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

by James S. Kunen

  I called Detective Salt and told him that Eric had no information to share, so I would bring him to the station only if he was going to be arrested. The detective said that, as a matter of fact, he had just gotten a custody order for Eric.

  I drove Eric and his aunt down to the police station in my new Mustang (later stolen) through searing sun-bleached boulevards that reminded me of Florida, L.A., or Mexico, and reminded Eric of nothing, since they were all he had ever known. I think that the simple fact of never leaving the city must be one of the most insupportable conditions of poverty, but I wouldn’t know.

  Eric’s aunt lectured him as we drove: Eric goes along and helps the big boys; he gets in trouble; they get the money. “They say there were color TVs and all sorts of stereo equipment stolen, and Eric hasn’t got a dime to show for it,” she said. Eric sat silently in the back seat.

  His aunt talked about her daughter, who was in the hospital. She’d come out of a two-month coma and was beginning to talk, but she remained paralyzed on the left side. I asked what her illness was. Eric’s aunt explained that her daughter was beaten up by a guy “she used to mess with, but she stopped messing with him.” He beat her up with his fists. The doctor at the emergency room thought she had been hit by a car.

  At the police station, as we waited for the detective to see us, Eric sat with his face between his updrawn knees and his hands over his head. Detective Salt, a fortyish, overweight man with an acne-scarred face and short, wet-looking hair, greeted each of us politely. There was something seamy about him, perhaps from the spiritual residue of doing society’s dirty work, or maybe from the physical residue of spending too much time in police cars, which are eaten in and slept in and aren’t that clean.

  He took me aside and said he would like Eric to give him a written statement to “firm up” what he’d already told him, and to ride around pointing out perpetrators’ houses. He hoped to do that right away, while there was still a chance to recover some of the property. I refused both requests, as my client did not want to cooperate with the police. Salt remained affable. What was it to him? He understood my job, and he brought all the passion to his own that one would expect from someone working on his eighteen-thousandth burglary investigation. For my part, as I stood there obstructing the search for somebody’s property, I felt as though I were preventing the recovery of my own.*

  Eric pled guilty to the burglary in exchange for the dismissal of the pocketbook snatch, and was put on probation.

  §3-12

  “Perry Mason didn’t win those cases. Paul Drake won those cases,” old Professor Peterfreund of NYU used to say. The case of Wyatt Clayton, my first client, proved how right he was.

  Wyatt Clayton’s day in court on his Christmastime robbery charges finally arrived in the dead of summer, after five continuances. As it turned out, he was charged with two separate gunpoint holdups, of a young woman and her brother, and the facts were complex enough for me to request two continuances for “continuing investigation” by the defense, which were granted because there were no available trial judges, anyway. The third continuance I obtained by throwing myself on the mercy of the prosecutor when I discovered, the day before the trial, that it was scheduled for the next day. I had written it in my datebook, but I hadn’t looked in my datebook. The prosecutor agreed not to oppose my request for a continuance (thus assuring it would be granted), because he was a nice fellow, and because he generally preferred doing nothing to doing his job. The fourth continuance was necessitated by the defense attorney’s broken leg. The fifth was requested by the prosecutor so he could take his vacation. Altogether, seven months had passed since Wyatt had allegedly pulled the holdups—not an unusual delay. In the meantime, he had been sentenced to probation for a prior pocketbook snatch and had made a “satisfactory adjustment,” according to the probation officer.

  Ernie Savage, my investigator, had used those months to amass a huge amount of material, taking written statements from the complainants five different times. Ernie believed in Wyatt’s innocence, which made me think him naïve.

  Ernie was one of the college students who did unpaid “internships” at various institutions in Washington. Those who worked at the Public Defender Service were a varied lot. Some were primarily interested in getting away from college; others, like Ernie, wanted mainly to get into law school. But all had chosen to tramp the dark streets of the city when they could have been relaxing by some congressman’s Xerox machine, and I admired them for it.

  From the piles of yellow paper Ernie kept putting on my desk, I learned that complainant Marilyn Tracy was a twenty-year-old active in the Explorers, a volunteer auxiliary police program for teen-agers. Three years before, she had been named Explorer “Teen of the Year,” presumably for exhibiting the sort of virtues that win one that sort of award. Her career as a would-be cop waved just the shadow of a red flag at me as I went over her story. I had done a brief stint as an auxiliary policeman in New York—strictly out of curiosity—and had found, not surprisingly, I suppose, that a lot of people who walk around the streets at night dressed up to look like cops tend to exhibit personality problems marked by an unhealthy respect for authority, and a need to pretend that they are it.

  Marilyn told Ernie that on a Friday night in December, at between 10:00 and 10:15 P.M. (she had just looked at a clock in a grocery store), she was walking past an alley near her home when she heard what sounded like a backfire. Just then, a medium-blue 1974 Mustang Mach I with black paint on the back and a long whip antenna on the front passenger side roared out of the alley, almost hitting her. She saw four boys in the car. She “didn’t get a good look” at the two in the back seat, one of whom she later identified as Wyatt, but she “knew” they were two kids who hung out at a corner in her neighborhood. (Wyatt lived across the river on the other side of town.)

  After the car screeched away, Marilyn’s brother ran out of the alley and told her that one of the boys had gotten out of the car and held him up at gunpoint. When her brother had turned to look for the license of the fleeing car, he was shot at, the bullet passing through his hat, she said.

  The day after her brother was robbed, Marilyn said, she got off a bus at quarter to three in the afternoon and was walking past the same alley when the same car pulled out and stopped in front of her on Belmont Street. The same four boys were in it. The two in the back seat got out. “You got any money?” one of them demanded.

  “I do, but you’re not getting it,” she said.

  “Oh, yeah? That’s what you think,” he said, and stuck a gun in her ribs.

  The gun “looked like a .25 caliber automatic, the kind you put the clip in the bottom,” Marilyn’s written statement continued. “The barrel was black and the handle was silver. I said to him, ‘You think that gun scares me? I’m going to die from something, whether it’s cancer or by you shooting me.’ Right after this, I heard the gun click.”

  The gunman reached in Marilyn’s pocket and took out two dollars. “That’s all the money you have?” he asked.

  “That’s all you see, ain’t it?” she replied.

  “You have more heart than your little brother does,” the gunman responded.

  Meanwhile, the second boy, who was supposed to be Wyatt Clayton, was “just standing there,” pounding his fist into the palm of his hand. He was about eighteen years old, about five foot nine, 150 to 160 pounds, with a slight mustache—a pretty fair description of Wyatt, who was fifteen, but looked older.

  After “two or three minutes,” the robbers drove off, and Marilyn called the police, who arrived at “about 3:03 P.M.”

  Eleven days later, Marilyn went down to the modus operandi section of police headquarters and looked at 140 full-length color slides of teenaged arrestees before selecting Wyatt Clayton as the boy who “just stood there.” She did not see a picture of the gunman or the other two boys.

  Twenty-seven days after the robbery, she picked out Wyatt Clayton from among eight young black men of similar height a
nd build in a police lineup. Her brother did not identify anyone.

  We had, of course, made a motion to suppress identification evidence—that is, to prohibit any mention at the trial of Marilyn’s having picked out Wyatt’s picture, or having identified him at the lineup—on the grounds that the photo identification was unreliable, because it was the product of “impermissibly suggestive” activity by the police, namely, showing Marilyn a group of pictures in which the only subject shown in handcuffs was Wyatt; and that Marilyn’s lineup identification was unreliable, because it resulted from her unreliable choice of the photo. We also argued that no one else in the lineup looked very much like the described perpetrator, so that Wyatt “stood out” unfairly.

  The judge denied our motion to suppress, as I expected he would—defense attorneys joke that the only ID procedure that would be found impermissibly suggestive would be a lineup that looked like “six nuns and a refrigerator.” But the hearing on the motion did give me an opportunity to question Marilyn under oath before the trial.

  Up against this “Teen of the Year” with photographic memory, Wyatt was completely outclassed. He didn’t remember much of what he was doing on the crucial Friday night and Saturday afternoon, and what could be reconstructed was better forgotten. He’d spent much of the time smoking marijuana and shooting craps with his friends.

  Wyatt’s mother was able to recall that she had seen Wyatt at home when she returned from grocery shopping at about 3:00 P.M. that Saturday (the time of Marilyn’s robbery), but she was Wyatt’s mother, and most judges probably shared my supervisor’s view that “God put mothers on earth to lie for their children.”

  After many hours of going over their accounts with Wyatt and his friends, trying to get them to refresh one another’s memories, I decided against an alibi defense. Alibi defenses in general are viewed with disfavor by defense attorneys. When you put one on, you are pitting the defendant’s story against the complainant’s story, and the fact-finder (judge or jury) will tend to reach a verdict based on the one that’s more believable, regardless of how flawed it may be. It is better to pit the complainant’s story against the standard of “proof beyond a reasonable doubt,” which is tougher competition than an opposing story from the defense, unless it’s an exceptionally good one. Wyatt’s was not.

  The other reason I decided to focus on picking apart Marilyn’s story, rather than presenting Wyatt’s, was that I did not believe Wyatt’s. I didn’t believe him because I considered him a deadbeat: he had failed to appear at about five appointments with me, which was three or four more than the average for my clients. And I didn’t believe him because he had flunked a lie detector test, which I had him take in the first place only at the insistence of the lawyer on his prior purse-snatch case, who swore that she knew him well enough to know that he couldn’t have been involved in an armed robbery.

  Polygraph examination results are inadmissible as evidence in D.C. courts (and generally throughout the United States) because of the fear that juries would give them more weight than their reliability warrants.

  Dr. Martin Orne, a professor of psychiatry at the University of Pennsylvania and an authority on the polygraph, has found that polygraph examiners vary greatly in their accuracy, and even the best are wrong 5 percent of the time.

  Reliability aside, polygraphs offend our quasi-religious belief in adversarial examination of witnesses as the best means of finding the truth. Polygraphs don’t belong in a court, any more than computers belong in a church. These are special preserves set aside for a particular kind of search for a particular kind of truth. NO MACHINES ALLOWED.

  But when you have a client who really seems innocent, it can be helpful to have him tested. If he passes, you can bring the report, along with other exculpatory evidence, to the prosecutor and ask him to drop the case, lest an injustice be wrought by the vagaries of a trial. If the prosecutor refuses to drop the case, then you make a motion to the judge asking that polygraph results be admitted at trial. The judge always denies the motion, but it signals him that your client has passed a lie detector test, which is a useful thing to have the judge know.

  I explained all this to Wyatt, assuring him that if he flunked the test, I would throw it away; no one would ever hear of it; and it would have absolutely no effect on my view of him or my efforts to get him off.

  I hired a private polygraph examiner. (P.D.S. had limited funds for hiring experts. Appointed private attorneys could make a motion requesting funds from the court.)

  The examiner first conducted an “acquaintance test.” He told Wyatt to write down a number from thirty-one to thirty-nine, without showing it to him. He then instructed Wyatt to answer “No” to every question, and asked him, “Did you write the number twenty-nine? Did you write the number thirty? Did you write the number thirty-one?” and so on up to forty. Then, “Did you lie about a number on this test?” “Now answer truthfully,” the examiner said, and repeated all the questions.

  At the end of the series of questions, the examiner had identified the number Wyatt had written, and also identified the idiosyncratic changes in Wyatt’s respiration, pulse rate, blood pressure, and galvanic skin response (the skin’s resistance to an electrical current, which is affected by glandular secretions, particularly sweat) that accompanied deception. He told Wyatt his number, reinforcing Wyatt’s respect for, and response to, the machine.

  The examiner then asked Wyatt, “Were you involved in that Marilyn Tracy robbery?

  “Were you involved in that Marilyn Tracy robbery on Saturday, 10 December, 1979?

  “Did you ride in a Mustang automobile on Saturday, 10 December, 1979?

  “Do you suspect someone by name of being involved in that Marilyn Tracy robbery?

  “Do you know for sure someone by name who was involved in that Marilyn Tracy robbery?

  “Were you in any way involved in that robbery?”

  He went through the questions three times. Wyatt answered every question “No.”

  “Examinee’s responses to the relevant questions regarding his knowing who was involved in the Marilyn Tracy robbery were indicative of deception,” the examiner reported. “These test charts indicated further that he became so tense during the examination that normal reactions were diminished. This tenseness increased so rapidly during each test chart that instrument rebalancing procedures were required two or more times. In the opinion of the examiner, this is an indication of ‘overall’ deception to the remaining relevant questions. This testing precluded this examiner from clearing Wyatt Clayton of any involvement in the Marilyn Tracy robbery.”

  I knew that Wyatt, even if innocent, had every reason to be nervous, being questioned alone in a closed room by a middle-aged white ex-FBI agent, who put two rubber tubes around his chest, taped electrodes to his fingers, wrapped a blood-pressure cuff around his wrist, and hooked everything up to something electronic in a metal box. I knew that nervousness was supposed to be compensated for by “instrument rebalancing” and not throw off the test. I knew that the tests were far from perfect, and were inadmissible in evidence for good reason. What I did not know was that, having read a report of failure, I would be unable to disregard it.

  After the test, I presumed Wyatt guilty, which is to say I viewed the evidence in the same light as would the judge and prosecutor. From a purely technical standpoint, this was a helpful attitude. It caused me to take a skeptical view of the defense case and to spot weaknesses in it. It’s no good being the only one in the courtroom who really thinks that the government has the uphill battle (burden of proof).

  As for motivation, apparent guilt cuts both ways. An obviously guilty client poses the greatest professional challenge. Winning an “impossible” case is a real feather in your cap. On the other hand, you feel less personal pressure: if you lose, at least justice wins. It’s like walking a tightrope with a net. With an innocent client, there’s no net. You must win. But if it’s clear to you that your client is not guilty, chances are it’s pretty
clear to everyone else, too. Anybody can get an obviously innocent person off. There’s no glory in that.

  In any event, thanks to my investigator Ernie, I ultimately came around to thinking that Wyatt was not guilty, again.

  Marilyn’s brother told Ernie that although he didn’t identify Wyatt at the lineup, “I could have, because Marilyn told me on the way down what he looked like.” He also contradicted Marilyn’s claim that a bullet had gone through his hat.

  Marilyn had attempted to fabricate an identification by her brother and had invented a dramatic detail. When the complainant and defendant don’t know each other, as opposed to when they are, say, rivals in love or dealers in dope, one doesn’t expect to find this sort of lying in the complainant’s account of the incident, and therefore one tends not to look for it. We began looking.

  I called the prosecutor with a proposition: “If I can show you ten material* contradictions in Marilyn’s statements, will you drop the case?”

  If he didn’t drop it, we were in trouble, because many of the contradictions involved Marilyn’s accounts of events other than the robberies themselves, and it would be hard to get them into evidence in a coherent way, if at all. The judge would want to hear nothing beyond the “positive identification” by a “stranger-victim” with no reason for bias, and convict. The fact was that Marilyn identified Wyatt as her robber. The prosecution’s theory was simple: Wyatt robbed her. The defense’s theory was Byzantine: Marilyn was jealous of the attention her brother received because he was robbed; therefore, she pretended that she herself got robbed, made up a description of a robber, and picked out Wyatt’s picture because he looked like the description she had made up, and, of course, selected him at the lineup because she recognized him from the picture she had picked.

  The prosecutor said I should show him my evidence on the morning of the trial, and if the contradictions were really “material,” he would drop the case. It was a high-risk proposition. If he didn’t drop it, all I would succeed in doing would be to give away our defense.