Daily I made my escape to Court World, where reality was malleable, and I could at least try to bend it to my will, make two and two equal five, on a good day.
Deception is not deceit. Lawyers and magicians practice deception. Dishonest people practice deceit.
I utilized two classic forms of deception in Norman Trumpet’s trial—saying something that wasn’t true, and not saying something that was. They were both perfectly ethical. The learned hand is quicker than the eye.
My client Norman, and his co-respondent, Steve Thomas, were charged with receiving stolen property. The police happened upon Norman and Steve in an alley transferring a stereo and TV from a junked car into the back seat of a white Pontiac.
The case hinged on whether our clients knew (or should have known) that the property was stolen. It was in this connection that I learned the Lesson of the Keys, which, mnemonically enough, happens to be the key lesson there is to learn about the lawyer’s art: forget what you know, argue the evidence.
When Norman borrowed his cousin’s Pontiac, he had told us, he was given only the ignition key, not the trunk key. But when all the evidence was in, no mention had been made of that fact. At Steve Thomas’s lawyer’s suggestion, we made what was to me, at that time, a novel and shocking argument: obviously Steve and Norman had no idea that the property was stolen, else why would they have been loading it into the Pontiac’s back seat, instead of concealing it in the trunk?
The judge let that alone when he delivered the verdict. He convicted them of receiving stolen property. He decided to lock Steve Thomas up pending sentencing because Steve had another case awaiting trial and so seemed to pose a threat of running or raising havoc. He then turned his attention to my client. I knew that Norman’s D.C. record was just an expired probation for a robbery four years before, but that he was currently on probation in Maryland for carrying a gun. The judge asked, “And what is Mr. Trumpet’s record?” I stood quietly for a long two seconds. “Just probation in 1976,” the prosecutor said. I thought about correcting him. Then I thought I’d stay out of it.
“Okay, he can go,” the judge said.
In the hallway, Norman, wide-eyed, asked, “How come you didn’t tell him about my probation?”
“I figured he didn’t ask me,” I said.
“And if he did ask you, you would have had to tell him the truth?”
“That’s right,” I said.
Norman seemed very impressed, as much with my speculative honesty as with my actual silence—with my integrity, I guess.
Back in the office, Ken Lloyd said my silence was “a close call,” but he’d have done the same thing. His officemate said it wasn’t even close: “It’s not your job to get up and say bad things about your client. How would you like it if your lawyer did that?”
I checked the Code of Professional Responsibility and learned that I could not tell the judge my client’s record if I knew of it from my client’s having told me, because that would be a breach of confidentiality. On the other hand, if the judge asked me directly and I knew of the record from some independent source—as I always would, from looking it up—I would have to answer truthfully.
Norman Trumpet failed to appear for his sentencing.
§4-11
I’d managed to get free from court for a couple of hours and was looking forward to clearing my desk of the dozen files strewn about it like wrecked ships on a reef. But first, I stopped in to commiserate with the lawyer across the hall. The woman he had hired to take care of his disabled mother had embezzled his mother’s funds. (I understood. I was representing a nurse who had done exactly the same thing to her employer, a young woman afflicted with multiple sclerosis.) At my colleague’s suggestion, I resisted the urge to do paperwork and, instead, went over to court to watch a little of “the Butcher-Knife Trial.”
The Butcher-Knife Trial was acclaimed throughout the courthouse as “a great case.” Mystery, intrigue, passion, and colorful characters were important, but the more gory a case was, the more likely it was to be considered “a great case.” The Butcher-Knife Trial was a particularly great case because of the butcher knife: a woman walking down the street with a twelve-inch knife sticking in her neck and out her cheek! I found a seat in the packed courtroom beside one of the courthouse regulars, an aged derelict in a filthy green herringbone tweed jacket. He, like a number of other street people, sought shelter and diversion at trials every day, but today his unshaven face bore an especially satisfied look—he’d found a good one.
A handsome young police officer was testifying that he came upon this skewered woman as she stood in the street, naked except for a bloody blanket clutched around her, hailing a taxi. He stopped his scout car and helped her into a cab, and told the cab driver that he would lead him to the hospital. “As we started off, I heard a call on my radio for an ‘officer-in-trouble’ at Euclid Street. So I turned off in that direction. I parked outside and ran upstairs, and along the hall and on the apartment door I noticed a trail of blood. When I got inside, it turned out the police officer was not in trouble, he just needed assistance. He’d radioed for an ambulance. On the bed there was a man, naked from the waist up. He was in bad shape. He’d been stabbed repeatedly and his intestines were hanging out. He was in a kneeling position on the floor, bent forward over the bed. His hands and feet were tied … It turned out that this was the apartment that the woman with the knife in her throat had come from.” SNAP! The faint tippety-tap of the court reporter’s stenotype machine, a comforting, barely audible sound like rain on a roof, stopped abruptly as her tape recorder popped open at the end of its reel.
“Just a minute, please,” the court reporter said, and the lawyer and witness froze, unwilling to move or speak until she was ready. The first words spoken by a lawyer in every case are, “For the record, my name is …” The reporter embodies the ritual of the law and lends special importance to words uttered in the courtroom: everything is written down, every word. Language flows through the reporter’s fingers in shorthand form at up to 225 words per minute. It takes 2,400 classroom hours plus a year of on-the-job training, three years altogether, for stenographers to get certified as court reporters, and they are paid accordingly. In addition to their salaries, they get two to three dollars per page when a lawyer orders a transcript, so they’re making more money than most public defenders or prosecutors.
“Okay,” the reporter said.
The prosecutor, who’d been standing stock still and silent, was reanimated, and the witness continued his story. It seemed that the woman had simply been in the wrong place at the wrong time when some dissatisfied parties to a drug deal came to register their complaint with the man on the bed, who paid with his life. The woman, left for dead, survived. “I went back downstairs after about five or ten minutes,” the cop continued, “and the cab with the woman in it was parked there. Because, of course, the cab driver thought I was leading him to the hospital, so he followed me there, and then he got blocked in by the other scout cars that arrived after me.”
The officer related this without any twinge of embarrassment, apparently unaware that there was anything the least bit curious about, or any fault to be found with, his actions. He couldn’t even stop for a second, or even not stop, just shout to the cabby, “Go on without me!” No, the instant he hears “officer-in-trouble,” nothing else exists for him except the compulsion to fly to that scene: “That could be me someday, that’s a brother officer.” The woman with the knife through her throat can wait. She he’ll never be.
Perhaps it is not so unusual that the police do so much more for one of their own than for an ordinary citizen. I speculated to Rhonda Harrell, a young working-class woman who worked as an aide to us at court, that maybe the cops figure everybody treats them like shit, so they might as well watch out for each other, and treat everyone else like shit.
“They just think they have a right to treat people like shit, so they do,” she said.
As I sat watching the Butche
r-Knife Trial, I heard distant shouting somewhere in the courthouse, and some sort of reverberations coming through the walls, like bass notes. I went out into the hall and found two pools of blood and some smaller spatters, bright red, and a swabbed-up track turning maroon, and a crumpled piece of gauze bandage soaking there. Had someone been knifed? Or smacked on the head by a marshal’s lead smacker? There was no one around. Just the blood. I find blood nauseating. I think it’s the stickiness of it.
I walked down the block to Antonio’s Cuban-Italian Carry-out to get some lunch, and there, along the curb, was a six-foot swath of bloody slush, fresh enough so that it had not been washed away, but not so fresh that it was undiluted—mushed-up bloody slush. A lot of it. Noontime. Sun shining. No one taking notice. Is there a meat-packing plant near here? A butcher? I looked around, never having noticed one before. No. Just blood in the streets. I went on about my business.
§4-12
We had a lot of snow that winter.
A two-foot blanket of water in pure white crystalline form descending silently from the sky is one of those phenomena which never lose their quality of bizarreness, despite being entirely natural, or because they are entirely natural. Washington when covered with snow assumes an especially unreal quality. This city under any circumstances has an air of unreality, having been laid out according to plan, and being marked by that overwhelming arbitrariness which can be achieved only through planning.
Let’s have a two-mile-long lawn here. We’ll put the Capitol dome at one end and the Washington Monument in the middle.
One can only stand in awe of these fantastic objets, the male and female forces captured and celebrated, totems of the vital power of the nation.
Then at the other end of the Mall we’ll put the Lincoln Memorial. And let’s dig a 2,292-foot ditch in the lawn and fill it with water.
I cross-country skiied one night a mile from my house along the river’s edge up to the Lincoln Memorial. Approached from the rear, or river, side, its back to the South, the Memorial is unadorned by the representational statue of Lincoln; it is just a block surrounded by pillars, like the similarly proportioned, but only seven-foot-long, marble block that is FDR’s memorial—abstract, more than can be said. It looked that night as though it were made from the snow itself, its floodlit stone having the appearance of a translucent ice sculpture illuminated from within. Surrounding it were tractors, row on row, parked there by protesting farmers who had paraded into town on them before the snow fell. Now the odd insectlike vehicles sat half-buried in the drifting snow, blue-white under the moon, everything still and silent except the American Farm Movement pennants on their antennae, snapping stiffly in the wind. It was a scene entirely unlike any that had existed before or ever would exist again. All I could do was look.
§4-13
Howard Robbins had himself completely under control as I spoke to him in the lockup before his presentment.* He was a boyish-looking man in his late twenties. The only indications that he was a homicidal maniac were his raincoat and his eyes, and the fact that he was accused of committing a maniacal homicide. The government said he had shot the girl next door and her boyfriend on the girl’s birthday. Howard had walked up to her as she stood in front of her house with her beau, shot each of them a couple of times, and then run off to buy some groceries for his mother. The girl survived. Her boyfriend didn’t.
This was all very deep water for me, who had yet to try so much as a petit larceny before a jury. In fact, I assumed that my assignment to the case was at least a mistake and possibly illegal—weren’t you required to have some experience before handling a homicide by yourself?*—but I wasn’t letting on, and Howard wasn’t letting on. We were two very controlled young men.
Howard’s raincoat was stained right about where you’d expect drool to hit, and he was wearing it buttoned all the way up to his neck, despite the fetid heat of the lockup. As I explained that I was his lawyer, and that everything he said to me was a secret, and so on, and so forth, he listened attentively, his eyes fixed on mine. He was looking at my eyes, not into them, and I was looking at his. His brown eyes were almost completely surrounded by white, they were open so wide. They looked as if they were straining to contain some enormous pressure inside his skull which was on the verge of blowing them out like two gelatinous cannonballs.
He heard me out patiently, then informed me that he was sure to be released, as his arrest was obviously a mistake, which would be quickly cleared up. All he knew was that he had gone to the grocery store to buy some pickles for his mother, when some policemen came up and asked him if he was Howard Robbins. He said yes, and they arrested him.
“Did they search you?”
“Yes, they searched me.”
“Did they find anything?”
“Just the pickles.”
“In case the judge does decide to hold you,” I said, “where would you rather go, the jail or St. Elizabeths [mental hospital]?”
“That’s like asking me which color bars I want to stand behind,” he said. He declined to choose.
I found Howard’s mother and his older sister in the witness room adjacent to the courtroom. His sister sat quietly drunk. His mother, a stout, solid-looking woman of about sixty, with a handsome, intelligent face, was on the verge of crying, but did not cry. Everything she said to me she said apologetically, as though her troubles did not quite merit the attention of a man in a pinstriped suit.
She’d known something like this would happen, she said. Howard had been sick for a long time. He had been violent before; he’d roughed her up. He had been taken to mental hospitals three times, but the doctors had always let him out. “But,” she said, chiding herself with a shake of the head, “that’s all in the past.”
(Under D.C. law,1 a person brought against his will to a mental hospital cannot be detained for more than forty-eight hours unless the hospital administrator within that time petitions the court for an order authorizing continued hospitalization for emergency observation and diagnosis, which itself can last only one week unless civil commitment proceedings are begun. To commit a person, a family member, guardian, law officer, or doctor must petition the Commission on Mental Health. The commission must promptly hold a hearing, at which the person is entitled to appear, with appointed counsel, to present and cross-examine witnesses. If the commission finds that the person is mentally ill and a danger to himself or others, it reports that finding to the superior court, which holds a hearing or, upon the demand of the person, conducts a jury trial. If that proceeding results in the determination that the person is ill and dangerous, he may be committed. By design, in order to protect the individual’s rights, the process is complex and cumbersome, and Mrs. Robbins had not been able to get Howard through it.
(In other countries, the Soviet Union for example, it is much simpler to commit people. When it is simpler to commit people, many more people are committed. By committing fewer people, we no doubt marginally increase the number of offenses committed by the mentally ill. But we choose to pay that price because we traditionally place a high value on not locking people up unless they have committed a crime.)
My colleague Ken Lloyd, who had happened by, took me aside. “Here’s something you’re going to have to live with for the rest of your life,” he said, and told me that because Howard wanted to get out, and he was my client, and I was his lawyer, it was my duty to try to persuade his mother to accept custody of Howard, no matter how dangerous he was, so that I could convince the judge to release him.
I asked Howard’s mother if she would be willing to take him home. She said she feared he would kill her if she took him home, but if she didn’t take him home, he’d get out sometime and kill her for sure, for leaving him in jail. So, she said, she’d take him.
Augusto Flores, a big-gun prosecutor, dressed in all three pieces of a charcoal pinstriped suit, wheeled into the courtroom, having put aside his administrative duties especially to handle this one case. I recognized him as the
driver of the shiny black Datsun 240-Z with which I had had annoying encounters from time to time in the courthouse parking lot. Two-forty Z’s, like Mazda RX-7’s and Corvettes, are inexcusable. The owner has spent a fortune on a 130-mile-per-hour car, which he will either never drive over seventy, in which case he is guilty of the most extravagant Walter Mitty-ism; or habitually drive at speeds far in excess of the legal limit, in which case he is a peril to my life and yours, as well as a dangerous hypocrite if he happens to be a law enforcement professional. The car itself lacks all subtlety, hitting you over the head with its virtually anatomical phallicism. It is to cars what gold ingots on a chain are to jewelry. And all the heartbreakingly beautiful Dannon-bodied babes on M Street go for it.
Of course, the clerk called the case the moment Mr. Z cruised into the room. He stood at the prosecution table, and I at the defense, side by side, casually eyeing each other like two motorheads at a light. Hrum-ba-dum-ba-dum-ba-dum-ba … Listen to that baby hum. The judge signaled, “Yes?” Boom! Mr. Z floored it: “The government is requesting twenty-five thousand dollars bail, Your Honor.”
Why not make it twenty-five million?
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted,” the Eighth Amendment provides.
The Supreme Court has confirmed that the sole purpose of bail is to ensure that the defendant will appear for trial; that the setting of reasonable bail is an absolute right in all cases involving offenses not punishable by death;* that what is reasonable is whatever amount is necessary to secure the appearance of the particular defendant, taking into consideration his circumstances, including his financial ability; and that bail set at a figure higher than an amount reasonably calculated to secure a defendant’s appearance is “excessive,” in violation of the Eighth Amendment. Emphasizing the “traditional right to freedom before conviction,” the Court has noted, “Unless this right to bail before trial is preserved, the presumption of innocence … would lose its meaning.”2
How Can You Defend Those People? : The Making of a Criminal Lawyer Page 16
