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

by James S. Kunen

  “This is exactly the sort of stuff we need,” I said.

  “Do you think there’s any way it would be possible for you to let me know what happens at Howard’s arraignment tomorrow?” she asked, extremely hesitant to ask anything.

  “No problem,” I said.

  At Howard’s arraignment, we pled not guilty to first-degree murder, assault with intent to kill while armed, and carrying a pistol without a license. It was reported that the court psychiatrist, after seeing Howard again, had come to the conclusion that the defense psychiatrist was right—Howard was incompetent. At Howard’s insistence, I demanded a hearing at which to contest the finding of incompetency. Then I approached the bench and told the judge that I really thought Howard was incompetent, and I moved for the appointment of an amicus curiae (“friend of the court”—independent counsel) to present Howard’s argument for a finding of competency when the time for a hearing came, as I felt I could not in good conscience argue for something I thought was against Howard’s best interest.

  There is often a conflict between what the lawyer considers his client’s best interest, and what the client wants, a conflict that the lawyer is ordinarily bound by his ethics to resolve in favor of the client’s wishes: an attorney is the client’s advocate, not his guardian. The ethical question is always troublesome when the client appears to be a poor judge of his interests—as with juveniles—and becomes a real dilemma when the client appears to be, but has not been legally declared, incompetent.

  Judge Milmoe said perhaps an amicus should argue for incompetency—what my client didn’t want—but I should argue for competency—what my client did want—else I would destroy our lawyer-client relationship. But I didn’t want some deadbeat grabbed from the courthouse corridor arguing for incompetency, and I for competency, because I figured I would out-argue him and win, which I didn’t want to do.

  The government moved for a further thirty-day inpatient examination for competency and sanity at St. Elizabeths Hospital, hoping that close scrutiny would reveal that Howard was faking incompetency, or, if he wasn’t, that psychotropic medication would straighten him out enough to stand trial. I opposed the government’s motion.

  Judge Milmoe, as judges will, decided not to decide anything. He said he’d make his rulings at a status hearing in a few weeks. Meanwhile, he sent Howard back to the jail.

  §4-22

  Three weeks later I went to see Howard at the jail, to explain what was happening and to try once more to get him to go along with an insanity plea.

  I had by then received an investigator’s report of an interview with a Washington Star paperboy who had been out collecting on his route when two men and a woman came walking down the street toward him, arguing. Moments after they’d passed him, he heard two shots and turned to see one of the men on the ground and the other pointing a pistol at the woman, who was screaming. The man shot the woman once, as the paperboy recalled, and ran away. The boy recognized the man with the gun as Howard, whom he knew from the neighborhood.

  Howard’s mother’s friend Johnny, the man who teased Howard about putting the windows down on the night of the murder, had also been interviewed. Johnny described Howard as having been “spaced out” that night, “not himself.” “He was here, but he wasn’t here, if you know what I mean. He could have been in heaven or hell, or somewhere in between, but he wasn’t here.”

  Howard greeted me by saying that he didn’t want me to be his lawyer anymore. “The way things are going, it’s not too heavy a case. You’ve done a real good job,” he said with an appreciative nod, “but instead of having investigators go out, I think it would be better to just let the government go ahead and get itself in trouble. I’ve talked to a few lawyers in here, and they say the less I talk to you, the better.”

  I told him that with the information we’d developed, we had an excellent chance for a successful insanity defense, and no alternative.

  “I’m not crazy,” he insisted. “My mother wouldn’t have given me money to go shopping if I was crazy. Johnny wouldn’t ask me to put the window down if I was crazy.”

  “That’s one thing I didn’t understand, Howard,” I said. “What is the joke about putting the window down? I don’t get it.”

  Howard stood up abruptly. “I think we better end this right here. As far as I’m concerned, we haven’t talked.”

  “As you know,” I said soothingly, “I’m fighting the government’s motion to send you to St. Elizabeths.”

  “Well, you can stop fighting,” Howard said. “They can’t hold me just because I don’t want a lawyer. If they do that, they might as well hold me”—he looked toward the floor for a second—“because I got shoes on, or something.”

  §4-23

  “I’m feeling kind of lousy,” I said to my colleague Ken Lloyd on the eve of the hearing on my motion to suppress the pistol found on Shirley Browning, the annoying client who’d accused me of lying to him about his chances at trial. “I have a horrible cold, but I don’t suppose that’s a good reason to ask for a continuance. After all, Carl Yastrzemski plays with pain.”

  “Carl Yastrzemski gets paid six hundred thousand dollars a year,” Lloyd said.

  He had a point. But I felt somehow the time had come. I’d been working on the case for months. Now I had to do it.

  Against all the odds, I won. I did it by presenting evidence suggesting that the arresting officer had been sexually involved with a woman whom Browning had lived with (and beaten up), and that his frisk of Browning had not in fact been based on an “articulable suspicion” that he was armed, whether or not it could have been, but on a personal animus. In other words, as they say on the street, the cop “had a hard-on for” Browning—he was out to get him.

  I didn’t know whether it was true that the officer had been sleeping with Browning’s woman, but it was true that there were facts, provided me by my investigator, out of which to construct that implication; and it was certainly true that the cop was stupid. That was a fact, that was reality, that was the truth—and the truth will out. In fact, he wasn’t on the police force anymore, having been dropped in his rookie year after three times failing to pass a written test.

  (“That’s sad,” Lloyd said with a frown. “Imagine—too dumb to be a cop!”)

  The ex-officer testified that he had never been to Browning’s girlfriend’s house, then told me, two questions later, on which floor of her apartment building she lived. The judge decided that the cop had been caught in a lie, and one lie threw all of his testimony into doubt. Therefore, the government could not prove that finding the gun resulted from a permissible frisk, rather than an unreasonable search or seizure barred by the Fourth Amendment. The “exclusionary rule” requires that illegally obtained evidence be suppressed. Without the gun in evidence, the government would not be able to prove at trial that Browning was carrying a gun.

  This was one of only two motions to suppress physical evidence I ever won, although, like any competent defense attorney, I moved to suppress in virtually every case involving physical evidence. Search and seizure issues are explained to the police by prosecutors, so police always try to testify that searches took place in such a way as to make them legal, and it comes down to their word against the defendant’s, usually. Judges, for their part, bend over backward not to suppress evidence, since they know that to do so will result in the dismissal of charges.

  The occasional suppression of evidence and consequent dismissal of charges against an apparently guilty defendant upsets a lot of people. There are increasing demands for the elimination of the exclusionary rule as it pertains to physical evidence seized in violation of the Fourth Amendment. (The exclusion of statements obtained in violation of the Fifth and Sixth Amendments is less widely criticized, because violations by police of the right not to be questioned without an attorney are less arguably “accidental” than their violations of privacy rights; exactly what constitutes an unreasonable search or seizure is extremely unclear.)

>   The Fourth Amendment bans unreasonable searches and seizures, but it doesn’t say anything about what should be done with illegally obtained evidence. The exclusionary rule is a judicially declared rule of evidence which the Supreme Court has said is “implied” in the Fourth Amendment—that is, the Fourth Amendment doesn’t make any sense without it. Recently the Supreme Court has been retreating from that position.

  If it’s true that the exclusionary rule costs society more in unpunished guilt than it benefits society in protected rights—a premise that has not been established*—then perhaps it should be eliminated. (Of course, Justice Holmes insisted, “It is a lesser evil that some criminals should escape than that the government should play an ignoble part,”1 but leave that aside.)

  Whenever you change one part of the system, though, shock waves are felt through the rest of the system, often in unforeseen ways. A common suggestion is to eliminate the exclusionary rule, allow the introduction of illegally obtained evidence, and deter violation of the Fourth Amendment simply by fining or otherwise punishing police officers who are found to have violated it. At present, there are no sanctions against officers who seize evidence illegally.

  One consequence of this change would be that guilty people wouldn’t go free as the result of the suppression of illegally obtained evidence. Another consequence would be that there would no longer be hearings on motions to suppress such evidence. Without such hearings, the defense would lose its most important means of discovering the government’s case, and its only opportunity to question government witnesses under oath before the trial. That change could tip the scales of justice violently.

  Beyond that, without hearings on suppression motions, society would lose ongoing judicial scrutiny of the rules limiting police activity. Granted, rules are made to be broken. If they are not broken, they are not experienced as rules, and they have no circumscribing effect. But if there is no one arguing that they have (or have not) been broken, their position is never fixed, and they are not rules at all. If the only issue is whether a cop should be fined, we are not going to have our best lawyers arguing about it all the way to the Supreme Court, as we do now.

  Of course it’s terrible for guilty people to go free. That’s the price we pay for not having cops crawling in and out of our houses. Everybody wants something for nothing.

  All the charges against Shirley Browning were dismissed. A broad smile spread over his tobacco-stained teeth. No word of thanks. He just instructed me to get back his gym bag, which had been seized along with the gun.

  “What a job you did for that guy!” Lloyd said. “You have to admit it makes you feel good.”

  “Not as much as it would if it were a widow or an orphan,” I said.

  “Well, that’s pretty hard to come by,” Lloyd said.

  Thanks to my efforts, plus some good fortune—another pending case against him was dismissed because the government couldn’t get a tourist/armed robbery victim to come down from New York to testify—Browning was a free man, for a while, anyway. A couple of months later I was walking from the jail after visiting another client when I heard a voice calling to me from somewhere high in the building. “Mr. Kunen! Mr. Kunen! It’s me! Shirley Browning!”

  “Write me a letter!” I shouted, and kept walking.

  §4-24

  Roberto Lewis gave the court psychiatrists a run for their money. The first two reports filed during his sixty-day mental observation stated flatly that he was competent, but a different doctor wrote in a third report, “In response to questions about the court process such as: Before which judge have you appeared? He responded, ‘There is only one judge, God. I don’t know any other.’ His affect is generally flat and he appears to have difficulty answering simple questions.” The doctor called Roberto’s competency “doubtful.”

  Roberto remained mute during a fourth examination. However, as he was being led back to his cell, the doctor observed him stop and chat with some women inmates who had just arrived in the jail’s medical unit. The court psychiatrists concluded that Roberto was competent. Roberto agreed that it was futile to contest that finding, since our own shrink had come to the same conclusion.

  Four and a half months after his arrest, Roberto came into court to plead guilty to second-degree murder while armed, and robbery, lesser offenses than the first-degree murder, armed robbery, and carrying a pistol without a license charges on which he had been indicted. This got him out from under the mandatory twenty-to-life provision of the first-degree murder statute.

  I had given him my standard pep talk on guilty plea comportment. “You stand up straight, and you look the judge in the eye. And you don’t say ‘yeah’ or ‘no’; you say ‘Yes, Your Honor’ or ‘No, Your Honor,’ because she’s a judge, and you think that’s great, and you respect the hell out of her.”

  I warned him that the judge might ask him whether the prosecutor’s version of the crime was true. “I’ll say it’s none of her business,” he said, but he was just teasing me. I told him to admit his guilt and express deep regret about his past and profound hope for his future.

  The judge asked him only what grade he had completed in school, to ensure that the record would show that he understood what he was doing when he entered a plea.

  “Eighth, Your Honor,” he said, “but I’m studying for a high school diploma. But the man don’t come to the jail regular. It’s not as regular an education as I need, Your Honor.” He was a good student.

  He answered all of the judge’s questions correctly: No, no one had threatened him; no, no one had promised him anything; no, he was not under the influence of drugs or alcohol; yes, he had had enough time to consult with his lawyers, and yes, he was satisfied with their services; yes, he was pleading guilty because he was guilty and for no other reason. The judge accepted his plea and sent him to a federal youth facility (prison) for a pre-sentence study.

  §4-25

  Fifty-one percent of the felony cases handled by the Public Defender Service in fiscal 1980 were disposed of by guilty pleas. Only 8 percent went to trial. The remainder were dismissed, often as part of bargains for guilty pleas in other cases. Of the felony cases in which the Public Defender Service did go to trial in fiscal 1980, 44 percent ended in guilty verdicts. Thirty-six percent ended in not guilty verdicts. Fifteen percent were mistrials because of hung juries. Five percent were mistrials for other reasons.1

  It is impossible to describe any complex human activity accurately with numbers alone. For example, in baseball—which has been subjected to far closer statistical scrutiny than the courts ever will be—you can look at a player’s batting average, slugging average, on-base percentage, total bases, homers, runs batted in, runs produced, runs produced per at-bat, average with men in scoring position, even game-winning r.b.i.’s, and still not be sure whether he’s a bum in clutch situations who jacks up his stats in 13–1 May romps over the Mariners.

  Court statistics don’t even come close to quantifying reality. Defendants are not cases, and cases are not counts. A defendant is one person (or corporation, which is a “legal person”). A count is a single violation of a single law. A case is a charge, or a group of charges that are triable together, against one defendant. One trial of three co-defendants is three cases. If a defendant is tried on four counts, and the jury finds him not guilty of murder, not guilty of rape, not guilty of kidnapping, and guilty of possession of a hypodermic needle, his case is counted as a guilty verdict. Many cases that are dismissed before trial are begun again under new docket numbers, so the same underlying case may be counted as a dismissal and as a verdict or plea.

  Statistics indicating that “only 8 percent of felony cases go to trial” and “41 percent are dismissed” are misleading, and are often used by “law-and-order” politicians to mislead. But it is true that the vast majority of cases are pled to or dismissed. Trials are the exception.

  There isn’t time to try everybody, and there isn’t room to lock everybody up. (On any given day, there ar
e more than half a million people under lock and key—awaiting trial or already sentenced—in America’s criminal justice system, the world’s third highest per capita incarceration rate, after the Soviet Union and South Africa.2) So the prosecution wants to bargain. The defense wants to bargain to make the best of a bad situation. If it’s likely to lose at trial, it will surrender, if, in return, the prosecution will reduce the charges. There is also the hope that the judge will go easy at sentencing. (In Washington you can bargain for the prosecutor to support, or at least not oppose, a particular sentence, but ultimately you roll the dice not knowing what the judge will impose. In New York City the judge makes a promise about sentencing before the defendant has to decide whether to plead.) “He pled, Your Honor” means “He played ball, Your Honor.” It suggests not so much that the defendant is repentant, on the road to rehabilitation, as that he has saved the court a lot of work.

  Some critics have suggested that since people who are convicted after trial usually get heavier sentences than those who plead guilty, a penalty is being imposed for the exercise of the constitutional right to a trial.

  The Supreme Court doesn’t see it that way. “We cannot hold that it is unconstitutional for the state to extend a benefit to a defendant who in turn extends a substantial benefit to the state and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind which affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary,” Justice White wrote in an opinion3 typifying the Court’s lofty perspective on, and consequent hazy view of, the criminal justice system.

  As a practical matter, my clients generally benefited from plea bargaining. Aside from affirming your human dignity, giving you a civics lesson, and making you the center of attention for once in your life, a trial doesn’t do that much for you when you’re caught with your hand in the cookie jar. Thanks to overcrowded dockets, a guilty pleader could at least get some charges dismissed, even if the legal maximum sentences of the remaining counts did leave the judge sufficient discretion to hit him over the wall.