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

by James S. Kunen

  “But what do we do with wise guys?” I continued. “We have a choice with Leon: we can lock him up for two years, but he’ll come out again, and I don’t have to tell the court that he won’t be the same when he comes out as when he went in. Or we can take advantage of the community counseling and training programs which are represented by the people who’ve come to court with us today, and try to make him a productive member of the community.” I had assembled no less than three social workers from three different organizations, each ready to oversee some aspect of Leon’s reconstruction.

  Leon’s father and two brothers were also in the courtroom. “You’re lucky to have a loving family, who care enough about you to come down to court,” Judge McCord said. “Why can’t you be like them?” What the judge didn’t know was that they had to be in court anyway, as witnesses in one of Leon’s brother’s criminal cases.

  Because he’d been presented with “no real alternative,” because Leon had such a concerned family, and because his crimes had been against property, not people, Judge McCord agreed to postpone sentencing while we tried my program for forty-five days; then if it wasn’t working, he’d lock him up.

  When we came back in January, Judge McCord found that Leon had not done anything he was supposed to do. But he had by that time turned eighteen, old enough to be treated as an adult if he were arrested again, and too old to benefit from the Children’s Center, in Judge McCord’s opinion. The judge, declaring that the juvenile justice system had failed in the matter of Leon Lincoln, closed the case.

  Looking back on it, I realized that I had stumbled upon a principle in my “He’s a Jerk” speech: don’t argue for your client, argue for the community. If you take your client’s part, the judge will see you, at best, as an advocate speaking from the biased perspective of one side, or, at worst, as the mouthpiece of a criminal. Far better to be an enlightened citizen helping the judge to do his job. What ends do we have in view when we impose sentence? Deterrence, of the defendant, specifically, and of others, generally, from committing crimes in the future; and retribution, to restore the moral order of society—both achieved through punishment; the incapacitation of a dangerous individual; and his rehabilitation, so that he will not be dangerous anymore. But all of these ends are only means to one transcendent end—the protection of the community.

  If we avoid sending the miscreant to a character-warping school for crime, but, instead, control his time and mold his experience at home, we can best ensure the safety of the community. That is something a judge is for. “Giving him a chance,” trying to “understand him,” or otherwise being soft on crime is something a judge is against. So I decided I would always be against it, too.

  But I figured the real key to the success of the “He’s a Jerk” speech was that I truly believed it. I resolved to work toward the day when I’d be able to sound as though I believed what I was saying when I didn’t; or to believe something at will, so that I could speak from conviction. To attain this skill would be to reach the height of the lawyer’s art.

  §4-06

  One character plays a pivotal role in case after case: the stupid policeman.

  My client Terry White was rousted from his bed at 6:30 A.M. one day in June and arrested on a warrant alleging that he had sold one gram of marijuana on a stairway in Anacostia High School in February to an undercover police officer posing as a student. It was after Thanksgiving when we went to trial.

  Fortunately, the undercover man, Officer Green, shot himself in the foot, as it were. He had written on the arrest warrant that the Terry White in question was five foot seven. My Terry White was a very lanky six foot three. For good measure, he testified that after the sale, he had arranged to have Terry White lured to the principal’s office on some pretext, where he looked at him through a keyhole to make sure he was the person from whom he had bought the drug. He said this occurred on April 16. Terry White, an alert kid, leaned over and whispered to me that he had been locked up in Maryland on April 16.

  “Maybe we should give Officer Green the benefit of the doubt,” I argued. “Maybe he was confused about the height. Maybe he was confused about the date. But we don’t give the benefit of the doubt to the government. The government has to prove beyond a reasonable doubt that Terry White was the five-foot-seven person on the staircase.”

  The judge delivered his verdict in the pyramid style all judges use—least important things first, keep ’em hanging. Judges love your courtroom drama, too.

  “I have no problem with the report of the laboratory chemist. I am convinced that the substance was marijuana.” He went on, “I take note of the discrepancy of the description, which says five foot seven, when Terry White is at least six feet.”

  I’m starting to pray. But I say to myself, “I’m not going to pray about this.” So I don’t pray. But my inclination is to pray. I was desperate to hear the judge say “not guilty,” not for Terry White, but for me. I was thinking, “I’ve got to win this case,” because I had to feel, for the future, that winning was a possibility. If I didn’t win this one, my third, where there were so many things wrong with the government’s case, I was going to start to feel that I was just going through the motions, knowing I wouldn’t win—like the Washington Senators charging out of the dugout, the organist’s crescendo failing to still the mournful song within: “God, here we go again.”

  The judge continued, “I find the government has not discharged its burden of proof beyond a reasonable doubt, and I find the respondent not guilty.

  “Young man,” he said, “this does not mean that I don’t have my suspicions, but I’m allowed to rule only on the evidence before me.”

  As we strode out of the courtroom, Terry turned to me and said, “Me? Sell marijuana?”

  §4-07

  Once a month I was assigned “duty day.”

  Duty day was one of P.D.S.’s more onerous tasks, yet, like all hard work, it could occasionally prove rewarding. Whoever was on duty, having failed to trade his day for some other attorney’s safely distant future day, had to stay by his desk and answer any and all queries from that bizarre collection of souls known as the general public, whether presented by phone, or, worse, in person. Pensioners called about overdue checks. Federal penitents called from places as distant as dreams, impossible places like “Leavenworth, Kansas,” and “La Tuna, Texas,” complaining of miscalculated parole dates and unanswered appeals, devastating mistakes that kept them out of the living world, even their voices but briefly free, to be instantly yanked back behind the walls at the click of my phone. Victims of every sort of foul play—by CIA agents, slumlords, uninsured motorists—called seeking redress. And, because the good name (and public funding) of our agency was at stake, and because that’s the sort of guys we were, no one was turned away without at least the phone number of someone more appropriate to call.

  “I did a stupid thing,” one caller told me. “I phoned in a bomb threat to the Iranian Embassy, and the police called me up, and I admitted it to them. And now I really can’t afford to be convicted, because I have a top secret, highest priority security clearance. I’d lose my job.”

  “Even though you’ve admitted it to the sergeant on the phone,” I told him, “don’t say anything more to anyone, because what you have said might be thrown out as evidence, because, maybe, technically the sergeant didn’t do everything he was supposed to.”

  “He didn’t tell me about my rights or anything,” the man said, definitely perking up at the idea of getting off on a “technicality,” despite being, in all likelihood, someone who would rail against “criminals” getting off on technicalities. There was new hope in his voice.

  It was gratifying for me to have a right-wing hooligan turn in his hour of need to the Public Defender Service. It’s probably similar to the feeling a cop has when a public defender calls for help when his house is burglarized.

  §4-08

  Roberto Lewis’s assigned attorney finally withdrew from the camera-murder
case, and the judge assigned it to P.D.S. Since I had never handled a jury trial, let alone a murder, my boss put Ken Lloyd, who had five years’ experience, on the case with me.

  Lloyd, like most of the attorneys who entered P.D.S. in the mid-seventies, and like me, was a product of the late sixties’ college “generation.” This group tended to enjoy aligning themselves against the state, as defense attorneys do. Outwardly, Lloyd had preserved the trappings of “the Movement”—a beard, longish hair, and laborer’s clothing; and inwardly, he had cultivated the bemused, ironic detachment characteristic of those who know they are going to lose most of their battles.

  Lloyd and I found Roberto in the lockup behind Judge Davis’s courtroom on the day of his arraignment.* When I walked up to the bars Roberto sprang toward me like a puppy in the pound who picks up some scent of possible adoption. I thrust my hand through the bars. Like all of my clients, he did not bend my arm around a bar to the point of breaking it and demand freedom in exchange for letting go, but simply laid his hand limply in mine, like a small dead offering. I shook it and let it drop.

  We explained Roberto’s situation to him, emphasizing that he would remain locked up for several months pending a trial. A marshal came through the door from the courtroom with a big brass key in his hand. The key was so big that it was not just a key: it also meant “key.” It was a symbol, of the marshal’s power and the prisoner’s plight.

  “Lewis,” the marshal said. Lloyd and I stood aside, our backs against the wall. You don’t get between the marshal and his prisoner.

  Roberto was ushered into the courtroom, where he spotted his girlfriend and smiled. Judge Davis, looking almost comically Puritanical with her gray hair pulled back into a lacquered bun, a white bow at her throat accentuating the severity of her black robes, advised Roberto of his rights in her teeny-weeny nasal voice and asked how he pled.

  “Mr. Lewis pleads not guilty to all counts, Your Honor, and requests a jury trial,” Lloyd said.

  Judge Davis daintily blew her nose, glanced at the handkerchief, and put it aside. “Twenty days for motions,” she said. “Status date?”

  It was agreed that we would return in a month to review the status of the case, and that the trial would be in three months. The marshal took Roberto back through the door.

  Several weeks passed before we could arrange a discovery conference with the prosecutor. Discovery conferences were always held in the prosecutor’s office, at the prosecutor’s convenience. Though required by law to turn over certain information, the prosecutors always acted as though they were doing the defense a favor by doing so, and many of them treated defense attorneys as a king might treat bothersome supplicants, who, likely as not, are going to track cow manure on the carpets. I spent many an hour sitting in a brown vinyl shovel-shaped seat amid the dusty plastic philodendrons in the reception area of the U.S. attorney’s office, like a stranded traveler waiting for a plane that’s still on the ground in Chicago, wondering why it was that prosecutors never came to see us for the discovery conferences. The reason, I concluded, was that all the systemic momentum was on their side. A charge went in one side of the machine, and the ponderous gears would clank, and the pulleys groan, and the conveyor belts clatter until a conviction came out the other end. That was the normal operation of the machine, so the prosecutors wanted to do nothing but let it run. We wanted an abnormal result, so we had to do things: stand in the way, distract the operators, grab anything we could find and thrust it into the cogs.

  Finally a certain astrological moment obtained, and I found myself with Lloyd in the office of Assistant U.S. Attorney Bruce Penley.

  A skinny bald man with narrow stooped shoulders and pallid, sunken cheeks, Penley had the look of an undertaker. His face seemed painfully pinched, his small mouth squeezed below his beaklike nose, his narrow eyes huddled above it.

  Lloyd introduced me to Penley. I extended my hand and found it viciously crushed in his pincerlike grip. What was he trying to prove? Before he let go of my hand I had already decided that Penley enjoyed locking people up—and I don’t mean seeing that justice triumphed. I mean justice aside, slam, clank, rot in there, sucker!

  Penley sat behind his desk flipping through his Lewis file in a bored but careful manner, holding it away from us in order that we not read it upside down, something all defense attorneys get good at.

  He began by noting that the dead man (“decedent,” to us) had been a twenty-four-year-old street vendor, the first and last thing ever said about his life by anybody involved in the case. He was a stick figure, who did not engage our sympathies as did, say, the occasional Georgetown University decedent. It was only his death that interested us.

  That death, the medical examiner reported, had been occasioned by massive bleeding resulting from the penetration of the aorta by a .38-caliber slug.

  The weapon had not been recovered.

  There were no eyewitnesses to the shooting itself, but the state did have “one or more” witnesses who could say that Roberto had been sitting on a porch when the victim walked by carrying a camera. Roberto said to a friend, “Do you want that camera?” and was then seen following the victim. He apparently forced the victim into a nearby wooded area, where the body was found. Witnesses said that he returned ten minutes later with the camera, a watch and seven dollars. He gave the camera to the friend, and the police now had it. Another witness, who gave Roberto a ride later in the day, said that Roberto showed him a handgun.

  Two police detectives, starting out with no leads at all, had questioned dozens of people in the vicinity of the woods where the body was found. Somebody told them the nickname of a young man who had said that his cousin had robbed someone in that area. The detectives had only the nickname of the young man, and no name for the cousin; but they found the young man, and he named his cousin—Roberto Lewis. The police showed a photo of Roberto around the neighborhood until someone told them where to find him. They arrested him three days after the shooting. Except for its speed, it had been a fairly typical investigation: a boast, a snitch, and a lot of shoe leather.

  Following his arrest, Roberto signed two written statements. Penley gave us copies. The first was a rambling, internally inconsistent alibi, which was at best useless, since Roberto said he was alone, drinking a quart of Old English malt liquor outside a 7-Eleven at the crucial time. (An alibi is no good without alibi witnesses.) The second was a confession, begun at four A.M., the traditional hour for confessions, whether to oneself or to officers of the law. In it, Roberto said that he had pulled a gun on the man only to scare him, but had himself become scared when the man came at him with a karate kick, and had fired, lest the man wrest the gun from him and kill him. Unfortunately for the equities of the case, Roberto’s terror immediately subsided, and, he said, he went through the dead man’s pockets and removed his wallet and watch, not forgetting the camera.

  This added up to first-degree murder,* armed robbery, and carrying a pistol without a license, the first charge carrying a mandatory minimum sentence of twenty years to life.

  Penley sat there glinting like a gold tooth. His wire glasses shone, as did his college ring, turned inward on his bony finger, as did the steel expansion band of his watch, which he wore on the pulse side of his left wrist—he checked it frequently as he talked to us. Even the clip on the black Skilcraft-U.S. Government ballpoint shone like polished sterling. Oh, to beat this guy!

  Walking back across the street with Lloyd, I told him that I loved this case because it was impossible, yet we would win it! I dreamed of winning the unwinnable case, because then, and only then, could I be sure that it was my work, rather than the evidence, that won it.

  He agreed that was what defense attorneys strive for, and recalled how a colleague, one time, had spent fifteen minutes holding up the defendant’s coal-black raincoat—the perpetrator had worn black—telling the jury it was blue.

  “And he won?”

  “No.”

  §4-09

 
; I picked up cases on Christmas Day. When I had gone to bed on Christmas Eve, it was raining torrentially. When I got up Christmas morning, the sky was a brilliant blue; the sun shone horizontally, tinting everything gold. The streets were wet, clean, and empty. It was a beautiful morning, and I felt like a beautiful person, going to the aid of (alleged) thieves on this of all days. I hoped I might get some family violence—Christmas hysteria. I wasn’t disappointed.

  A thirty-five-year-old mechanic in a neatly pressed red flannel shirt sat in the lockup, pensively wringing his callused hands. He had never been arrested in all his life, until he shot and wounded his brother on Christmas Eve. I didn’t ask why he’d done it, but I had my ideas. Ugly necktie? Turkey overdone again?

  The judge let him out pending trial, on condition that he not live with his brother. “But it’s my house,” he said to me as we walked out of the courtroom. “My brother lives with me. I have to get out of my own house?”

  I could see the injustice in that, and assured him he need stay away only until he got his brother to leave.

  For the moment, he said, his brother was in intensive care in the hospital.

  “Well, then, there’s no problem, is there?” I said. I liked that. The problem had given birth to its own solution. It seemed almost miraculous.

  §4-10

  K-pong-cha, k-pong-cha, k-pong-cha …

  Our bed shook us awake each morning as it bounced with the blows of the pile driver in the back yard. I had watched in helpless horror as a bulldozer murdered my tomato plants, clearing the way for “James Place,” seventy-seven “distinguished residences” where our garden used to grow. The Federalist row house Jan and I rented would soon be walled in on three sides by mammoth condominiums, an innocent little house from the nineteenth century imprisoned in the twentieth. I was powerless to resist the iron will of the speculators, the banks, the Republicans. Such was life in Georgetown.