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

by James S. Kunen

  “You don’t know it isn’t true,” he said. “All you know is that your client told you one thing, and another person told you something else.”

  I sent Billy’s brother home. He wasn’t going to do us any good.

  Billy Pepperidge took the stand. After he forthrightly and contritely confessed to having two prior convictions, one for receiving stolen property and one for interstate transport of a stolen vehicle, we moved directly to the day of the crash, since nothing could be worse than giving an alibi for the day of the theft and then not putting on an alibi witness.

  On the day of the crash, Billy had gone to the unemployment office. As a matter of fact, one of the papers recovered from the car by the police was a certificate, stamped and dated, entitling anyone who would hire him to a tax break. He identified, one by one, the other papers the police had recovered: a diploma from a course in cardiopulmonary resuscitation; a certificate for seventy hours’ study of blueprint drawing; certificates for advanced graphic design, offset duplication, bookbinding, and photography—all of them earned while he was in prison. Then there were the “help wanted, cook” ad and his last pay stub as a hotel janitor before he was laid off.

  Here was a young man who really wanted to make good. He looked good, too. He should have. He was wearing my clothes. A secondary benefit of this sartorial strategy was that when I looked at my client, I saw myself. I believed in him. He deserved some credit for that. Some people are good at being clients. They know how to get the most out of their lawyers. Most defendants know enough to be polite to their attorneys—murder is easy to forgive, but rudeness I will not abide—and praise their expertise, and never treat them like friends, replicating as nearly as possible that paradigm of professional relationships, to which all lawyers aspire, that of doctor and patient. But the really smart clients know that the key is to act as though they trust their lawyer. That triggers a feeling of responsibility in him. Billy Pepperidge had from the beginning shown a lot of faith in me. Accordingly, in addition to my usual reason for wanting to win—which was to win—I also wanted to vindicate his trust.

  Billy confessed to the jury his terrible drug problem and admitted that he got into that stranger’s car to buy Bam. Yes, the keys were in the car; there was nothing to suggest it was stolen. No, he had never been in it before.

  In summation, the prosecutor stressed the cops’ positive identification of Billy as the driver.

  I got up and suggested to the jury that a trial is very much like a radio—a similarity which had never struck me before. “You’ve got to tune it in. Don’t listen to the static. Listen to the music.” Just about everything the government had put on was static. The music was that “the Perfect Sergeant Fox and the Infallible Sergeant Doan” had made a mistake. Simple as that. They thought Billy was the driver, but somebody else was the driver—a case of mistaken identification. I gave an off-the-shelf defense example: “Haven’t you ever walked down the street, and you see somebody you know, and you’re about to call out to him, when you realize that you almost made a fool of yourself—it isn’t who you thought it was? That happens to everybody, except the Perfect Sergeant Fox and the Infallible Sergeant Doan.”

  We closed on a Friday afternoon. The jury was excused, to begin deliberating Monday morning. I spotted a lesson there: never close on a Friday night. The effect of the closing argument would be dissipated over the weekend.

  The jury deliberated for less than an hour, Monday morning. When they filed in to deliver the verdict, not one of them would look at us, and they weren’t smiling.

  The young woman foreperson got up and said, “To receiving stolen property—not guilty. To grand larceny—not guilty.”

  Clearly, it would be a compromise verdict: guilty of U.U.V. and destruction of property.

  “As to the unauthorized use of a vehicle—not guilty.”

  We had won!

  “As to destruction of property—not guilty.”

  I looked at Pepperidge. His face, rigid with tension, collapsed with relief. We smiled and shook hands. He said “Thank you.” The jury smiled, too. Why had they put on that poker face?

  The D.A. looked abashed. I turned away from him, because my impulse was to wink and shrug my shoulders.

  (Months later, at a party, the D.A. told me that he had learned a lesson from that trial: always subpoena all your witnesses, no matter how inconvenient for them. He’d had a third witness, a passer-by, who was ready to testify that he’d seen Pepperidge at the wheel of the car, but the D.A. figured he didn’t need him—he had the two cops.)

  After receiving the verdict, I went back to my office for a meeting with a new client. When he’d told me his story, he asked, “Do you believe me?”

  “Let me have one of your Kools,” I said. I lit up and inhaled thoughtfully. “It doesn’t matter,” I said in a cloud of smoke. “All I’m interested in is the evidence.” I didn’t want to say I didn’t believe him, because then it would seem I wasn’t on his side. But I didn’t want to say I did believe him, because then he’d think I was a fool. He was telling me that the eyewitness who saw him loading a stereo into his car’s trunk outside a burglarized apartment was mistaken. He had stalled there, and he was putting away his jumper cables, not a stereo. He kept pressing, “Do you believe me? Do you believe me?” So finally I said, “You’re my client. You want me to believe you? I believe you.”

  The A.B.A.’s Code of Professional Responsibility (Disciplinary Rule 7-102 [A] [4]) states that a lawyer shall not “knowingly use perjured testimony or false evidence,” but leaves unclear what “knowingly” means. The A.B.A. Standards Relating to the Defense Function, Section 7.7, suggests that the defense attorney should refuse to question a client who plans to lie, and not refer to the client’s testimony in summation—just let him sit up there and tell his story, and otherwise ignore him. But a federal court has held that for a defense attorney to refuse to argue his client’s case to a jury because he believes the client is guilty violates the defendant’s constitutional right of due process.1 An academic debate goes on about what lawyers should do about perjury by their clients. There is little question about what they do do. Eighty-five percent of attorneys in the District of Columbia responding to a survey said that they would question a perjurious client in normal fashion.2 To do anything else amounts to telling the judge and jury that the defendant is guilty, which hardly seems an appropriate thing for a defense attorney to do.

  The defense attorney does his part to discourage perjury by pointing out to his client that if he testifies and is convicted, although he’ll almost certainly not be charged with perjury (court dockets are too crowded), the judge will likely give him a longer sentence than if he did not testify. The client decides whether to take the risk.

  To expect witnesses not to lie is like expecting soldiers to fight according to the rules of chivalry. A trial is not a game. It is like a game—a contest given shape by certain rules, with a beginning and an end, played out in a specially designated arena by competitors who will emerge as winner and loser depending upon their measure of skill and luck—but the consequences of the trial extend beyond the trial itself; that’s where it differs from games.

  Defendants are expected to lie. The judge instructs the jury, “The defendant has a right to become a witness in his own behalf. His testimony should not be disbelieved merely because he is the defendant. In weighing his testimony, however, you may consider the fact that the defendant has a vital interest in the outcome of this trial. You should give his testimony such weight as in your judgment it is fairly entitled to receive.”3*

  Police, perhaps originally to avoid the suppression of illegally seized evidence, now seemingly as a matter of principle, almost always lie. Everybody lies. Jury panelists, desperate to get out of the waiting room and onto a case, uniformly swear that their heads contain not brains but virgin snow, unmarked by the imprint of any experience. Complainants lie, recalling five-second events from a year ago with a clarity and precision t
hat make stop-action videotape look like a fading daguerreotype. Judges require the defendant to lie when pleading guilty: asked “Are you pleading guilty because you are guilty, and for no other reason?” the defendant must answer “Yes,” though everyone in the courtroom knows he’s pleading in exchange for a break.

  It has been said that truth, like basketball, is a team sport.

  I did my duty in the Pepperidge trial. It was not for me to decide whether my client was guilty. It was my job to defend him. It was the prosecutor’s job to prove him guilty beyond a reasonable doubt, and he failed to do so. I was delighted that he did. Failure for him meant success for me, and for Billy Pepperidge.

  “An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.”4

  When Lord Brougham, in this oft-quoted statement of the defense attorney’s duty, says that the lawyer “knows but one person,” he means that the lawyer is to take account only of the interest of his client. But, as a matter of fact, the client is also literally the only person in the case that the defense attorney knows. You spend a lot of time with your client. You grow to care about him. The people on the other side are just names.

  I’ve heard laymen complain that the reasonable doubt standard enables some criminals to go free. It’s supposed to. You remember what John Adams said (page vii). A couple of former public defenders who started their own firm printed on their business cards, “A Reasonable Doubt at a Reasonable Price.” But just how much credit to give the reasonable doubt standard for the bias built into the system is problematical, because no one knows exactly what “reasonable doubt” means. Judges in D.C. read juries the following instruction:

  Reasonable doubt, as the name implies, is a doubt based on reason, a doubt for which you can give a reason. [Nowhere but in this instruction will you ever hear the word “reasonable” used to mean “for which you can give a reason.” Can you think of a doubt for which you could not give a reason?] It is such a doubt as would cause a juror, after careful and candid and impartial consideration of all the evidence, to be so undecided that he cannot say that he has an abiding conviction of the defendant’s guilt. It is such a doubt as would cause a reasonable person to hesitate or pause in the graver or more important transactions of life. However, it is not a fanciful doubt nor a whimsical doubt, nor a doubt based on conjecture. It is a doubt which is based on reason. The government is not required to establish guilt beyond all doubt, or to a mathematical certainty or a scientific certainty. Its burden is to establish guilt beyond a reasonable doubt.5

  Got that?

  Like any other instruction, it means whatever the jury decides it means. I assume jurors figure that they’re supposed to be really, really sure before they convict someone—as well they should be.

  It is my job to argue that there is a reasonable doubt. I can’t create that doubt; it has to be there, in the evidence. I do my job with pride, believing that the advocacy system is not only the fairest method of determining guilt but also the most reliable—reliable because it is fair: each side has the opportunity to negate the distortions of the other. It is not 100 percent reliable, however.

  The foregoing rationale is fine, as far as it goes, but it sounds like bullshit to me. After all, though it may not have been my job to decide whether Pepperidge was guilty, I couldn’t help but reach certain conclusions, and I did decide that he was guilty, when his brother told me that he had been in the car. And though it was indisputably my job as defense attorney to try to win an acquittal anyway, that doesn’t explain why I should want to undertake that job, or how I could perform it with such enthusiasm.

  It occurs to me that maybe I like putting criminals on the street; that, far from being an unfortunate side effect of the noble enterprise of defending the rights of the individual, maybe putting criminals on the street is the main point; that, possibly, I am motivated by the sheer joy of thwarting the will of authority. Maybe I became a defense attorney so I could be bad, and still be good. I don’t know. How would I know?

  I stopped leaning so hard on people to plead, after the Pepperidge trial. I would still try to tell clients when their cases were sure losers, but I had learned that sure losers were not so easy to spot. You never knew when you might win. And I had learned that I liked winning very, very much.

  A few months later I saw Billy Pepperidge back in court, and asked him if he was in trouble again. He said yes. I didn’t ask him what sort of trouble. I didn’t want to know.

  §5-07

  Don Winn, an endearing, happy-go-lucky fellow from Panana, was accused of possession of marijuana. He had been in the process of selling some sort of greenish herbal substance to a couple of men when something about them, perhaps the simultaneous chewing of gum and smoking of cigarettes, tipped him off, and he threw the herb into the air and ran away, spontaneously declaring, “I was selling to get milk for my baby,” which, like everything else he said—this was one of Don’s endearing qualities—was true. After a bit of a struggle, the cops picked up him and the herb, which tested positive as marijuana. It was a locked case for the government, and, at my suggestion, Don, who had no record and therefore would not be locked up, agreed to plead, until the moment his name was called to stand up and do so. At that instant he decided to share with me his decision to go to trial.

  I hastily informed the judge of our change of plans. The judge, who was not himself exactly beyond reproach—presiding over criminal cases while married to a prosecutor—had the audacity to upbraid me in open court for the “lack of professionalism” and “shoddy practice” evidenced by my failure to foresee this eventuality.

  I beat a hasty retreat with Don to the hallway.

  “Why don’t you want to plead guilty?” I demanded with unconcealed chagrin.

  “I don’t feel guilty,” he said. (He was confusing moral guilt with legal guilt.) “Some men drink too much. Some men gamble. Some men run around with women. I don’t do none of that. I smoke a little herb. There’s nothing wrong with that.”

  “Fine. Do you have any suggestion for a defense?”

  “I didn’t possess the herb. The herb was on the ground.”

  “Where you threw it. We’re going to have to do better than that, Don … I’ve got it! We’ll say it wasn’t marijuana.”

  The case was set down for trial in a month.

  Now I had an idea how to proceed. First, I got myself up for the game, advertising it as “The Trial of the Century” to anyone who would listen. Then I took Amy Strader, an extremely innocent-looking young investigator, out to a sidewalk one night and had her play the role of Don Winn She took a nickel bag of oregano and threw it through the air as I took photos with an electronic flash. As I had hoped, the photos showed that falling vegetable matter flutters down over a wide area—“like stardust,” Ms. Strader would testify. Ergo, it is impossible to pick up from the ground in a homogeneous clump, but must be scraped up, necessarily along with other substances, hopelessly compromising any lab test designed to detect marijuana. The photos would also show that the defense was a class operation.

  At the trial—which, despite our genuine eagerness to get on with it, was postponed seven times, four for lack of a judge—a policeman testified that when Mr. Winn ran away, he tackled him, but Mr. Winn broke free and had to be grabbed again, but broke free again, until, on the third try, he was successfully wrestled to the ground.

  “While you were struggling with him, you must have taken your eyes off the greenish herb on the sidewalk?” I asked, intending to argue that the cop had picked up the wrong greenish herb.

  “No, I kept my eye on it at all times,” he said. I shared a moment of head-shaking with the jury.

  I questioned the lab chemist at
length and in great technical detail, primarily to show the jury that I had worked hard and deserved to win, but incidentally to establish an element of our “argument.” He proudly agreed that his tests were so sensitive that as little as two one-thousandths of an ounce of THC (or “tetrahydrocannabinol,” as I impressively referred to it), marijuana’s active ingredient, would trigger a positive reaction. Where in the District of Columbia can you scrape the sidewalk and not come up with two one-thousandths of an ounce of THC?

  Mr. Winn did not testify. I told him he was an honest man, and this nifnaf charge wasn’t worth lying about. Anyway, lying wouldn’t work. I added that it was against the rules. He told me he’d never considered lying.

  When Amy Strader took the stand, I walked up to her, flashed our eleven-by-fourteen glossies at the jury, and said, “Without showing them to the jury [they had not been admitted in evidence], I show you these pictures and ask if you recognize them.” The prosecutor and the judge were on me like wildcats. They demanded to know just what the pictures depicted. I said they were a fair and accurate representation of a scientific test, but the judge didn’t agree. He said it might have been windier on the night of the experiment than on the night of the arrest. I showed him the weather pages from the newspaper for each of the two nights. Wind was not a factor. “That’s the wind at National Airport,” he said. What a stickler! He said oregano might not fall the same way as marijuana. “What marijuana?” I said. There was no pleasing him. He wouldn’t let Ms. Strader testify about the experiment, and he wouldn’t let the jurors examine the pictures. (They were visibly disappointed.) He did let us introduce a picture of the sidewalk, which showed that its surface tended to collect dirt—and he wouldn’t have let that in if he hadn’t just kept out a lot of other pictures. Practitioners take note: you can never have too many photographs.