twenty-five counts.
The prosecutor stated that the government entered the plea bargain because the deceased girl’s mother expressed “a very strong preference not to undergo the anguish of another lengthy trial” and because conviction on the murder count “would not effect a significant difference in terms of the ultimate sentence the defendant would be exposed to.”
Sherman’s P.D.S. lawyer, Bob Muse, said the defense accepted the bargain because “for nearly four years my client has been living a virtual nightmare. He sought this agreement because he wanted to bring his life back to some sense of reality.”
§3-07
I was on the phone to the corp. counsel, trying to negotiate a deal for Cheryl. I spent so much time on the telephone every day that I experienced inevitable moments of dissociation, during which I found myself sitting alone in a room with a black plastic dumbbell pressed against one ear, talking to the wall. But now I was wired right into the prosecutor. I was speaking deeply and strongly, in well-formed, highly controlled sentences. I sounded affable, while obviously just feigning affability, formal, lawyerly, masculine—I was doing very well, in short.
The prosecutor suggested that in return for Cheryl’s cooperation against the adult bank robber Harry Smith, in addition to accepting a plea to a lesser offense in my bank robbery case and refraining from arguing for incarceration, he would also drop Cheryl’s second bank robbery case altogether.
“That’s not doing us a favor,” I said, “because you can’t prove the second case anyway.” He had told me that his handwriting expert was not able to determine whether the block-printed note used by the girl in the second robbery had been written by Cheryl. “All you’ve got is the squeal of a co-respondent trying to get her own ass off the grill.”
“We have other evidence,” he said.
“Like what?”
“There are some things we’re working on.” He agreed that his offer would improve if the “other evidence” didn’t come through.
I received a message that Cheryl had telephoned me from the Children’s Center, where she was locked up awaiting trial, and that it was urgent that I call her right away.
After the usual half-hour on the phone, being transferred from “Administration” to “Control” to her “Cottage,” I finally got through to Cheryl. “What’s the emergency?” I asked.
“Tell my mother to bring me my Calvin Klein jeans,” Cheryl said.
I put it on my list of things to do.
* * *
The mother of Richard Joe Madison, my first purse-snatch client, called to tell me that one of Richard’s brothers had died. He died in a sewer in which he was working, overcome by leaking gas. She asked me to tell Richard, because she said she was not allowed to call him on the telephone, up at the Children’s Center. It occurred to me to tell her that, of course, for such an emergency they would allow her to call through, but then I realized that she knew her experience better than I, and no doubt she would have been put through unendurable humiliation in the form of “verification” of who she was and what she was saying before she would ever have gotten Richard on the phone. So I said that I would tell him in person when I went up to the Children’s Center in a couple of days on another matter.
(My waiting two days to deliver the message, which seemed reasonable at the time, in retrospect struck me as appalling, but perhaps was reasonable at the time, given my other obligations. It was not the sort of news to convey by phone, and I felt as though I couldn’t drop everything every time one of my clients had a death in the family—which was quite often, as a result of violence, drugs, and disease.*)
Richard and I sat on opposite sides of a square linoleum table like they used to have in soda shops, in a tiny, windowless, airless room. “I have some bad news,” I said. “Your brother Tom died in an accident. He was overcome by gas at work. They’re sure it was painless. He just went to sleep.”
Richard Joe Madison sat abruptly back as though pushed. A single tear rolled down his cheek. He silently wiped it away. “He been buried yet?” was all he said.
The answer was no. The next day I filed a standard “Motion for Release to Attend Funeral,” which was routinely granted.
§3-08
The cherry blossoms, their tragic beauty too delicate for this world, had come and gone, and were once again a memory. They were always a memory. Leaden air had stifled the spring breezes. The siege of summer was on.
“The evidence I hoped for is not coming together on Cheryl’s bank robbery number two, and I think you correctly analyzed the effect of that on my leverage,” the corp. counsel phoned to tell me.
He still refused to drop all Cheryl’s charges, noting that to conclude such a deal before the trial of Harry Smith’s bank robbery gang would render her testimony practically worthless. The defendants’ attorneys could simply ask Cheryl, “What did you get in exchange for testifying?” and the answer would be, “They promised to throw out two bank robbery charges against me.” The jury would discount everything she said. So we agreed not to reach an agreement. We decided to have “an understanding” that if she testified, he would “take into account” the fact that she had cooperated, when he dealt with her cases. That way he could do more for her after she testified than he was able to promise before.
Cheryl testified at Harry Smith’s trial.
It is a lawyer’s job to foresee all possible problems. But in this case, as so often happens, an unforeseen problem arose, creating the sort of dispute that is the forte of contract lawyers—an argument about what two parties really meant by what they didn’t say about what they had never thought of. The jury in Harry Smith’s case was not able to reach a verdict; a mistrial was declared; and a new trial date set. The corp. counsel and I disagreed about whether Cheryl’s promise to testify applied to a second trial.
I was sitting on a hard metal chair in the corp. counsel’s office, listening to him argue on the phone with the telephone company about his home phone bill, while Cheryl waited outside. Finally, he turned his attention to me. He said that Cheryl’s promise to testify would not be fulfilled until she testified again.
“For more testimony, you’ll have to promise me right now that you’re going to drop all charges,” I said. “I won’t tell Cheryl anything other than that she’ll get ‘consideration,’ so she can still be a perfectly good witness.”
“You’re holding me up, and I resent it,” he said angrily. He insisted that if Cheryl did not testify again, he would not rest until she’d been convicted of two bank robberies and committed to the Children’s Center. The deal had been a break in exchange for cooperation, and that meant whatever was necessary to help convict Harry and his gang.
I said the deal had been a b
reak for testifying, which she had done. To go back on that was simply unfair.
“Like the man said, ‘Life is unfair,’” the prosecutor said, alluding to an observation by then-President Carter.
“Maybe, but the question is, are you unfair?”
I said Cheryl wouldn’t testify, so we might as well set a trial date for her. He said that he was tied up every day for two months, which meant that Cheryl would remain in custody for that period of time. I figured it didn’t matter, because I had no intention of trying the case, a sure loser. I’d bluff him for a couple of days trying to get a better deal, and then plead her guilty to everything, if necessary, rather than leave her detained waiting for trial. My supervisor had assured me that she’d probably get probation, anyway. “All the judges are male chauvinists, including the women,” he said. “They’re not going to lock up a poor girl who’s been exploited by these bad men who had her in their thrall.”
I found Cheryl, dressed that day in a Grecian-looking lavender dress, holding court in the courthouse corridor with some of her many juvenile acquaintances. When I mentioned her remote trial date, her face turned ashen, even though I explained that it was all a bluff, meaningless.
“Relax,” I said. “It’ll all be over, one way or another, in a couple of days.” She had a far-off look as she walked out the door.
Something told me to call the shelter house (where Cheryl had been moved to facilitate her trips to court) and explain to Cheryl that her situation had improved.
How Can You Defend Those People? : The Making of a Criminal Lawyer Page 9
