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

by James S. Kunen

  I went in on Monday morning with my lists. Wyatt and his mother waited outside as I sat down with the prosecutor in his white wallboard cubicle. An easy-going forty-year-old, he was much too old for his job, knew it, and didn’t care. The rat race was not for him. He paced himself, methodically chain-smoking Camels and Trues, alternately.

  I placed my long yellow lists on the desktop facing him. Reading upside down, I pointed out each item as I explained it.

  “Regarding the Friday night robbery of her brother,” I began, “Marilyn said in her January statement that the robbers’ car almost hit her, and ‘I didn’t get a good look at the two in the back.’ But at the identification suppression hearing, she said she got ‘a good look at them’ for ‘about maybe ten seconds’ as the car sped past. She said the car came out of the alley backward; her brother said frontward. She said a bullet went through her brother’s hat; he said it didn’t. She gave three different versions of the first three digits of the car’s license plate.”

  The prosecutor silently put red Xs on my list in the margin beside the bullet-through-the-hat and the direction the car traveled. He put a big red star beside the “ten-second look” at the speeding perpetrators in the back seat. The license plate he left alone. He crushed the life out of a Camel, lit a True, and invited me to continue.

  “Regarding her own robbery on Saturday, she said in January that the gunman was wearing a brown jacket, ‘about the same color as your [Ernie’s] sweater.’ But in February she gave Ernie a detailed account of a subsequent confrontation at which the robbers supposedly threatened her in front of a liquor store. She said the gunman ‘had on the same blue jacket he had on at the robbery.’”

  “Well, anybody can make a mistake about clothing,” the prosecutor said.

  “Of course, that’s just it,” I argued. “Anybody would say ‘It might have been brown’ or ‘I think it was blue,’ but she was positive it was brown when she was talking to Ernie in his brown sweater, and now she’s positive it was blue. She’s always positive.”

  The prosecutor seemed to mull that over as he smothered one cigarette in the ashes of another.

  “Read on,” I said. The context of these inconsistencies was more important than the inconsistencies themselves. Continuing her description of the February confrontation outside the liquor store, she had told Ernie, “He stood right in front of me and said, ‘You go to court and you’re going to end up dead.’ I said, ‘If you wanted to kill me, you would have done it the day you robbed me in the alley.’”

  I told the prosecutor, “She said in January she was robbed on Belmont Street. Her brother was robbed in the alley!”

  The prosecutor put a red X in the margin.

  Her account of the liquor store scene continued: “He said, ‘You still got a lot of heart, don’t you?’ And I said, ‘Yes, and I’m going to die with a lot of heart, too.’ At this point, an employee of the liquor store came out and said, ‘Are you okay?’ I said, ‘Yes, I don’t need no help with this little punk.’ The gunman said, ‘Girl, I am going to punch you in your face.’ I told him if he did, he wouldn’t live to tell about it.”

  “She’s talking to a man with a gun?” I said to the prosecutor. “Where have you heard that kind of dialogue before? In her other statement. And where have you heard it before that? IN THE MOVIES! Nobody really talks like that to someone with a gun, at least no one who’s alive now.”

  The prosecutor did not put his red pen to the paper, and turned the page.

  In January Marilyn said the robbery took two or three minutes. At the identification suppression hearing in July, when she knew that her opportunity to observe the perpetrators was at issue, she said “five or six minutes.” The prosecutor, knowing that the hardest thing to remember about events is their duration, was unimpressed.

  Ernie had interviewed every employee of the liquor store, and none remembered the incident. That merited a red question mark in the margin. “They might not have wanted to get involved,” he said.

  “Or maybe it never happened,” I suggested.

  I directed his attention to Marilyn’s account of yet another supposed encounter with the four perpetrators, this time at Thomas Circle, as she was jogging one night in March. The incident unfolded in a now-familiar pattern: One of the boys from the front seat got out and said, “Man, you’re a hard-head. You’re still going to court, aren’t you!” A prostitute Marilyn knew from the area came over to offer help. Marilyn declined: “No, I don’t need no help with them.” The boys sped off, in the same car with the big antenna “on the driver’s side.”

  “In January, she said the passenger side,” I told the prosecutor. That didn’t rate an X.

  The next point did: Marilyn told Ernie that, after the March confrontation, she had called the police from a drugstore, and that an officer made an “incident report” about the threat. No such report existed.

  I had saved the best stuff for last.

  I showed the prosecutor a transcript of one seemingly minor and irrelevant inquiry at the identification suppression hearing.

  Q. What’s your educational background?

  A. I will be starting back attending school in September.

  Q. What school would that be?

  A. Georgetown University Law School, Undergraduate Law School.

  Q. Do you have any college up to this point: have you attended any college?

  A. Yes.

  Q. Where was that?

  A. The school I just mentioned, Georgetown University.

  Q. You were a student at Georgetown?

  A. Yes.

  Q. I see. When was that?

  A. Last—the past year.

  I laid a piece of paper on the desk in front of the prosecutor. “Read it and weep,” I said. It was an affidavit Ernie had obtained from the registrar of Georgetown University stating that Marilyn Tracy was not and had never been a student at any division of the university—which was why, at Ernie’s suggestion, I had asked her the question in the first place. “You’ve got a pathological liar on your hands,” I said. “She lies even when she has no reason to.”

  “Do you have anything else?” the prosecutor asked.

  I did. Marilyn had described to Ernie three crimes, other than the robberies, of which she had been the victim within the past year. The first was a simple assault. The second was an obstruction of justice by her assailant, when he approached her and said, “If I go back to jail, I’m going to kill you.” Both cases had been dismissed by the U.S. attorney. The third was an attempted rape, which she escaped, telling her attacker, “If you want to rape me, you’re going to have to kill me first,” and then punching him in the eye and kicking him in the groin. She told Ernie she would soon be testifying at the man’s trial. There was no such trial pending.

  The prosecutor said he wanted to give Marilyn a chance to explain herself, and he asked me to wait outside. As I stood up to leave, I said, “One more thing: Marilyn told Ernie this morning that someone set fire to her car last night, to intimidate her. She said the fire department put it out. Why don’t you check that out?”

  I sat on a chair outside the prosecutor’s office for three hours while he conferred with a police detective, then with Marilyn, then with Marilyn’s brother, then with the detective again, and Marilyn again, around and around, verifying the contradictions I had pointed out, or resolving them. I watched the clock on the wall like a husband waiting for his wife to give birth—in the movies, or like an attorney waiting for a jury to come in with the verdict, also in the movies. Finally the prosecutor emerged and stated matter-of-factly as he walked straight by me, “We’ll drop the case.” Two armed robberies—poof, gone away.

  With the boundless energy and dedication that only an unpaid volunteer could have, my investigator had blown the government’s case out of the water.

  I walked over to the waiting room where Wyatt Clayton and his mother had been sitting all morning. “They dropped the case,” I said.

  Wyatt went
limp and slid down in his chair. “They dropped the charge?” he asked.

  “Yes.” I shook his hand. He smiled a smile I can still see. His mother dropped her head back against the wall and sighed.

  Not long after, I ran into the prosecutor and asked what he had found out about the “firebombing” of Marilyn’s car.

  “We checked it out with the fire department,” he said. “It really did happen.” He looked at me blankly and I looked at him blankly, and we both shook our heads.

  We would never know whether Wyatt Clayton had committed the crimes, but that was beside the point. The complaining witness had lied. She was not credible. In our world, that’s what mattered.

  Misidentification is a common phenomenon. Even as the Clayton case was unfolding, I had another juvenile client who was stopped one night by a scooter cop who had “monitored a lookout”—heard a description broadcast—for a black teen-aged boy in a striped jersey. The cop took him to the scene of a mugging, where he was “positively identified” by the white woman victim, who naturally expected him to be the perpetrator, since he had been captured by the police, and wanted him to be the perpetrator, so that he would be punished and kept from victimizing her again.

  Novice that I was, I probably would have assumed he was guilty myself, were it not for the fact that he was an A student in high school and had never been arrested before. Those of us who can claim neither of these characteristics are reluctant to acknowledge that they correlate with innocence, but they do. When stopped, he was walking home from work at McDonald’s—employment under the Golden Arches being another reliable indicator of rectitude—and his time card at work proved that he could not have committed the crime. The charges were eventually dropped.

  Between this and the Clayton case, I was getting the idea that eyewitness identifications were grossly unreliable. I was right.

  Experiments in behavioral psychology have shown that “accurate recall is the exception and not the rule.”1 Witnesses typically remember more than they actually observed, filling in gaps by “remembering” what they expected or wanted to see. Ten thousand partisan eyewitnesses at a baseball game can have an abiding moral conviction that they saw their man slide into home safely, while fans of the other team are just as certain that they saw him tagged out, though a dispassionate videotape shows nothing but a cloud of dust.

  Witnesses are often more positive about the false details they have unwittingly invented than about those which are in fact true. To make matters worse, witnesses are tremendously suggestible. In an experiment by Dr. Elizabeth Loftus, twice as many witnesses remembered seeing (nonexistent) shattered glass in a filmed automobile collision, when asked if they’d seen the cars “smash” together, as opposed to when they were asked if they’d seen the cars “hit.”2

  “Victims of assault are notoriously unreliable witnesses regarding the description of their assailants,” G. A. Talland concludes, “but then so are onlookers who watched in safety.”3

  §3-13

  Dr. Sherman was brought before Judge Ugast in July to be sentenced on the twenty-five counts of perjury to which he had pled guilty. Though the murder charge was dropped in the plea bargain, the judge could take it, and anything else about the defendant, into account in deciding what the sentence would be—anything from no sanction on up to 250 years in prison.

  What went on in the courtroom—like much of what goes on in courtrooms—was pure ritual. The lawyers had already submitted their arguments to the judge in writing, and the judge had already made up his mind, before court was called to order. The impassioned calls for retribution or mercy, from the prosecution and defense, respectively; the tear-choked plea of the humbled defendant; the Solomonic deliberation of the judge; were all parts of a drama played out for the community, but it was a drama for which the community had paid and to which it was entitled.

  Sherman’s lawyer Bob Muse argued that there was no need to lock the doctor up to deter others, nor in order to punish him. “His despicable, pathetic, tragic existence is deterrence enough to anyone who reads the papers.” As for punishment, “He doesn’t need to be locked up. His misery will be with him forever.” Muse asked for probation.

  The prosecutor passed quickly from the perjuries themselves, which, she said, “represent only a small part of Dr. Sherman,” to the more sordid activities of “this butcher.” “Running his abortion mill over fifteen years, he’s practiced cheap, cut-corners medicine, which resulted in the death of [the young girl].” She evoked again the image of a fetus-bearing garbage bag thrown into the Chesapeake; a woman “who was drugged and kept against her will in Dr. Sherman’s clinic, and after three days had a fetus yanked from her womb”; a woman who was given an abortion without her knowledge, “and lives to this day with the grief of losing a baby she wanted.” (I recalled Muse’s telling me that the doctor was being scape-goated for performing abortions at all.) She adverted to his censure by a medical society, the revocation of his hospital privileges, his numerous malpractice suits. For this “merciless swindler dressed in a doctor’s gown … worse than the usual vicious white-collar criminal,” she asked five to fifteen years.

  Muse got up again: “Your Honor, this man is the most battered, degraded man you’ll ever see. In a sense, he’s not worth the hypocrisy we’re all indulging in.”

  This contest to see who could say the more damning things about the defendant typified the general scramble as the prosecution and defense tried to outmaneuver each other, a scramble that saw Muse contrast Dr. Sherman with his usual clients, whom he called “the dregs of society,” only to have the prosecutor leap to their defense: “What he’s talking about are disadvantaged young people from the ghetto. It would be an insult to the community to apply a double standard and not incarcerate him, as so many young people are incarcerated here every day.”

  Dr. Sherman put in a word for himself, sounding very pathetic. Pudgy and round and bald, he looked like a giant baby. “Judge Ugast, this is a very strange experience for me. I don’t understand where I’ve been, where I am, or where I’m going. I don’t understand what’s happened. From a life of joy I’ve moved to a life of humiliation and destruction. I wake up in the middle of the night in a sweat from nightmares. No one can understand the pain, suffering”—he choked back tears—“remorse I feel.” He went on to describe his humble beginnings in poverty, his unwavering dedication to medicine, and his hope that the judge would be guided by God. Since he denied any wrongdoing, it was unclear what he felt remorse about. It was apparent that he really didn’t understand how he had come to judgment. There was something about life, something about causality and morality, that he just didn’t get.

  Judge Ugast called the sentencing decision the most difficult in his five years as a judge. He said he’d studied everything submitted—including more than a hundred letters in support of Dr. Sherman.

  In a quiet, calm, friendly voice, he explained that perjury undermines the community’s judicial system, and that, therefore, it was a serious offense and that, therefore, he was sentencing Dr. Sherman to from two and a half to seven and a half years in prison.

  The judge later granted a defense motion to reduce Dr. Sherman’s sentence because of his ill health, and he was paroled after serving fourteen months. Following his release from prison Dr. Sherman resumed the practice of medicine, in Brookline, Massachusetts. In April 1983, the Massachusetts Board of Registration of Medicine revoked his license.

  §3-14

  Reginald Chatsworth Dickinson, the Georgetown burglar, would sit in my office silently weeping. It was very hard for him to say things straight out, but by answering questions, usually with just a “Yes” or “No,” he told me that his mother and her boyfriend were having drunken, violent fights, and he couldn’t stand it. But in his sixteen years he’d never been away from home, and the idea of going to a foster home or shelter house of some sort—in the unlikely event that I could get him such a placement—frightened him. He didn’t know what to do.


  What he did do was commit still more burglaries. Soon after he was put on probation, he was arrested again. I couldn’t keep him on the street this time. When the door of the lockup closed behind him, he cried. I don’t think he was sorry he’d kept on breaking into houses. He was just sorry that he was locked up, and he probably thought that he didn’t deserve it.

  §4-01

  I had been in business nine months before I had a trial. Most of my cases had been disposed of by pleas or were still in the pipeline, being continued from one trial date to the next, a month at a time, until they would be old enough to be at the head of the list for a trial judge, at which point, if the government’s witnesses were still available, we would plead guilty to something. While cases aged, I would have them thoroughly investigated, so that I could explain to my client how his trial would probably go (badly), so that he could reach an informed decision about whether to plead (yes), and not feel that he was being sold down the river. Although it was not my department, I did feel that the likelihood of rehabilitation increased if the defendant felt he had been dealt with fairly by his lawyer and others in the system.

  I finally went to trial when I got a client who had nothing to lose by having one. Roberto Lewis, sixteen, had pled guilty before, lots of times, for unauthorized use of vehicles and purse snatches, and had been committed to Oak Hill, the maximum-security juvenile facility. He was awaiting trial on outstanding charges of unauthorized use of a vehicle and carrying a pistol without a license, when he escaped. He remained at large for a year, until he was arrested in another stolen car. We were going to trial first on the old U.U.V. and C.P.W.L. case. No matter how it came out, Roberto wasn’t coming out.

  Roberto Lewis had some unappealing characteristics: a limp handshake; a hunched-over, shuffling walk; a habit of lolling his head from side to side and smiling at you-knew-not-what. The very fact that at sixteen he looked twenty-five was somehow disagreeable. But I liked Roberto because he was intelligent, affable, and responsive. He seemed to trust me right away, and to open up to me—he showed me portraits he had drawn of his girlfriend, a slow-witted young woman with thick eyeglasses who had met him just before his recapture. She sat in the back of the room whenever Roberto appeared in court. The drawings were very true to life.