When the Supreme Court says how things ought to be, that doesn’t necessary make them be that way. By 1960, urban jails throughout the country were filled with people detained pretrial because of their inability to post bail. Aside from being unfair, such detentions are very expensive (thirty-five dollars a day in D.C., in 1981).3 An experiment conducted by the Vera Foundation in New York City in 1960 showed that people released upon their personal promise to return showed up just as regularly as people released on bail. Based on that and other data, Congress in 1966 passed the Bail Reform Act, prescribing release on personal recognizance (promise to return) as the preferred type of pretrial release in federal courts and the courts of the District of Columbia.
Now, over 70 percent of defendants are released without having to post bail, in Washington.4 For defendants released on nonfinancial conditions—the most common conditions imposed being simply to promise to return, stay away from the complainant, and telephone the Pretrial Services Agency* regularly—the appearance rate was 94 percent in 1981; that is, of every one hundred scheduled appearances, only six led to the issuance of a warrant for failure to appear. Over half of these failures to appear turned out to be excusable, because, for instance, the defendant had been hospitalized or incarcerated.5 The best appearance rates are for defendants charged with murder or rape. The worst are for those charged with petit larceny or soliciting for prostitution.6
The Constitution would not seem to permit the use of bail for the purpose of keeping people incarcerated for the protection of the public. Bail has always been used for that purpose, but judges and prosecutors always pretend that risk of nonappearance for trial is the reason for setting high bail. To keep Howard off the street, the government was relying on its traditional improper practice of asking high bail for an indigent person.
The prosecutor handed the judge and me copies of the police report of the incident, as he had to: a defendant cannot be held in custody without a prompt judicial determination that there is probable cause to believe he committed the crime. He augmented the report with his own vivid narrative of Howard shooting his next-door neighbor at point-blank range, then shooting her boyfriend as he heroically lunged for the gun, and shooting him again as he staggered from the first mortal wound, then firing repeatedly at the young woman as she thrashed about on the ground, screaming in terror and pain. Not a pretty picture.
I was horrified. My voice quavered as I argued that Howard should be released on his personal recognizance because he had no record, had lived at one address in D.C. all his life, had all of his family here, and did not have the financial resources to leave town. The judge imposed $3,000 bail, far more than Howard or his mother had.
(The bail could be made in cash or by posting a “surety bond,” that is, paying a professional bondsman 10 percent of the bail amount, which he keeps, in return for his commitment to pay the full amount to the court should the defendant fail to appear, an eventuality that the bondsman is expected to try to prevent. Bondsmen prefer to do business with repeat offenders whom they know. Howard looked like a bad risk, and no bondsman would write a bond for him.)
At the request of the prosecutor, the judge ordered a “forensic screening” to determine whether Howard was competent to stand trial. A defendant is incompetent if he is unable to understand the proceedings against him or to assist in his own defense. The defendant’s competency depends on his mental condition at the time of the court proceedings; his sanity depends on his mental condition at the time of the offense.
Howard leaned over and whispered urgently, “What does he mean, in detail, that I need a mental screening? I want to hear that in more detail.”
“Howard, look,” I said, “it was detailed enough for the judge. He ordered it. Don’t say anything.” He was getting agitated.
“Okay,” he said as the marshals led him away, “but from now on, whenever anybody says anything like that, I want to hear it in detail.”
Four days later we were back in court for the report on Howard’s forensic screening. The report simply stated the conclusion that Howard was competent.
Mr. Z asked Judge Sweeney to commit Howard for further mental observation to review his competency and to get an opinion on his sanity.
I objected, arguing that it’s up to the defendant to raise the defense of insanity, which we had not yet done.
The judge ordered a thirty-day mental observation. “I can see what’s before me,” he said. “I can see there’s something not quite right. Maybe it takes one to know one.” Judge Sweeney was aware that with age and infirmity he had grown somewhat idiosyncratic in his own behavior. “I’m losing my mind,” he once said in the middle of one of my juvenile trials.
I felt I was losing control of the case. Howard would be in the hands of psychiatrists who, though nominally working as neutral advisers to the court, were notoriously prosecutorial in outlook. My dismay was nothing compared to Howard’s, however. He got very worked up, not bothering to whisper as he complained that it was Sheila, the female shootee, who was crazy, not he. Of course, by his loud protestations he was exhibiting the very essence of craziness—a poor sense of decorum.
“Maybe the defendant would like to address the court?” Judge Sweeney asked, his interest piqued.
I, taken aback, was just starting to say, “I’ve advised him not to,” when Howard began shouting, “Why don’t you ask Sheila? Sheila will tell you the truth!”
“Who’s Sheila?” Judge Sweeney asked.
As Howard started answering, I grabbed the microphone and said loudly, “Your Honor, I really must insist that my client not be interrogated any further.” I was trying to muck up the tape recording* so that Howard’s admissions would not be in the transcript.
“All right, you’re right,” Judge Sweeney said, not hiding his disappointment.
We were back in court three days later for Howard’s preliminary hearing. I went back and found Howard, still in his raincoat, in the lockup. I explained to him that the preliminary hearing would last only two or three minutes; that its only purpose was to enable the judge to decide, after listening to a police officer’s testimony, whether there was “probable cause” to believe that he committed the crimes with which he was charged, or whether the complaint should be dismissed.
“The police can’t just go arrest somebody and put him on trial,” I said. “A judge has to review what the police did. But, as a matter of fact, ninety-five times out of a hundred, the judge will decide that there’s enough evidence to have a trial.† Since he’s going to decide that anyway, the real point of the hearing, as far as we’re concerned, is that it gives us a chance to hear what the cops have to say, so we’re a little bit less in the dark. So you’ll notice that I don’t go out there and be Perry Mason and say, ‘But you don’t know what you’re talking about, do you?’ and ‘Aren’t you full of shit?’ and try to knock holes in the cop’s story, because the time for that is later, when it counts, at the trial. Right now I just want to lay back and let it flow, let him talk and talk and talk. And none of what happens today comes before the jury at trial. At trial we start fresh.”
“And I won’t say anything, because that was a mistake the last time, when I started to talk,” Howard said.
“That’s right,” I said, “and you won’t get excited, because you know that nothing that’s said can hurt you. You’ll just sit there calmly, because you know none of it matters.”
And he did sit there, quiet and calm.
The same couldn’t be said for Judge Sweeney. He wanted to cut off my cross-examination because the cop had testified that the woman victim had said she was shot by “Howard Robbins,” and that was probable cause right there. I was trying to discover (and “lock in” the arresting officer’s testimony about) the circumstances surrounding Howard’s arrest: Was he near the crime scene? Did he seem to be trying to flee? Did he match a description, or have incriminating evidence on him? From the prosecutor’s point of view, these questions were all impermiss
ible attempts at discovery, irrelevant to the issue of probable cause. A portion of the transcript of my cross-examination shows that, while the prosecutor is supposed to be my adversary, the fiercest competition often comes from the police officer and the nominally neutral judge:
BY MR. KUNEN:
Q. In which direction did the victim say the perpetrator was heading?
A. Headed east on V Street.
THE COURT: Sustained. [There had been no objection.]
BY MR. KUNEN:
Q. Is that V as in Very?
A. V as in Victor.
Q. Now, when you first saw Mr. Robbins, where were you, Officer?
A. In the scout car.
Q. Where was the scout car?
A. Middle of the street.
Q. And where, on what street was the scout car?
MR. FLORES: Objection.
THE COURT: Sustained.
BY MR. KUNEN:
Q. At what distance was Mr. Robbins from you when you first saw Mr. Robbins?
THE COURT: Sustained.
BY MR. KUNEN:
Q. Where was Mr. Robbins when you first saw him, Officer?
MR. FLORES: Objection, Your Honor.
THE COURT: Sustained.
BY MR. KUNEN:
Q. How would you describe the pace at which he was walking, making haste or walking at a normal pace?
MR. FLORES: Objection.
THE COURT: Sustained.
BY MR. KUNEN:
Q. Did the complainant give you any physical description of the person who shot her?
THE COURT: Sustained.
MR. KUNEN: I didn’t hear any objection, Your Honor. It would seem to me, if my client is going to be accused of a crime and if the Court is going to find that there is probable cause—
THE COURT: I am going to find probable cause, unless you’re going to attack the credibility of the victim. Now, if you’re prepared to do that, let’s go.
MR. KUNEN: I am doing that through my questioning. That’s exactly what I’m doing.
THE COURT: All right.
MR. KUNEN:
Q. Was Mr. Robbins carrying anything when you stopped him?
MR. FLORES: Your Honor, at this point, I would like to state the basis of my objection.
THE COURT: What difference does it make? Sustained. Sustained.
MR. KUNEN: Well, Your Honor, if I am not going to be allowed to ask any more questions, then I won’t ask any more questions.
THE COURT: The victim said, “Howard Robbins shot me.” Are you going to break that down?’
MR. KUNEN: Not if I’m not allowed to.
THE COURT: Go ahead and ask the question, and that better be relevant when you get there, hear, and you better make an argument when you’re through.
MR. KUNEN: I understand that.
THE COURT: All right.
The odd thing about Judge Sweeney was that when he was through yelling at you, he almost always allowed you to conduct your examination, whether it was proper or not. The only limit to your questioning was how much you could take of being yelled at by an old man sitting up above you in the front of the room while one hundred people you couldn’t see, sitting behind you, looked on. For me, it was necessary to enlist the support of those one hundred, to get them on my side, and feel them there. It’s a talent to be able to do that. It would probably be an even greater talent not to need to.
When the dust settled, we had learned that Sheila, though severely wounded, seemed to the police officer to be clear-headed when she said, “Howard Robbins shot us,” and that the deceased man said, “Howard did it,” just before he died.
(Students of the law will recognize the latter pronouncement as a classic “dying declaration,” which, as an exception to the hearsay rule, is admissible at trial as the equivalent of testimony, on the ancient theory that no one would lie when he was about to meet his Maker.)
“See, we didn’t know before that they were going to say that the man also named you,” I told Howard afterward. “Now we’re a little less in the dark.”
“Yeah, I didn’t know they were going to say that,” Howard agreed, then passed quickly to his favorite topic: the imminent dismissal of the case.
He patiently explained the whole situation to me again. Sheila was angry at him because he had fathered a child, now thirteen, by her sister, and not by her. (The sister had since died of a heroin overdose.) And she was jealous because he had a new girlfriend, named Lois.
Now Sheila was putting a lie on him, to try to get him locked up. The cop at the hearing said that Sheila said she knew Howard from the neighborhood, and had gone to the same schools. Howard shook his head and laughed. This was preposterous! How could they have gone to the same schools, when he was six years older than she! This proved that 1) Sheila was trying to get Howard in trouble, and 2) Sheila needed psychiatric help, since “only a crazy person would tell a lie that could be so easily proved wrong.”
Howard cocked his head expectantly, waiting for me to agree with him.
“I understand what you’re saying,” I said.
He speculated that what probably really happened on Sheila’s birthday was that Sheila and her boyfriend had an argument and ended up shooting each other. Sheila, in her pain and anguish, called out Howard’s name, out of love for him. Later, realizing the trouble she was in, she decided to frame Howard and thus protect herself.
He seemed pleased by the way his theory accounted for everything.
Howard maintained that I could easily verify everything he’d said, and get his case dismissed, merely by getting hold of his past complaints of harassment by Sheila. He said he had gone to the Citizen Complaint Board at the prosecutor’s office five times.
I promised to subpoena their records.
He added that he had called the police about Sheila at least forty times.
“Did you call nine-one-one?” I asked. “They record those calls. Maybe I can get the tapes.”
“No, I dialed the full phone number of the precinct,” Howard said. “I think nine-one-one should be saved for real emergencies.”
§4-14
Roberto Lewis, facing twenty years for the camera-robbery murder, wouldn’t listen to my co-counsel Lloyd and me. As far as he was concerned, we were part of the conspiracy to lock him up.
“I know this isn’t what you want to hear from your defense attorney,” I told him during one of our many conversations at the jail. “You want to hear me say, ‘Here’s how we’re going to beat this thing.’ I wish I could say that, but I wouldn’t be doing you a favor, because then we’d go to trial and lose, and you’d do twenty years. My job is to defend you, to protect you, to keep the damage as light as possible. And the way to do that is to plead guilty, because we can’t beat this case.”
That wasn’t what he wanted to hear from his defense attorneys. We offered him no alternative, no way out. We were there to tell him that we were not getting him out—no one was getting him out—he should plead guilty to second-degree murder and maybe he’d be sentenced under the Federal Youth Corrections Act, which allowed indeterminate sentences for offenders under twenty-two years of age; then maybe he’d get out in eight or ten years. Otherwise, he’d go down on first-degree murder and get a mandatory twenty-to-life. He’d be thirty-seven when he got out, at the earliest.
(I wondered about the rationale for the mandatory minimum of twenty years. Wouldn’t ten be time enough to take a look at him for possible parole? Ten years, like twenty years, was too horrible to imagine. Ten years, like twenty years, was a lifetime to a seventeen-year-old. The only logic I could see for the twenty years was that his testosterone level would be that much lower when he came out.
(As men age, their violent criminal activity rapidly diminishes. In 1980 in the District of Columbia, for example, among males aged fifteen to nineteen, there were 921 arrests for violent crimes; among twenty-five- to twenty-nine-year olds, 593; among thirty-five- to thirty-nine-year-olds, 182. The arrest rate for violent crimes
by women, while uniformly much lower, declines more gradually with age. Among females aged fifteen to nineteen, there were 77 arrests for violent crimes in D.C. in 1980; among twenty-five- to twenty-nine-year-olds, 67; among thirty-five- to thirty-nine-year-olds, 31.)1
Roberto said he would not plead because he was not guilty. He denied knowing anything about the shooting. He said his confession was not what he told the police, but what the police told him. He just signed what they put in front of him, after they had choked him and threatened him, he said.
We moved to suppress the confession, of course, arguing, among other things, that the police did not effectively communicate Roberto’s “Miranda rights” to him; that Roberto did not knowingly, intelligently, and voluntarily waive those rights; and that his statements had been coerced.
In Miranda v. Arizona, in 1966, the Supreme Court held that before questioning a suspect who is in custody or otherwise deprived of his freedom of action, law enforcement officers must warn him that he has a right to remain silent; that any statement he makes may be used against him in court; that he has the right to consult with a lawyer before answering questions, and to have the lawyer with him during the questioning; that he will be provided with a lawyer if he cannot afford one; and that he may assert any of these rights at any time, even if he has begun answering questions. The prosecutor has the burden of proving that the defendant was expressly informed of these rights, and that he made a knowing and voluntary waiver of them, before any statements made in response to custodial interrogation can be introduced in evidence.
I didn’t doubt that Roberto’s statements were coerced. It was much easier to imagine Roberto being threatened and frightened and roughed up than being overcome by a guilty conscience. If he had a conscience, he wouldn’t have shot the guy in the first place. But I was also sure that we couldn’t establish a Miranda violation, and that the confession would be admitted into evidence.
How Can You Defend Those People? : The Making of a Criminal Lawyer Page 17
