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

by James S. Kunen

  Mr. Robbins was also adamant that the female victim of the shooting was in fact the person who was probably responsible for the shooting. She is seen by him as a love-starved child, who had grown desperate in her attempt to gain his affection.

  The major abnormality of this examination, which is suggestive of incomplete remission from a psychotic state, was blanket and overwhelming denial, not only of his involvement in the offense, but also regarding any suggestion that he is mentally ill.

  As a result of my examination, it is my contention that at this time Mr. Robbins is not fully competent to stand trial.

  Our shrink was not yet ready to venture an opinion as to whether Howard had been insane at the time of the offense, but suggested that there was “a good possibility that an insanity defense might be appropriately raised,” since Howard appeared to be suffering a manic-depressive psychosis aggravated by the use of Bam, which can itself produce “a toxic state that is psychotic in nature.”

  The obstacle to a successful insanity defense was that, as our doctor told me, “with a manic, the crimes aren’t crazy; it’s his judgment that’s distorted.” It was not how he killed, but that he killed that was crazy. Howard didn’t paint his victims red or cut them into little pieces, nor did he shoot down complete strangers from a rooftop. He shot the girl next door and her lover, as many a jealous man had done before; and—the D.A. had told me—he bought gloves to wear, to leave no prints on the gun; and he ran away afterward, and got rid of the gun—all very “rational” and indicative of a recognition of the wrongfulness of his conduct. It could be a tall order, convincing a jury of laymen that he was nuts at the time of the shooting.

  In fact, I was having enough trouble getting the court psychiatrist to see how screwed up Howard was. The problem was, as our psychiatrist told me, “Mr. Robbins has an unfortunate tendency to present himself as sane, and he has good cognitive understanding, so he fools people.” At the conclusion of his “thirty-day mental observation” (which actually consisted of two brief interviews in the jail infirmary), the court psychiatrist reported that Howard was competent to stand trial, and that he was not insane at the time of the shooting.

  When I telephoned the court psychiatrist and asked him what the basis for his conclusion about competency was, he said that Howard was able to explain what it meant to plead guilty, and his account of the offense was “consistent”—he continued to deny it. His mental status was “good”: he was “oriented times three” (knew who he was, where he was, and what time it was); he was able to interpret a parable; and his “serial seven” was “very impressive” (he was able to count backwards from one hundred by sevens).

  It was in Howard’s best interest to be found incompetent. When a defendant is found incompetent, he can be held for a period of time reasonably necessary to determine if he is likely to become competent in the foreseeable future. If it appears the defendant will remain incompetent, the government must either institute civil commitment proceedings or release him.

  Civil commitment is preferable to commitment following a verdict of not guilty by reason of insanity, in that the defendant may be held in a somewhat less restrictive facility and may be released sooner. Even if the government puts him on trial when he finally does become competent, his chances at that point of being found not guilty by reason of insanity are greatly enhanced by his track record of having been found nuts enough to be civilly committed.

  Howard was pleased to be found competent, but I asserted his right to a full hearing on the matter anyway, which was set down to be held in a month. He was returned to the jail.

  Meanwhile, I told the court psychiatrist that our doctor, who was well regarded among Washington’s community of 1,000 psychiatrists,* had found that Howard was incompetent. The court psychiatrist suggested that I ask the court to order him to evaluate Howard again, so that before the hearing he might file a report agreeing with our doctor, and that way “a court battle could be avoided.” (Read: “I won’t have to come to court and sit around all day.”)

  §4-17

  While I was dealing with the Robbins and Lewis murders, I had forty other cases—forty-two people I was responsible for. I wouldn’t compare it to bolting bumpers on Chevettes, but for me it was hard work.

  I remember one day I was in a groove. I needed to talk to a prosecutor, and I bumped into him in a hallway; I went to look for a file in the clerk’s office, and it was there; I walked into a courtroom, and my case was called, and the same thing happened in the next courtroom, and the next. There is in reality such a thing as being in a groove; the improbable will happen every so often. But typically I had the opposite sort of day: I called only people who didn’t answer; I went to see only people who had just left; I looked only for things that couldn’t be found.

  The client for whom I’d been putting in the most work was a man named Shirley Browning, who had been arrested for carrying a pistol without a license, conviction for which would trigger revocation of his parole from an earlier sentence and put him back in prison for several years. I’m sure it wasn’t easy being named Shirley, but that’s as far as my sympathy went. I really disliked the guy—he was a complainer, for one thing—but that didn’t stop me from trying to sculpt the facts and law into some stunningly innovative work of art that would win the suppression of the gun as the fruit of an illegal search by the off-duty police officer/fellow patron who arrested him in a topless dance bar. However, the more that Bert Meyers investigated, the clearer it became that the search was legal* and, incidentally, that Shirley was a vicious and dangerous man, who beat up his girlfriend and forced her to turn tricks as a prostitute for him. The latter information was not my concern, and I honestly based my recommendation that Mr. Browning plead guilty on my professional judgment that he would be found guilty if he went to trial.

  You’re not always rooting for your client. The trick is, and your ethical duty is, not to let your feelings interfere with your efforts on his behalf. I knew one woman lawyer who went so far as to get a male colleague to co-counsel a brutal rape case with her because she was afraid she might not try hard enough to get the guy off. When he was ultimately convicted, she was glad, and she was able to be glad because she knew she had done her best for him.

  I received a letter from Shirley Browning accusing me of being “a cheap dishonest lawyer trying to sell me out and trick me to plead,” and “threatening” to replace me with another lawyer (how could I stand it?). I didn’t view it with the amused detachment I would have expected from myself. It angered me.

  “I’ve got to start looking for jobs,” Ken Lloyd said when I told him about it. “I can’t take much more of these assholes.”

  Lloyd, the residually countercultural fellow who was my co-counsel on the Roberto Lewis murder case, had been at P.D.S. for five years, and would be there only six months more, as it turned out. Few lawyers stayed more than five years; many left sooner.

  You get tired of the exertions of the practice, having to be in court—several courts—every single day. And you get tired of the pressure—someone’s freedom always riding on you. And you get tired of what the exertion and the pressure are all about: you’re defending the Constitution, you’re defending everybody’s rights, but you’re also, more often than not—much more often than not—defending a criminal. That needs to be done, but it doesn’t need to be done by you, not all your life. After a while, it’s somebody else’s turn.

  The job takes a toll on your emotions. Of course, you feel sympathy for the victims (“complainants,” we called them—just “c/w” [complaining witness] in our memos), but you suppress it. It gets in the way. Nor can you afford to feel a lot of sympathy for the clients (“Δ” [defendant] in our notes). Some of them earn the courthouse epithet “dirtball,” but most of them are likable enough when you’re trying to help them, and you’d have to be a moral moron not to see that they are victims, too. It’s just that too much sympathy for the clients gets in the way of doing your job. You have to sel
l them on the advantages of doing five years instead of ten. You have to watch the iron doors closing behind them all the time. Even now, I know exactly where some of my clients are, and I will continue to know, exactly, to within a couple of hundred feet, where they are every minute of every day for the next ten, twelve, fifteen years. I hardly ever think about it. You don’t get worn out from all the pain and sadness. You get worn out from not feeling the pain and sadness. You get tired of not feeling.

  And you leave because you want to make some money. Most public defenders, and prosecutors, go into private practice eventually, where their litigation experience can be quite valuable.

  The day I got the annoying letter from Shirley Browning, Todd Winfield’s juvenile trial for assault with a dangerous weapon (pipe) was set, as was the preliminary hearing of John Fisher, a hapless middle-aged deinstitutionalized mental patient who somehow had managed to stab his girlfriend, another halfway house resident, through the neck without killing her. At 9:30 I told the juvenile court that I had to be upstairs at adult court, which was true. At 10:00 I told the adult court I had to be downstairs in juvenile court, which was also true. I could have gone on like that all day, although a few hours was usually sufficient to get a matter “kicked over” to some future date. It wasn’t my fault that the Superior Court of the District of Columbia couldn’t organize itself half as well as any mom-and-pop bakery—“take a number”—and I didn’t see why I should run out of my way to make sure that the ax fell efficiently on my clients.

  I really was supposed to be a lot of different places at the same time. Most of the criminal lawyer’s job involves running around to various places in order to be there, nothing less and nothing more, so as to ensure that the defendant’s every right is honored. It is this requirement of presence that forms the hard pit of boredom at the core of the lawyer’s profession. Were you not there—at lineups, at arraignments, at status hearings—all sorts of exciting things might happen: bogus identifications, pressured pleas, forced confessions, anything the mind could conjure up to inflict upon a reviled and powerless man, which is anything at all. But because you were there, absolutely nothing would happen, save a few more clanks of the gears. If I was there, I needn’t have been there. I always thought there should be a way out of this conundrum, but the solution must await further advances in robotics. I pin my hopes on Japan, where they have very few lawyers, incidentally.

  Justice delayed is justice as usual. As time passes, to paraphrase a famous jurist—I could provide the exact citation in a memorandum if I could have a few days, Your Honor—witnesses disappear and memories fade. Also, passions cool, and the defendant gets the opportunity to compile a long record of good citizenship (no arrests) against the day he faces sentencing, should that day ever come. All of this is good for the defendant if he is out of jail. If he is in jail, delay is helpful to the prosecution, since with every passing month, the defendant is likely to become more amenable to pleading guilty. (If he is ultimately acquitted, the defendant doesn’t even get an apology for the time he spent in pretrial detention; but if he is convicted, the time he has served is deducted from his sentence. If the length of his detention approaches the likely length of his sentence, he might as well plead. In any case, by pleading he can escape the cramped confines of the jail, where there are no recreation programs, contact visits, or diversions of any kind, and move on to the relative freedom of prison. Life is much harder for those behind bars who are presumed innocent than for those who have been proven guilty.)

  Since every defendant is either in or out of jail, delay is good for at least one side. And it is always good for the judges, who have more cases than it would be humanly possible for them to try, even if they worked more than six hours a day. The majority of my continuances were attributable to the lack of an available judge. The only party who has no interest in delay is the victim, and he doesn’t even have a lawyer.

  I’d managed to get the elderly woman-stabber Mr. Fisher out on bail, and he hadn’t appeared for his hearing. Why not delay and give him every opportunity to wander in before a bench warrant was issued for his arrest? What would you want your lawyer to do? And why not get pipe-swinging Todd Winfield’s assault trial continued for a fifth time, and maybe wear out the complainant? What would you want your lawyer to do? But that day, because I was annoyed by Shirley Browning’s letter, I was not in the mood for rule-stretching delaying tactics. I figured, Mr. Fisher is not going to show up; I might as well get his case called, and go do Todd’s trial.

  * * *

  “A feral child” who literally lived in the streets, Todd Winfield virtually cried out for intervention by the state. He was so unsocialized that he had not thought to wash either his clothes or himself “since the memory of man runneth not to the contrary,” to borrow a phrase from the common law. I had been trained always to sit close to my client, to put my arm around him and whisper in his ear, in order to forge an association between him and my likable self in the mind of the trier-of-fact. In this case, that was quite impossible.

  Todd was a nice enough fifteen-year-old, albeit a somewhat wary and taciturn one. He needed counseling, parenting, teaching, shrinking, job training, discipline, good food, and a clean bed. He needed everything except to be put in a penal institution, which was the one thing the government intended to do with him.

  Todd was accused of breaking the arm of a Korean grocer with one whack of a lead pipe, during an altercation that arose when the grocer accused him of having burglarized his store—a charge for which he was to stand trial separately.

  As is often the case when one gets down to the most concrete aspects of reality, such as lead and bone, there was no question about what ultimately had happened; Todd had swung the pipe and broken the arm. The slack in the causal chain was encountered when one backed up a few links: what had caused Todd to swing the pipe? Self-defense, we said.

  The altercation had taken place in and around a candy store, the proprietor of which, a Mr. Jesse, was our star witness.

  The big thing in our favor was that the complainant scarcely spoke English, but, as luck would have it, Mr. Jesse was blind, so we came out of the gate about even.

  Mr. Jesse was maybe sixty-five—it’s hard to tell with people life’s been cruel to. He spoke middle-class standard English with a firm dignity. He wore dark glasses and was conservatively, simply, cheaply dressed in black slacks and a black cardigan sweater. He was led everywhere by a shambling bum named Teddy Mulberry, but you got the feeling that it was Mr. Jesse who took care of Teddy Mulberry, mostly, and not the other way around.

  I led Mr. Jesse down the aisle to the witness stand as he tapped his long white cane ahead of him. He testified that Mr. Park, the grocer, came into his candy store and started arguing with Mr. Jesse when the latter denied that he was Todd’s father. “A lot of the boys from school nearby are like kids to me,” Mr. Jesse testified, “but I’m certainly not his father in reality.” Then Todd happened in, and Mr. Jesse heard Park shout at him, and grab him by the neck, and choke him, and throw him against the soda machine. He heard Todd fall to the floor, and heard Mr. Park stand over him, shouting. Then Park and Todd went outside. Asked what Todd’s reputation for peacefulness was in the community, Mr. Jesse replied, “About average for a boy his age in the ghetto.”

  Things went swimmingly with Mr. Jesse, but the prosecutor got him to admit that he hadn’t seen anything, and the judge, exhibiting our culture’s bias for the visual over the aural, seemed skeptical. I resolved that in the future, when I have a blind witness, I will first ask him a lot of questions about the exact layout of the crime scene, and of the courtroom, in order to demonstrate his reliability, so that the factfinder isn’t asked to take on faith that he knows what he’s talking about. The extreme example makes the general principle clear: lay a foundation for your witness’s credibility.

  As so often happens when one finds oneself in a rocking boat, I stood up and made matters worse, in this case by calling Teddy Mulberr
y to pick up the story with what had happened outside the store. This was a terrible lapse on my part, ascribable to panic born of inexperience, for I had learned and forgotten many times over that Mr. Mulberry had no idea what happened outside the store that day, or anywhere else at any other time, for that matter. In fact, I had subpoenaed him only to provide an escort for Mr. Jesse and to enrich their commonweal by an extra thirty dollars’ witness fee—an eminently just appropriation of public funds, in my view. But, finding my case dangling in the higher pan of justice’s scales, I reached for the weight nearest at hand, and it was he, and I listened in horror as he described what sounded like an unprovoked assault by Todd, insofar as any sense could be made of his ramblings.

  At the luncheon recess, I crossed the street to the Courthouse Carry Out (“Come In. It’s KOOL inside”). One of the lovely Korean women behind the counter looked at me and said, “The usual?” I nodded. “The usual,” she said to the woman at the sandwich board. This was one thing about being a lawyer that turned out just as I had pictured it: being known, being a regular at a courthouse joint, being recognized. It made me feel like a real lawyer. I was grateful to the Korean ladies for that. And their sandwiches were cheap.

  Little brown bag in hand, I continued on to the office. In the distance, I could hear the quiet “poof-poof-poof” of a twenty-one-gun salute for the currently visiting head of state—the King of Morocco or somebody. I paused to gaze, as always, at the statute of Diana and the Fawn which stands in the middle of the walkway. “Erected by His Friends with the Sanction of Congress in Memory of Joseph James Darlington—Counsellor, Teacher, Lover of Mankind, 1849–1920”—let’s see, that means he was seventy-one—C. P. Jennewein’s 1922 sculpture portrays a noble-countenanced, nubile Diana, soft and strong, her left hand poised protectively over the little fawn’s shoulder, her long, delicate right index finger raised, her lips slightly parted, about to speak. “Listen, fawn, there’s one thing you should know …”