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

by James S. Kunen

  In the case we were going to try, the police had found a pistol under the seat occupied by Roberto in a stolen car. He told me that he did not know that the car was stolen. Some friends of his had honked at him and offered him a ride. He got in the front seat; his three friends were in the back. The driver was a stranger who could have owned the car, for all Roberto knew. He noticed nothing suspicious about the car. The ignition had not been “popped”; the key was in it. When a police car began to chase them, a boy in the back seat threw a pistol into the front; it bounced off the dash and landed on the transmission hump, and the driver shoved it under the seat, under Roberto.

  I went out with Bert Meyers, a gangly young man from Tennessee who was interning as an investigator while waiting for his country music career to take off, to find the boy who Roberto said had thrown the gun. We walked up three flights of unlit stairs in a housing project, knocked, and were admitted into an apartment by three teen-agers, who were sitting around in the dark smoking marijuana. I had some vague plan in mind to have the gunman, who had already pled guilty to U.U.V., and been on and off probation, testify that Roberto had been the last one to get into the car—just to corroborate some part of Roberto’s story. (It is always helpful to have another witness corroborate any part, however, minor, of your client’s story, to convey the idea that it is not made up out of whole cloth.) This plan of mine stopped making sense to me about the time the apartment door closed behind us and we found ourselves standing beyond the law with the gunman. Our plan didn’t make much sense to him, either. He said he would be happy to help Roberto, so long as it did not involve going anywhere near the courthouse. My investigator and I were allowed to leave.

  The only defense witness would be Roberto.

  The night before his trial, I sat down with Roberto and went over his story. I read to him what he had told me originally. I then asked him questions designed to elicit that story at trial.

  Rehearsing witnesses is not only proper, but absolutely necessary to effective representation. You are not allowed to use leading questions in the direct examination of your own witnesses, as you are in cross-examining “hostile” (adverse) witnesses. A leading question is one that suggests to the witness the answer that is desired. “You didn’t know the driver, did you?” is leading. “Did you know the driver?” is arguably leading because it identifies a material fact and is answerable by “Yes” or “No.” You’re supposed to ask your witness something like, “Who was in the car?” If you haven’t rehearsed, he won’t know what you’re getting at, and his story won’t come out. As Clint Levine taught us at NYU, “On direct, you want him to respond to the question, to tell something, not just answer ‘Yes’ or ‘No’ to questions he doesn’t understand—that’s for cross-examination.”

  Before rehearsing your witness’s testimony, it is proper to prompt him as to what the testimony should include. He doesn’t know what’s important; you’re the lawyer. You have to explain the legal significance of certain facts. For example, if a defendant charged with burglary is asked by his lawyer simply, “What happened?” he is likely to omit the fact that he was drunk, since getting drunk is widely thought to be “bad.” But if the lawyer says, “Burglary carries a sentence of up to thirty years. Unlawful entry carries a sentence of no more than six months. It’s burglary if you go into the house with the intent to commit a crime inside. Otherwise it’s unlawful entry. So if you were too drunk to be intending anything, it’s unlawful entry. Now, what happened?” the client is likely to tell the truth about his drinking. Moreover, the client is now marginally closer to standing on the same footing as a John Mitchell or a Maurice Stans facing criminal charges. He knows all there is to know, and he should know no less.

  (On the prosecution side, once apprised by the D.A. of the legal requirements for the admissibility of evidence, police are able to recall, with stunning consistency, that evidence seized by them was “dropped” by the defendant, or was “in plain view,” rather than found in the course of an illegal search, which would cause the evidence to be thrown out of court.)

  I reminded Roberto that he was guilty of unauthorized use of a vehicle only if he knew or should have known that the car was stolen. He was a quick study. He remembered to include the important points—about the key and not knowing the driver. But we ran into a problem about the gun.

  “Okay. The police are chasing you. Then what happened?”

  Roberto looked away and smiled, as though embarrassed.

  “You know, about the gun,” I prompted. “When I ask ‘And then what happened?’ that’s when you tell about the guy in the back seat tossing the gun in front.”

  “I can’t say that,” Roberto said, shaking his head and smiling his sheepish smile.

  “Why not?”

  “The dude would kill me. He’s always got a gun. I can’t say he’s got a gun.”

  “I see. That is a problem,” I said. I paused for a moment, not so much thinking as letting something well up inside me. “Well, you know, Roberto, when I talked to you the first time and you told me about the gun, you’d just been arrested; you’d been up all night; you were in the lockup; you were probably tired and confused. Maybe you weren’t thinking clearly? Maybe you remembered wrong? Maybe if you think about it now, you’ll remember that you never knew anything about the gun? Maybe you don’t know whose it was? Maybe you don’t know where it came from? Maybe the first time you saw it was when the police took it from under the seat?”

  Roberto closed his eyes, put his hand to his forehead, and thought for a moment. “Yeah, I don’t know nothing about that gun.”

  “Fine,” I said.

  The Code of Professional Responsibility prohibits a lawyer from “participat[ing] in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.”1 I didn’t know what had happened with the gun in that car. Still, I felt a little queasy about possibly encouraging perjury, and said so, to another lawyer.

  “If it makes you feel any better,” he responded, “you probably aren’t getting your client to lie. You’re getting him to stop lying, or, at worst, to switch from one lie to another, if he chooses to do so.”

  The trial went rather well. The government attempted to introduce a bullet found wedged into the passenger’s side of the front seat, where Roberto had been sitting, but I objected that I had never been told about it, in violation of the rule of discovery requiring the prosecution to disclose to the defense any physical evidence that it intends to introduce. The judge suppressed the bullet, in effect directing himself to forget about it. (This being a juvenile trial, there was no jury.) Roberto testified flawlessly, and the government couldn’t rebut anything he said.

  The government didn’t prove to my satisfaction that Roberto knew the car was stolen, or that the gun was in it. The judge, however, perhaps relying on some sixth sense, found Roberto guilty of both charges.

  Roberto was sent back to Oak Hill, where he would have remained anyway because of his prior convictions and pending charges.

  I felt like a real lawyer. I had had a trial.

  §4-02

  To my dismay, my daily work did not immediately change to reflect my experience and stature. The next time I picked up cases, I was assigned one client who had been arrested for being a “fugitive from institution” and another arrested for “failure to appear” at a court hearing. A colleague asked me if I’d gotten anything interesting. “No, just more garbage,” I said. It seemed I’d never get any murders, or even attempted murders.

  It turned out that the fugitive from institution (Children’s Detention Center, Milwaukee) was Patricia Dawn Princetter, a.k.a. Sandy Jones, a.k.a. Patricia Golden. I recognized her as the blond girl I had seen in court the previous week, when she had been picked up for streetwalking. She was to have been returned to Milwaukee, where she had been facing trial on other prostitution charges before she came to D.C.

  Patricia told me that she was put on a plane to Milwaukee, but just be
fore arrival she went into the plane’s restroom, changed clothes, and put on a dark curly-haired wig. She walked off straight past the cops waiting to meet her and called her pimp from the airport. He put her on the next plane back to Washington. She was rearrested soon after.

  To maintain absolute control over their “girls,” pimps need to keep them away from friends and family. Also, when a girl gets arrested repeatedly in a given city, the pimp has to post higher and higher bail to get her back on the street. So pimps move their girls on “circuits” from city to city. Patricia was on “the Great Northern Route.”

  Patricia had recently turned fifteen.

  She looked younger. At five foot three, ninety-eight pounds, with her button nose and pink lipstick smeared over her lips, she looked like a little girl playing house who had gotten into her mommy’s makeup.

  She was near tears in the cell. I asked if she wanted me to leave her alone for a minute. She said no, took a big sniffle, and got hold of herself.

  We went in front of the judge, who ordered that she be returned to Milwaukee (again) within five days. Even as the judge was entering his order, someone from the United States attorney’s office sidled up to Patricia and handed her a subpoena to appear the next day before the grand jury that was investigating pimping in Washington.

  The Bicentennial celebration had prompted a lot of pimps to add Washington to their circuits. With the heightened competition in the prostitution industry came a rash of “loyalty”-enforcement violence by pimps against their girls, including three murders. The murderers were commonly known, but the cases against them were not provable in court because the prostitute witnesses were intimidated. A unit of six detectives and one assistant United States attorney was assigned full time to develop and present evidence of violations of D.C.’s “pandering” (pimping) law to the grand jury.

  Four hundred women arrested on prostitution charges were interviewed. Although most professed love for their pimps and refused to say anything against them, the grand jury did learn that many women were being coerced into prostitution. Pimps commonly forced their girls into drug dependency, assaulted them, and took all their money so that they had no way to leave.

  As she was led away to be taken to the Receiving Home, where juveniles detained for brief periods were held, Patricia asked me whether she should talk to the grand jury. Since I had no idea, I whispered to her that I would call her in the morning about that.

  I sought advice from other P.D.S. attorneys. “Don’t let her testify,” one said. “She could be killed for informing on her pimp.” My supervisor suggested that I find out what my client wanted to do.

  I called her up. “If you testified, would your pimp beat you up?”

  “Oh, no, he’d never hurt me. He’d have one of his friends do it.”

  It is in the nature of the English language that no amount of analysis of the preceding two sentences yields any basis for discerning whether Patricia was describing her pimp’s habitual behavior in the past or predicting what it would be in the future, or both.

  Patricia tended to be vague. And she happened to be dealing with me during one of the rare but not unheard-of periods when my mind was encircled by a wall of weariness that no amount of coffee could breach. All that was clear was that she wanted me to decide for her what to do—not an unreasonable desire, considering that I was bigger, older, better dressed, not locked up, paid to give advice, and presumably privy to arcane information about which she could not dare to guess.

  I explained her situation and her choices. She could say she would plead the Fifth Amendment—refuse to testify because it could get her in trouble—and the prosecutor wouldn’t even bother to bring her in to the grand jury. Or she could testify and in return get a letter from the U.S. attorney to the Milwaukee judge, recommending leniency for her.

  “You’re a pretty wild kid, right?” I asked. “Sometimes you do something one minute that you didn’t think of the minute before? Am I right?”

  “Yeah.”

  “Well, you better stop and think about this seriously. If you’re ever coming back to Washington, you better not testify.”

  “Oh, no, I’m not coming back.”

  Assuming she really wasn’t coming back to D.C., I figured the danger to her should be minimal. (Later it occurred to me that this made no sense, since her pimp’s operation covered Milwaukee as well.) Anyway, she didn’t seem to be frightened. I recommended that she testify. That’s what she decided to do.

  (This was bad advice. Testifying put her at some risk, whether minimal or not. And there was nothing in it for her. I can’t imagine that the Milwaukee authorities would have viewed her as anything but a victim, whether she testified or not. My rage at the pimp distorted my judgment. Lawyers try to be emotionally detached for a reason.)

  “I see you’ve dressed up for the occasion,” I almost said when Patricia was delivered to testify the next afternoon. She was wearing what looked like a 1920’s flapper dress: white satin, bare shoulders, fringe hanging down over the bust.

  We sat down in Assistant U.S. Attorney Mary Cipriani’s office with three cops: a black defensive tackle in a straw cap; a white yokel with Wildroot-pasted hair and buck teeth; and a mod squad roller named Flaherty. All three were wearing shoulder holsters with big gun butts sticking out. Flaherty, in his mid-thirties, with shoulder-length red-blond hair combed up and across a bald spot in front, and crinkly lines around his eyes from constant grinning, seemed to be the leader. He smiled as he talked to Patricia, as though we were all in this together. I felt an instant distrust of Flaherty. I didn’t know who or what he really was.

  These cops, three of six assigned full-time to the pimping investigation, were there to question Patricia while she waited her turn in front of the grand jury. Flaherty, who’d been sitting with his feet on the U.S. attorney’s desk, leaned forward, pen to paper. He asked Patricia how she met her pimp.

  “I met him at a bus stop.”

  “What’d he say?”

  “He said, ‘Come here.’”

  “What did you say?”

  “I said, ‘No, you come here.’”

  The pimp asked her to come home with him. She went.

  “Why?”

  “To see what he was about.” When she got there, she met his ladies. “I knew right away he was a pimp.”

  “How’d you know?”

  “The girls told me.”

  She lived with him for three weeks.

  “Did you have sex with him?” Flaherty asked.

  “Not during that time.”

  “Sounds like a very patient man.”

  “I was very patient.” Patricia broke into uncontrollable giggles. “Stop looking at me!” she said. “Why are all of you looking at me?”

  I was not. I was reading a newspaper clipping on the wall about a woman’s life in a massage parlor.

  “You feel like a star, huh?” Flaherty said.

  “What?”

  “You feel like a star. The spotlight is on you.”

  She just wanted people to stop looking at her. The black cop put his head down and stared at his lap. From time to time during the questioning, he sighed. Maybe he was just tired. Could he possibly still be touched by this? The other white cop sat looking at the ceiling.

  Patricia came to Washington with her pimp, who got her a hotel room. He told her “not to mess with young dudes.”

  Flaherty asked her whether the pimp said not to turn dates with blacks. She said no, he didn’t say that. Assistant U.S. Attorney Cipriani, who’d just walked in, looked at Flaherty quizzically. He said, “Well, we just had one in here the other day whose pimp told her not to turn dates with blacks.”

  He asked Patricia whether the pimp told her to use rubbers.

  “Oh, I’d do that anyway, for my own self.”

  Her first night she made $200.

  “How much did you make on average?”

  No answer.

  “Did you ever make two hundred fifty dollars
?”

  “Yes.”

  “Ever make less than two hundred dollars?”

  “Yes, sometimes one hundred fifty.”

  “What was average?”

  No answer. She didn’t know what “average” meant.

  “How much of the money did the pimp let you keep?”

  “A half.”

  “He let you keep one hundred out of two hundred?”

  “No, about fifty—for clothes, food, anything I wanted.”

  “That’s more like a quarter, right?” Ms. Cipriani said.

  Patricia smiled and giggled self-consciously. “Yes.”

  Cipriani figured Patricia worked thirty days at $200—that would be $6,000 she made.

  It was time to go in to the grand jury. Patricia rose, smiled, took a deep breath. She was nervous. Opening night, school play. “Give ’em hell,” I said.

  The cops and I chatted about prostitution. “Washington is wide open,” Flaherty said. “You can start in the prostitution business any time you want. In Chicago, for instance, you’d get constant hassles from organized crime, unless you knew somebody. In D.C., the only hassle you get, to the extent it is a hassle, is from the police.”

  In fifteen minutes, Patricia returned. Ms. Cipriani said she did fine.

  Patricia said she wanted to talk to me. We stepped across the hall into an empty office.

  “What’s going to happen to me?”

  “I don’t know your record. I don’t know how the Milwaukee courts work. So I can’t say.”

  She looked at the floor.

  “All right. Look. Here’s what’s going to happen. You’re going to get on a plane to Milwaukee. You’ll be picked up and taken to some kind of holding …”