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

by James S. Kunen

  “Detention Center.”

  “Right. You’ll wait there until you come to trial.”

  “I couldn’t stand it if it was like four weeks.”

  “Well, tell your Milwaukee lawyer that. I’d say you’ll probably plead guilty to something.”

  “That’s right.”

  “And there’s no reason to delay that. Why wait? Plead guilty tomorrow. Then the judge will get a letter from the U.S. attorney here, saying you were helpful. And he’ll figure, ‘I guess she really wants to go straight.’ And your lawyer will put together some kind of counseling program to help you. The judge will go along with it. No one wants to punish you. The judge will say [I shook my finger], ‘Now listen here, young lady …’”

  She smiled, giggled, shook her own finger. “‘Listen here,’” she imitated.

  “But listen, there will be some bad times. You probably don’t get along with your mother that well …”

  “No, it was my father I had trouble with.”

  “But he’s gone?”

  “He’s deceased.”

  “Well, you may find it difficult getting along at home after you’ve been out in the world. And it’ll be hard sometimes at the Detention Center. But if you know there’ll be hard times, and you expect them, then when they happen, it’ll be just like watching an old movie.”

  She hugged herself and smiled, saying, “Oh, I expected this,” practicing.

  “Listen, you’ve had some interesting experiences.”

  She just looked at me.

  “Well, it hasn’t been dull, has it?”

  “No,” she admitted.

  “Fine. You’ve had some interesting times. Now you can put it behind you and get on with your life, make some kind of life for yourself. Okay?”

  “Okay,” she said.

  We went back across the hall. I insisted that she get her thirty-dollar witness fee, but Cipriani said it was too late and suggested I get it for her the next day.

  “Do you trust me with your money?” I asked Patricia.

  She smiled. “Sure, you’re s’posed to be my lawyer. Do you have a dollar so I can get some cigarettes up the Receiving Home?” she asked tentatively. “Then you can take one dollar out of the thirty dollars you’re getting for me.”

  I gave her a dollar.

  I kept thinking of the last paragraph of the signed statement she gave the police when she was first arrested.

  Q. What do you want to do now?

  A. I want to get home and be with my mother, if that would ever be possible.

  The grand jury indicted twenty men, including “Gizmo,” “Delicious,” “Reds,” “Ricky Love,” and “Scooby-doo,” for violating the pandering law. Eleven pled guilty. One had his pimping case dismissed in return for a plea in another case. The cases of five others were dismissed because of the unavailability of witnesses. One defendant disappeared. The body of one, Scooby-doo, was found with barbells tied to it in a Florida bay. And one was found not guilty after trial.

  In the summer of 1978, before the offensive against pimps, there were, by police estimate, 300 prostitutes on the streets of Washington in a typical twenty-four-hour period. A year later, after the indictments, that number had fallen to 200. Within a year after that, street prostitution had returned to its former level, according to the U.S. attorney’s office.

  §4-03

  After nearly a year of handling juvenile cases, I began representing adults.

  Roberto Lewis, whom I had unsuccessfully defended on a charge of carrying a pistol without a license, had immediately escaped (again) from Oak Hill. A few weeks later, the assistant corporation counsel who had beaten me at that juvenile trial stopped me in the hallway to share what he seemed to consider exciting and amusing news. Roberto had been arrested for first-degree murder with a handgun. If I had won the gun possession case, this would have been occasion for some soul-searching, but as it was, my principal reaction was excitement at the slight possibility that I could get to defend Roberto on the murder charge, which would be prosecuted “upstairs,” in criminal court, before a jury. (The U.S. attorney had exercised his discretion to prosecute Roberto, who was now seventeen, as an adult.) I tore a small item noting the murder out of the newspaper. Perhaps there would be more to come.

  I related the prosecutor’s version of the murder to a couple of attorneys back at my office.

  “Roberto comes up to a stranger on the street, pulls a gun, and says, ‘Give me that camera.’ And the guy says, ‘No, you’ll have to shoot me first.’ So he shoots him.”

  “Well, the guy asked for it,” one lawyer said.

  “Hell yes, certainly,” said the other.

  We all laughed.

  A private attorney was appointed to handle Roberto’s murder case, but Roberto’s mother called me to say that she didn’t like him. He hadn’t contacted her, and she didn’t even know his name. She wanted me to try to take over the case.

  I wrote letters for both Roberto and his mother, requesting the judge to appoint me in place of the current lawyer, who, in fact, had earned a reputation as perhaps the laziest, sleaziest, and most ineffective lawyer in the jurisdiction, which was not an easy title to hold.

  My supervisor agreed to try to get me the case. I checked in with him one day to see if he’d made any progress. He said he’d been trying to reach the court-appointed lawyer, to convince him to withdraw, or at least accept our assistance.

  “Here, I’ll call him right now,” he said, reaching for the phone. “This action shouldn’t be taken to imply that I haven’t been doing this right along,” he hastened to add, in his lawyerly way.

  “Is Mr. Sandstone there?” he said into the phone. “Oh. Well, would you tell him that—oh, you know it’s me? And you will tell him I called? Okay. Thanks.” He hung up and looked at me. “Every time I call, I get this woman who sounds like I’ve jarred her out of a narcotic stupor. She always tells me he’s not there in such a way that it’s perfectly obvious that he’s sitting about six feet away from her with a needle hanging out of his arm.”

  I asked him to keep trying. If I could just get this case …

  §4-04

  It being October, Jan and I drove to the Maine Avenue waterfront to buy Chincoteague oysters. Oysters from that particular little Virginia bay are so far superior to ordinary oysters, so much firmer in texture and more delicate in taste, that it’s not quite adequate to call them terrific oysters; they leave oysterness behind, transcend oysterdom entirely, and are really something different altogether: they are Chincoteagues.

  For reasons having to do with their reproductive cycle and our calendar, you can eat Chincoteagues only in months whose names contain an R. September being the first such month after a four-month hiatus, it usually slips by before you have a chance to remember your old dining habits, and it’s October when you head down to the fish pier.

  As we drove along the Potomac, I pointed out two motor yachts tied alongside each other stem to stern, a configuration that struck me as vaguely obscene. But then, everything about yachts in the Potomac rubbed me the wrong way, and I noted with satisfaction that the self-satisfied fools aboard those boats had undoubtedly never been to the Maine Avenue fish market, which had not been declared chic by the Washington Post and therefore did not exist, so far as the great majority of white Washingtonians were concerned.

  Jan and I enjoyed the poetry of the place:

  Pruitts

  Seafood Is the Best

  We Carry a Line that Tops the Rest

  Food Stamps Accepted

  Seafood Delights

  From Captain Whites

  The fish were sold right off the decks of the half-dozen big boats tied up at the pier. They had every kind of fish imaginable, arranged in schools according to their kind, frozen in mid-swim atop oceans of ice, eyes wide with outrage, mouths downturned in anger: “Jumbo Croakers, Giant Blues, Large Butters, Boston Mackerel, Pan Trout, Red Snappers, White Bass, Spanish Mackerel, Fresh Pompanos”—one m
odifier per fish. It was an orderly world, except for the struggling masses of live blue-clawed crabs heaped in bushel baskets, which looked like crab hell. I asked one of the Virginia watermen how you could tell the males from the females, a necessary point of information for certain recipes, such as she-crab soup.

  “Now, here’s a female,” he said, as he picked one up in his gloved hand and showed me its belly. “What’s that blue marking look like to you?”

  “The Capitol dome,” I said. There was nothing else to say—it might as well have been a picture postcard.

  “Right,” the fisherman said approvingly. He tossed that one back and picked up a slightly larger crab. “Now, this one here’s a male, see, and if you look at the blue mark on his belly …”

  “Don’t tell me it’s the Washington Monument!” I said, but there it was, clear as life.

  This is the sort of thing that makes Washington the symbolic capital of the nation, in my book. The fish pier itself is a triumph of imagery. None of those boats have put to sea in fifteen years. Early each morning, trucks pull up to the dock and unload the fish, which are then loaded onto the boats. But they are beyond doubt the freshest fish in Washington, you buy them right at the pier, and it is a fishing pier. See the boats? See the water?

  Most people didn’t know what I knew about one of the boats: it had been the scene, several years earlier, of a spectacular multiple-victim machete murder. I shared this info with Jan—she liked local color, too. Just about anywhere I went in Washington, I knew of some crime that had happened there. I moved about in a criminal landscape.

  §4-05

  You never see sentencings on Perry Mason, but most defendants do end up being sentenced, and it’s at the sentencing stage that the lawyer gets his best opportunity to help these clients.*

  Sentencing is the least just, most arbitrary stage of the criminal justice system. Different judges give widely varying sentences for the same offense; even the same judge gives different sentences for the same offense to different defendants; sometimes a trend sweeps through the courthouse and all the judges start hitting harder, as when a high-profile murder has aroused the community; at other times, they all lighten up—around Christmas, for instance.

  I had one client who was sentenced to probation for shooting someone, whereas another client got nine years simply for carrying a pistol without a license. The client who got probation had lent some money to a friend so that he could “pay his rent,” and shot him—not fatally—in anger when he learned that he had actually used the money to buy dope. The judge apparently shared my view that the shootee was the bad guy, and that the defendant, who had never been in trouble before and was a Vietnam veteran, was the good guy. (I thought, and judges seemed to agree, that the government owed at least one break to anyone who had served in Vietnam.) The fellow who got nine years had committed armed offenses in the past, and had the misfortune to be sentenced by a notoriously draconian judge. One client benefited from “judicial discretion”; the other suffered from it.

  Some jurisdictions are experimenting with mandatory sentencing, whereby a specific offense carries a specific sentence, which judges have no power to vary. In addition to its obvious drawback—you can’t fit the punishment to the criminal—mandatory sentencing causes systemic problems: defendants can’t get a reduced sentence in exchange for pleading to certain offenses, so they insist on trials, jamming up the system; where the mandatory sentence is stiff, juries may refuse to convict. A compromise being considered is “presumptive” sentencing, whereby a certain penalty is automatic unless the judge gives a written reason for varying it.

  Convicted criminals develop an extreme sensitivity to what is “fair,” and a great deal of antisocial rage is attributable to one convict’s watching another man convicted of the same offense walk out of prison years before he does. The situation is exacerbated by the parole system. In Washington, the judge explicitly states a minimum period to be served before parole eligibility, which cannot be more than one third of the maximum sentence, but can be less: people get sentences of “five to fifteen,” of “five to twenty,” or of “fifteen to life.” Once the minimum time has been served, the prisoner’s fate is in the hands of the parole board.

  Parole was originally instituted as a liberal reform, to motivate rehabilitation, but in practice it is administered so inequitably—at the whim of unelected, inexpert parole boards—that prisoners themselves widely favor flat, determinate sentences, so that they would know in advance exactly how much time they had to do. Of course, restrictions on parole eliminate a valuable safety valve for alleviating prison overcrowding.

  It’s not surprising that there is so much debate about sentencing, because there is no general agreement about what incarceration is for; many inmates have never committed a violent crime, and those who have are often more dangerous when they come out than when they went in. Although the options are more limited in juvenile cases, the sentences are just as capricious. Amid all the confusion, one can state with confidence that absolutely anything can happen at sentencing.

  Usually by the time of the sentencing hearing the judge has made up his mind, influenced, one hopes, by the memorandum the defense attorney has submitted recommending a particular program, other than incarceration, perfectly suited to his client’s unique background and needs. Occasionally, however, particularly in run-of-the-mill cases to which he has not devoted a great deal of thought, the judge can be pushed to a desired decision by an effective presentation at the hearing itself.

  Just before Thanksgiving, Leon Lincoln, one of my first juvenile clients, came before Judge McCord for sentencing on a shoplifting charge for which he’d been convicted at trial in August. Things didn’t look too good for Leon. He was already on probation when he decided to help himself to a natty beige velour shirt at Hecht’s department store, only to be caught in the act. That was the fifth bust in our mutual career. He was always stealing things. Like most of my juvenile clients, he stole not to buy food, not to pay heat or rent, but so he could have something, so he could be somebody—and because he seemed to think that’s what was expected of him. It was only thanks to bureaucratic bungling that he was still on the street. His files were constantly being bounced back and forth between the judge supervising his probation and Judge McCord, who’d be sentencing him on this latest case; and at a few critical junctures the files were misplaced altogether, so that nothing at all could be done and he remained free.

  Judge McCord was a diminutive man with judicial gray hair, some of which fell over his eyes when he flew into a rage, which he did every morning, first thing. This propensity for fury spoke well for him. He did not regard himself as the king, by divine right, of his court, as did too many of his judicial colleagues, once they donned the mystical black robes with which they were “invested” upon becoming judges. He considered himself a public servant with a job to do, and he was enraged when his efforts were frustrated, as they were every day.

  This day he was angry because he saw that he was slated to handle the impossible total of sixty-five cases, and he got angrier when he saw that probation officer Delores Stone, despite his order to her to prepare an indepth report on Leon Lincoln, had submitted, minutes before he took the bench, a hastily typed rehash of her previous reports.

  Delores Stone did not mean, but be. She did nothing, and her awesome inertia made the idea of ever getting her to do anything, even go away, an impossible dream.

  “There doesn’t seem to be any mention at all in your report of any suggestions from Mr. Kunen. Didn’t he communicate with you?”

  “Your Honor,” I interjected, “before I committed my ideas for a sentencing program to writing, I called up Ms. Stone and told her the ideas, and asked her for any criticism, any feedback, any suggestion, any input, asked her if there was anything I might do to assist her …” I could tell I was really rolling, by the ease with which the redundancies tripped off my tongue. Redundancies give a speech momentum, and lend a certain legal
flavor to otherwise bland palaver.

  “And what did Ms. Stone say?” the judge asked me while Ms. Stone sat, as she always sat, idly by.

  “I would characterize her response as ‘noncommittal,’ Your Honor,” I said. In fact, she was, as always, hostile, and had refused to discuss the matter, but I thought the dignified and understated “noncommittal” would get across the idea of her uncooperativeness without revealing that I couldn’t stand her, which would only raise clouds of suspicion over everything I said.

  Ms. Stone’s only recommendation was that Leon be locked up at the Children’s Center. “I don’t have any illusions about the Children’s Center,” she said, “but we’ve run out of options. You can’t sit down with him and say, ‘You have to behave. There are better ways to deal with your problems than committing crimes.’ It’s not going to work.”

  “Your Honor, I completely agree with Ms. Stone,” I said. “Just warning Leon isn’t going to help.”

  I looked at Leon, a bantamweight boxer who once broke his girlfriend’s nose, and I saw what a punk he really was, thought of his unending protestations of innocence to me, his taking me for a fool. I was fed up with him, past fed up.

  “For the last four years Leon’s been leading his life as a first-class jerk. Somebody offers him a stolen ring—he takes it. Somebody says, ‘You want to go for a ride?’—he knows the car is stolen, but he doesn’t say no. He’s a jerk. We all know the type.”

  Judge McCord was nodding affirmation. All I heard in the courtroom was my own voice. “He goes into Hecht’s, he wants a shirt, he’s not going to pay for it like other people—no—he’ll break the tag off and steal it. He’s a jerk. He’s a wise guy.” Leon was gaping at me as though he had just realized his lawyer was a monster from outer space.