Police love the Miranda decision. They speed-read the suspect his rights and then tell him to fill in and sign a printed waiver form. He’s frightened; he doesn’t understand what was read to him; he’s afraid he’ll look guilty if he doesn’t sign; he signs, and school’s out. The signed waiver is almost impossible for the defense to overcome.
Printed at the top of each and every page of Roberto’s written statements to the police was the following:
WAIVER OF RIGHTS AND STATEMENT
YOU ARE UNDER ARREST. BEFORE WE ASK YOU ANY QUESTIONS YOU MUST UNDERSTAND WHAT YOUR RIGHTS ARE.
YOU HAVE THE RIGHT TO REMAIN SILENT. YOU ARE NOT REQUIRED TO SAY ANYTHING TO US AT ANY TIME OR TO ANSWER ANY QUESTIONS. ANYTHING YOU SAY CAN BE USED AGAINST YOU IN COURT.
YOU HAVE THE RIGHT TO TALK TO A LAWYER FOR ADVICE BEFORE WE QUESTION YOU AND TO HAVE HIM WITH YOU DURING QUESTIONING.
IF YOU CANNOT AFFORD A LAWYER AND WANT ONE, A LAWYER WILL BE PROVIDED FOR YOU.
IF YOU WANT TO ANSWER QUESTIONS NOW WITHOUT A LAWYER PRESENT YOU WILL STILL HAVE THE RIGHT TO STOP ANSWERING AT ANY TIME. YOU ALSO HAVE THE RIGHT TO STOP ANSWERING AT ANY TIME UNTIL YOU TALK TO A LAWYER.
DO YOU UNDERSTAND THESE RIGHTS?______
DO YOU WISH TO ANSWER ANY QUESTIONS?______
ARE YOU WILLING TO ANSWER QUESTIONS WITHOUT HAVING AN ATTORNEY PRESENT?______
The blanks were filled in, in Roberto’s handwriting, YES, YES, YES. And at the bottom of each page:
I HAVE READ THIS STATEMENT GIVEN BY ME OR HAVE HAD IT READ TO ME. I FULLY UNDERSTAND IT AND CERTIFY THAT IT IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND RECOLLECTION.
_____________________________
SIGNATURE OF PERSON GIVING STATEMENT
with Roberto’s signature.
In any event, as I explained to Roberto, with the witnesses the government had, they didn’t even need his confession to convict him.
Our only alternative to a guilty plea was an insanity defense.
Unfortunately, my co-counsel Lloyd said, Roberto’s was not a good case for the insanity defense. It was the classic case of a robbery gone bad: the victim “bucked,” and Roberto shot him—simple as that.
“I still say it’s crazy to shoot a guy for a camera,” I said, “and if I have to, I’ll convince twelve people of that.”
I made an appointment for Roberto with a psychiatrist. “You’ve got to get the shrink up for it,” Lloyd said, “get him excited and interested.” So I told the doctor about Roberto’s “inappropriate smiling”; his two suicide attempts at the Children’s Center (the records there said they were “manipulative,” not real); his new-found interest, since his latest incarceration, in the Muslim religion (religiousness always raises a suspicion of insanity); and his claimed history of seizures—great potential there: the lawyer for a white cop who shot a black child dead convinced a New York jury that his client was not responsible for the act because he was suffering a one-time-only attack of an obscure form of epilepsy.
When the psychiatrist called me up to report on his interview with Roberto, he was excited. “This is the first bona fide instance of Ganser’s syndrome I’ve ever encountered!” he said. Ganser’s syndrome, he explained, is the name not of a condition but of a cluster of symptoms—the giving of “approximate answers” being its prime characteristic. For example, when the shrink pointed to his necktie and asked what it was, Roberto said, “A shirt.” Asked where he was, he said, “A warehouse,” not a jail. He identified a newspaper as “trash.”
Ganser’s syndrome aside, Roberto also denied knowing his home address or his mother’s name, and said he had seven brothers and sisters, when, in fact, he was the eighth of thirteen children. He insisted that he was not charged with murder, but with unauthorized use of a vehicle, explaining, “I stole a car because I wanted to commit suicide. I crashed it into a tree because he told me to do it.” Roberto would not say who “he” was. When the shrink asked Roberto why “he” told him to crash the car, he said, “I never asked.” He added, “Him and his boys come through and are making a parade, and I can’t see it. When I’m asleep, he’ll be squeezing my brain and I’ll be trying to wake up.”
The shrink concluded, “Without any doubt, Mr. Lewis is attempting a deception. I assume that he does know what his mother’s name is, how many siblings he has, and what he’s charged with.”
(“Why does the shrink assume that?” my student investigator, Bert Meyers, ever troublesome, asked later. “I don’t know,” I admitted. “I guess he can just tell.”)
But, the doctor went on, crazy people can lie, too, and Roberto might be crazy as well as a liar. Ganser’s syndrome is sometimes associated with hallucinations and delusions.
“But, Doctor,” I asked, “isn’t it possible that this ‘syndrome’ is just a system for lying?” (It’s necessary to subject a defense expert’s report to adversarial testing, but basically I was acting out an annoying personal trait which happens to be useful to a lawyer—the tendency to take the opposite view from whatever anyone else says.) “Mark Twain said,” I said, “‘the nice thing about telling the truth is that you don’t have to remember what you’ve said.’ If you’re going to lie, you need a system to keep your story consistent. Maybe Roberto thought, ‘I’ll always give the first answer that the true answer makes me think of.’ Also, isn’t it possible that if I had just killed someone, I might want to deny it, and to do so, might deny everything, deny reality? Mightn’t a person in that situation try to shake loose, try to get some room to maneuver, insist that is not a tie, that is not a newspaper, this is not a jail, I am not guilty of murder?”
“You seem to have an intuitive grasp of Ganser’s syndrome,” the doctor said. (I was flattered, always liking to hear that I have an intuitive grasp of anything, although, upon reflection, I realized that my knack for Ganser’s boiled down to knowing how to lie, which is easier and more common than knowing how to tell the truth.) He said that, as a matte) of fact, Ganser discovered the syndrome among institutional inmates, in prisons and hospitals, people facing the situation I had described.
“So,” I asked, “as likely as not—no, more likely than not—this syndrome arose after the shooting, not from a ‘mental disease or defect,’ but as a reaction to incarceration?”
“That’s right,” the doctor said. He said he would explore further if we wished, but that he probably would not be able to testify in support of an insanity defense.
§4-15
As the date for the report on Howard Robbins’s mental condition drew near, I went to talk to him at the D.C. jail, a modern building made of concrete mixed to look like a sort of pink granite. Some progressive architect had designed it to resemble a modern college dormitory, not that ambitious an undertaking, since modern college dormitories tend to look like jails. There are no bars on the windows, the windows themselves being made of something impenetrable, probably a spinoff from the space program. The jail is located adjacent to D.C. General Hospital, the poor people’s hospital; everyone who has lost his freedom is dumped in one convenient location.
A long line of visitors waited outside the jail for their entry slips, and then formed another long line to be frisked and pass through a metal detector. Lawyers were exempt from the first line, but not the second. I watched as visitors removed from their pockets Bic lighters, which make terrific flamethrowers and are forbidden inside. Each would pick a spot that suited him on the ledge above the outside doors and stick his lighter there. It reminded me of people sticking little pieces of paper into particular, fateful cracks of the Wailing Wall in Jerusalem, except the people in Jerusalem were hoping for miracles; these folks just wanted their lighters back.
The woman officer whose job it was to receive money for prisoners’ accounts sat chatting and laughing on the phone while a dozen people stood waiting for her to do her job. I imagined someone shooting her in a rage. But all they did was leave five dollars, two dollars, five dollars, and take their receipts. She was behind bulletp
roof glass, anyway.
The sergeant behind the glass divided his time between looking up prisoners’ locations on a computer and feeding himself potato chips and root beer. He obviously didn’t know the first thing about nutrition, or if he did, he didn’t care. He certainly didn’t care about locating prisoners. He’d look one up, and then he’d take five with the soda and chips. Then he’d look up another, and reward himself again. Often, you’d be told your client was not in the jail—what, did he step out?—and then you’d talk to him later and find out he’d been there all along. Or you’d wait half an hour, and finally you’d be sent the wrong man. What is the point of this man’s life? I asked myself as I watched the sergeant savoring his junk food. He’s not in rehabilitation. He’s not even in guarding. He just looks up names once in a while. Maybe he has a hobby.
A beautiful eight-year-old, all dressed up with bows in her hair to see her father, took off her coat, without being told, handed it to a guard, and stepped through the metal detector. The guard greeted her warmly. They knew each other.
Upstairs, as I sat in a blue Fiberglas ass-cup waiting for Howard, I watched the visiting going on. One woman, lovely like a model, sat sidled up to the glass wall between her and her man. She was wearing the poor person’s standard fake leather jacket, but she also had on a long, pleated flower-print skirt, incongruously elegant. The man talked to her via telephone through the soundproof, bulletproof glass. Those phones make you sound like you’re a million miles away. He smiled at her. She smiled back. They took no notice of me, or the fifteen other prisoners in blue workshirts and blue pants seated along the inside of the glass, or all the women seated outside looking in, identically posed, phones to ears. Reach out and touch someone. On the countertop beside the beautiful woman an infant lay, calmly drinking its bottle—a good baby. The woman pressed her hand to the glass; the man pressed his hand against the glass. Perhaps some warmth gets through. I’ve never tried it.
A guard in the control room motioned me into a glass booth. I sat down inside, thinking of The $64,000 Question. Lawyers were allowed “contact visits,” since the danger of passing drugs or weapons was considered small, although not so small as to exempt the defendant from a strip search after each conference with his lawyer.
Howard shuffled in. I stood up and shook his hand. I always did that. I didn’t always feel like standing up, but I did. Respect, respect, respect.
Somehow I had never gotten around to asking Howard if he had an alibi, so I did that now.
As a matter of fact, he had. The shooting was at 8:15, according to the police. He was watching the news from 5:30 to 7:30, then The Waltons. During the news, the phone rang. Howard went downstairs and asked his mother who was on the phone. She said the phone had not rung.
“During The Waltons, Sheila called me—but keep that quiet. She told me that David [her boyfriend] was drunk. And she said she heard that Lois and I were getting married. She was upset about it. In fact, she called me about it several times that week. I hung up on her several times.”
“Did anybody see you while you were watching TV?”
“Yes, my mother’s friend Johnny was there. He was joking with me, telling me to put down the window.”
I didn’t understand the joke, but decided to let it go.
“Howard, the prosecutor tells me that a friend of yours—he didn’t say who—heard you say, on the night of the shooting, “I’m in big trouble. I just shot two people.’”
“He’d have to be insane to say that,” Howard said. “He already apologized to my mother for saying that.”
That was taken care of. Howard wasn’t worried about it. He wasn’t worried about anything, except the fact that his mother had not raised the money to bail him out, which made him very angry.
“While you’re in for mental observation, you can’t be bailed out anyway,” I reminded him. He, not his mother, was my client, to whom all my loyalty was due, but I had fallen into the bad habit of looking out for her interests, trying to protect her from his wrath.
He told me again that if I’d get hold of his complaints against Sheila to the Civilian Complaint Board, the case would be dropped. I told him that I had subpoenaed them, but the U.S. attorney’s office couldn’t find any.
“Talk to Sheila’s mother,” Howard said. “She knows that there’s another Howard Robbins who went around Sheila’s house sometimes. And I got a neighbor who can testify that I liked Sheila and David, and that I’d never hurt them. He knows how bizarre this is.” He gave me the names of five other people who could say the same thing.
I told him I’d have all of them interviewed, which I did. I did everything he asked me to, to try to win his confidence, so that he would believe me when I told him that he had lost his mind.
He pulled some tightly folded sheets of paper from his pocket.
“What are those?” I asked.
“Just some work I been doing on my case,” he said.
The notes were block-printed in a large, childish hand on pink-lined steno paper:
The reverse situation is easy to understand: a sick insane man testifies and lies repeatedly.… Sheila could be protecting someone. It could be anyone. A drug pusher or criminal. And herself…. I will file suit against Sheila if set free. Or when. Sheila should be put away behind bars. Or in St. E’s. Sheila once got very angry about her daughter and I playing and talking together. She said she was afraid and that we would make love together when she got older or as a woman. Me making love to mother and daughter.
§4-16
Dum-di-dumdum.
“Come on in, Bert.”
I knew it was Bert Meyers at my door. Bert, the scrawny guitarist who was interning as my investigator, always announced himself by rapping out the portentous rhythm of the Dragnet theme.
“Hey, boss, here’s the Howard Robbins report from the shrink,” he said, tossing an envelope on my desk. “Something else might interest you: did you hear about Howard and windows?”
“He said something to me at the jail about somebody joking with him about putting a window down, but I didn’t understand it.”
“Way-ell,” Bert said, his eyes twinkling through his thick glasses, “everyone made fun of Howard because he got very anxious if every window in the house wasn’t shut tight. Even the slightest crack upset him, even in the dead of summer.”
“The dead of summer in Washington?” I said. “Now that’s crazy! That’s the sort of thing we’re looking for. You tell a jury about a senseless murder, they’re going to think, ‘Hell, I could do that, I’ve thought of it many times.’ But shutting the windows in summer—that’s insane. Now we’re getting somewhere.”
The report from our retained psychiatrist began by reviewing Howard’s hospital records. (Howard, being adamantly opposed to raising an insanity defense, refused to sign the releases that were required before the hospitals could legally turn his records over to me, but they handed them right over anyway.)
Howard had not displayed any mental problems as a small child. When he was in junior high school, however, people noticed he was spending an inordinate amount of time staring off into space. He began suffering nervousness, depression, insomnia, and nightmares. Howard became dependent on drugs, especially heroin and Bam (phenmetrazine), which he used so frequently that he had ulcerated sores on top of both feet, where he shot up. When, two years before he became my client, his brother died, Howard’s condition deteriorated. He began imitating his brother’s behavior and calling himself by his brother’s name.
At that time, his brother-in-law, a lawyer, took him to a hospital, where he was initially diagnosed as a paranoid schizophrenic, who was “dangerous to himself and others.” After a couple of weeks, he went AWOL from the hospital to try to score some methadone; because he’d been admitted as a voluntary (“non-protesting”) patient, he was automatically discharged after eight hours’ unauthorized absence, and was refused readmission to the hospital when he returned later that same day.
A year later, Howard’s sister brought him to a hospital emergency room. He’d been complaining that bees were bothering him. The psychiatrist on duty observed him repeatedly licking his fingers and dragging them across the floor, muttering, “I caught Sam when he crawled out of my body, and I have to stay here to capture him.” That doctor’s initial diagnosis was paranoid schizophrenia. He described Howard as “quiet and cooperative,” and concluded, “Potential to harm himself and others is negligible.” Howard walked out before any treatment could be begun.
Six months before the shooting of Sheila and David, Howard was brought to St. Elizabeths psychiatric hospital by his brother-in-law and the police, after he had punched his mother.
“He feels that no one wants to be friends with him, that someone is trying to kill him,” the admitting psychiatrist noted. “Also speaks of a former girlfriend who died several years ago in a manner which implies she is still alive and they are married. He says the police picked him up for no reason. Denied any history of being assaultive. Claims his mother and a girl are trying to hurt him. Says his prior hospitalization was result of his girlfriend hitting him in the head with a shoe…. According to the mother, he sleeps with a large cross, and once burned candles all around his bed. He often spoke of hearing a female friend speak to him, although she was not present. He reads the Bible frequently.” He was diagnosed paranoid schizophrenic, “potentially dangerous.” Howard signed himself out of the hospital “a.m.a.”—against medical advice.
“Mr. Robbins does admit to a degree of depression, which relates to his brother’s death,” our defense psychiatrist reported.
He admitted to frequent spells of crying, though he very carefully denied having any suicidal thoughts. On the other hand, he claims that he stopped going to work after his brother’s death because of a fear that he “wouldn’t be careful” and, as a result, “cut my arm off” in one of the machines at work.
How Can You Defend Those People? : The Making of a Criminal Lawyer Page 18
