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

by James S. Kunen

  In summation, all the prosecutor had was a lot of facts. We had the high-handedness of government. “Mr. Winn’s future depended on the outcome of that lab test,” I said, “and the stuff they were testing had been lying on the ground. Suppose you have some disease that could ruin your whole future, and the doctors don’t know what it is. So they call for a blood test. A lab technician is carrying the test tube with your blood in it, and, whoops! he drops it on the floor. And he says, ‘That’s cool. No problem. I’ll just swab it up off the floor and test it anyway. Good enough for government work.’ But is it good enough for you? Is it good enough for Mr. Winn? … As for the officer’s testimony that he never took his eye off the substance on the ground: Wasn’t that great police work? Wasn’t that fantastic police work? Wasn’t that unbelievable police work?”

  “Not guilty,” the jurors said. They were smiling.

  The Winn decision was an example of “jury nullification.” Although they are never so instructed, juries are in fact at liberty to nullify the law by refusing to convict despite the evidence. In this case, jurors told me that they were annoyed by the police officer’s personal style—he wore gold chains and sunglasses—and by his gratuitous lie about keeping his eye on the grounded herb; and by the fact that the judge frequently asked witnesses prosecutorial questions, and made a point of reading and shuffling papers during the defense summation. They may also have thought the police should have better things to do than drag a man into court with one fourteenth of an ounce of “herb” in evidence (although convictions for the possession of small quantities of marijuana are common in D.C.). Once the jury decided to acquit, they had only to find something “to hang their hats on,” that is, to find a reason for their verdict. They decided that they couldn’t be sure the material scraped up from the sidewalk was the same material Mr. Winn threw down, or at least that they could say that.

  Juries work in strange ways. A friend of mine who did jury duty reported that several jurors who had convicted a defendant said they would have acquitted him “if only he had shown some remorse.”

  §5-08

  I won my third trial as well. The client who told me that he was putting jumper cables, not a stereo, into his trunk was telling God’s honest truth. It turned out that the eyewitness, who was a dentist—that’s what made me believe him, on paper—had seen more than one man at the crime scene, and he had gotten them confused.

  Three-and-0! I was forming two opinions: that I was invincible, and that there is no way to tell whether someone is lying. I still hold the second opinion.

  The crux of the state’s evidence in my fourth trial was that a witness saw a blue car drive away with some stolen goods, and that the same witness saw my client in what he purportedly recognized as the same blue car, shortly afterward. I had recently seen a lawyer win a case in which he argued to the jury that if they convicted his client, they were convicting him for wearing a red sweater, and that was all. I told my jury, “If you convict this man, you are convicting him for driving a blue car, that’s all,” and that’s exactly what they did. (“It only works with sweaters,” my colleague told me.) As my client was led away, stern old Judge Hannon said to me, “Thanks for looking out for him, Mr. Kunen.”

  He understood.

  §5-09

  Lloyd and I drove the twenty-five miles down I-95 to Lorton, Virginia, to talk to Roberto Lewis about his pending trial for the murder of a fellow jail inmate. The Lorton Correctional Facility of the D.C. Department of Corrections holds 2,500 men convicted of felonies.* Located amid rolling pastures and wooded hills, the facility consists of a red-brick turreted fortress, “The Wall,” for maximum-security prisoners; and, in the fields nearby, for the medium- and minimum-security prisoners and youthful offenders, a collection of barracklike “dormitories,” which could be part of a particularly bleak and isolated state college but for the chain-link fences and concertina wire surrounding them. Time at Lorton is time lost. Life consists of exquisite boredom punctuated by frequent violence, and that is all. There is an auto mechanics course and a gourmet cooking course, but most inmates spend the day getting high on drugs smuggled in by visitors and, beyond question, by guards. When prisoners are transferred from Lorton to halfway houses for work release, they immediately undergo urinalysis for drugs. One half test positive.1

  Roberto Lewis had been sentenced, at his own request, to a federal facility, where he hoped to get some job training and to avoid violence at the hands of enemies his older brother had made at Lorton, but he was being held at Lorton while awaiting trial for the jail murder.

  Lloyd and I were escorted into the maximum-security facility, where convicts deemed to be dangerous, or to be in danger, may spend several years before being transferred to medium security—several years without ever being able to see beyond the thirty-foot Wall.*

  We sat down with Roberto in a bare, fifteen-foot-square room, where maximum-security prisoners were allowed their “contact visits.” Lloyd and I explained that we had a medical expert ready to testify that the cause of death of the young man who died ten days after a brawl with Roberto’s crowd was not a blow to the head, but the continued administration of a certain drug long after a “textbook case of allergic reaction” had set in.

  (Generally speaking, it is considered a foreseeable consequence of injuring someone that he is going to run into some incompetent doctors down the line; and the original bad actor who hurt the victim is held responsible for all the injuries that “result from” his blow, including those piled on by a little malpractice. But gross negligence can be deemed an “intervening cause,” which cuts off the responsibility of the first bad guy. If, for instance, Roberto’s victim had been accidentally dropped out a window at the hospital, at that point he would become the hospital’s victim. That, we said, was essentially what had happened.)

  We might be able to win a trial, so we had good leverage for a plea bargain. “We might be able to get you a plea which will add only a little to the time you’ll be locked up,” I said.

  “I ain’t locked up,” Roberto said.

  “Oh, you mean they can’t lock up your soul?” I ventured. Roberto nodded.

  “I know that,” I said, “but the fact is there’s a lot of things you can’t do in here.”

  “Like what?” Roberto demanded.

  “You can’t take a walk in the woods.”

  “I don’t do that.”

  “Well, you can’t go out with girls.”

  Roberto nodded ruefully. But even granting that there might be some reason to care about the length of his imprisonment, he maintained his usual resistance to pleading—this time reinforced by a sincere belief that he could not possibly be guilty of killing someone he had not touched. Considering the rather marginal sentencing concession he had won by following our advice the first time—he got fifteen years instead of twenty, but he gave up his trial, and at a trial, you never know—we were not in the best position to lean on him now. He agreed to think about it.

  On the way home, Lloyd and I decided that Roberto had been taken in by that ubiquitous Ben Shahn poster that says “You can lock a man up, but you can’t imprison his ideas.” They ought to lock Ben Shahn up, we decided. We’d tell him, “We have good news and bad news, Ben. The good news is, they can’t imprison your ideas. The bad news is, they’re locking your ass up for fifteen years.”

  As it turned out, the government didn’t want the hassle of a long, complex, and expensive murder trial, so they made an offer even Roberto couldn’t refuse. He pled to assault with a dangerous weapon and got just fifteen months tacked onto his sentence. One of the other defendants also got fifteen months, and the third had his charges dropped.

  I suspected that they had all benefited from a domestic corollary of the “Mere Gook Rule.” The Mere Gook Rule, as explained to me by Army lawyers in Vietnam, held that an American found responsible for the wrongful death of an “indigenous national” (Vietnamese) should receive light punishment, because the life lost
was that of a “mere gook.”

  The Mere Gook Rule was, of course, unwritten, as it offended one of our fundamental values—all men are created equal. It was tacitly observed because it served another of our fundamental values—the punishment should fit the crime. So many people were killing so many Vietnamese that it seemed out of proportion to imprison somebody for a long time for doing what, regardless of nice distinctions based on motive or circumstance, came down to the same thing—killing Vietnamese.

  It is, in any case, a well-recognized principle of jurisprudence that, although all men are created equal, for certain legal purposes they don’t stay that way. Try running your car over one helpless old lady and one robust young Rockefeller, and compare your liabilities. All life is precious, but let’s talk about potential earnings … This sort of calculation has no place in the criminal law, but as a practical matter, sentencing judges take a particularly dim view of wasting prominent members of the community; for one thing, the disposition of such cases receives wide public attention. It almost amounts to a separate offense: Nth-Degree Murder—killing someone on the front page. By contrast, because the victim in Roberto’s case was himself a lowly prisoner awaiting trial on a murder charge, it is possible that the judge and prosecutor, consciously or not, thought of him as a “mere gook.”

  §5-10

  We—Gary Kohlman, head of the P.D.S. Trial Division, had stepped in to assist me on this high-stakes case—had learned from William Buie that one of the putative “eyewitnesses” who had “identified” him as the bus-murderer was a twelve-year-old neighbor of his who hadn’t even seen the shooting, but had joined the crowd that formed afterward. She had said something to a police officer about recognizing Buie. This became a “positive identification” in the prosecutor’s files.

  The prosecutor confirmed that the little girl, whom he had never interviewed, was one of his witnesses. He would not tell us who the other two eyewitnesses were, and the judge denied our motion to order him to do so. The courts in D.C. put a higher value on the protection of witnesses than on the preparation of a defense, and the judge considered it an insufficient safeguard that we promised not to disclose the witnesses’ identities to our client.

  If two witnesses testified, “That’s him,” Buie would probably be eligible for parole in fifteen years. We had to get the prosecutor to drop the case, by proving that Buie did not commit the murder.

  We had Buie take a lie detector test. The examiner found that Buie’s physiological responses “were not indicative of deception” when he said he had not been on that bus, had not shot anyone, and had not asked anyone to lie for him. Our investigators established that Buie had never lived near, or gone to school with, or worked with the decedent. They showed Buie’s picture to the decedent’s friends and family. No one recognized him. I personally interviewed the twelve-year-old “eyewitness” three times. In between long periods of vacantly sucking her thumb, she told me various stories that were inconsistent in every detail but one: she had not seen the shooting. In the presence of her mother, she signed a statement to that effect.

  We took all our information to the prosecutor—the alibi, the polygraph, the recantation by his witness. We laid out our whole case. He refused to drop the charges. I couldn’t really blame him. Our evidence strongly suggested that Buie was innocent, but his evidence suggested that Buie was guilty. It was proper for him to leave it to the jury to decide the fact of the matter. On the other hand, no one on the government’s side seemed to care very much about investigating the case, once they had those “positive IDs” in hand, although, theoretically, the prosecutor’s job is not to convict, but to see that justice is done.

  (“The United States wins its point whenever justice is done its citizens in the courts” is carved in the wall at the Department of Justice. “If you believe that,” an ex-prosecutor once told me, “I have some Florida swampland that might interest you.”)

  “What’s Buie’s motive supposed to be?” I asked the prosecutor. “It couldn’t be robbery. The decedent’s money wasn’t taken.”

  “We’re working on that,” he said. “We have an idea, a belief.”

  He wouldn’t say anymore, but his “idea” probably had something to do with drugs. Our investigators had learned that the decedent had borrowed thirty dollars just before heading down to U Street, a heavy drug traffic area, and the prosecutor must have known that the dead man had needle tracks on his arms and a syringe in his pocket. The thing was, anybody would tell you Buie “wasn’t about” drugs.

  Just weeks before the trial, we learned that a certain defendant was trying to work a deal for himself by snitching on other people, and one person he was ready to inform on was a man who had bragged to him about shooting someone on a bus. This had not, of course, come to the attention of our prosecutor, because in criminal court, the thumb doesn’t know what the index finger is doing. The snitch, unfortunately, was not going to give up his information to the government without a deal, and that would take time—too much time.

  My colleague Kohlman, using an information network he had developed over the years, was able to come up with the name of the man who had bragged about shooting someone on a bus. It was a certain “B.J.,” a former client of his.

  Before we gave the name to the prosecutor, we at least had to make sure B.J. had been in town on the day of the killing. If we gave the prosecutor information that proved false, our credibility would be squandered. Kohlman thought it would be a good idea to go out and question B.J. He asked me if I’d like to come along.

  This was something new. I had never before spoken to a murderer who was not my client. And this murderer, in particular, had interests adverse to mine. I was trying to get him convicted of a crime. He might murder me.

  “Sure, I’d like to go,” I said. I’d always been a glutton for experience. “I think it would be interesting. But I don’t want to interfere. Maybe my curiosity isn’t a relevant consideration.”

  “Well, the main point of all this is to amuse ourselves, after all,” Kohlman said.

  We made several forays to B.J.’s parents’ home, a brick row house in the flat-as-a-pool-table area down by the Navy Yard in southeast Washington. B.J.’s parents held Kohlman in high regard because of his past services to their son, but when you see two white guys in neckties coming up your front steps, it can only mean trouble. Each time, we assured them that we just needed to talk to B.J. about another client’s case. Each time, they told us that they didn’t know where B.J. was.

  “They’re circling the wagons,” Kohlman said.

  Finally we ran into B.J. as he tinkered with a bicycle on the sidewalk in front of his parents’ house. Kohlman told him straight out that we were representing a man accused of shooting someone on a bus in July, and asked him if he recognized the victim’s name.

  B.J. repeated the name thoughtfully as he studied the wrench in his hand. “No, can’t say I do,” he said, resuming his work on the bike.

  Kohlman asked B.J. how he’d been and what he’d been up to, and established that B.J. had been in Washington around the time of the shooting. He didn’t ask B.J. if he shot the guy.

  I noticed that B.J. matched the description of the gunman, as did Buie, yet B.J. and Buie resembled each other only slightly. Buie was much darker, and had heavy-lidded, sleepy eyes. B.J.’s features were finer. He also seemed to have a harder, more aggressive look, but I may have imagined that.

  Our investigators showed B.J.’s picture to the decedent’s associates, and they did recognize him.

  Kohlman, observing that legal ethics have to be “situational,” resolved his tangle of ethical duties—to his former client B. J., to his sources of information about the snitch, to Buie—in favor of the “moral imperative” of averting the conviction of an innocent man: we took our information about B.J. to the prosecutor.

  The prosecutor’s relief was apparent. He obviously wasn’t ready for trial, and was more than happy to join us in requesting a six-month continu
ance, which the court granted.

  Buie, looking sharp in a blue parka and pants ensemble with gold racing stripes, came into my office to get the news. He was actually somewhat annoyed by the continuance. He’d been living with the murder charge for six months and craved resolution. His friends were ragging on him all the time—“Hey, killer, who’d you blow away today?”—that sort of thing, and he was sick of it. I apologized, adding, “But what’s the hurry to be put on trial for murder? It’s not that great an experience. It isn’t our fault we found out about somebody else doing it only a week ago. We might never have found out. God loves you.”

  Just in case we had to go to trial, I asked Buie for a list of possible character witnesses. He had a long one, replete with employers, ministers, and schoolteachers.

  “Fortunately, you’ve led a good life,” I pontificated. I found myself doing that occasionally—it comes from sitting behind a desk in a chair that tips back. “This is why it pays to live a good life. You find yourself in trouble, you have all these good people ready to come forward and say, ‘He’s a good person.’ If you hadn’t lived right, you couldn’t say, ‘Hold it. I want to go back and do it right.’ You have to do it right the first time.”

  “That’s right,” he agreed, smiling self-consciously.

  “Character is fate,” I said. “The truth will out.” I felt, just for a moment, that in the scheme of things, I was a moral instrument, or that Buie and I together were, hammer and string.

  §6-01

  Mrs. Carolyn Ianini, sitting in her parked car 100 feet from the Bolling Air Force Base headquarters building, had just been thinking how quiet it was, when the shots rang out. Phil Rendle, standing atop the stone steps in front of the building, about to go in for his human relations seminar, ducked for cover. Sarah Joswick, waiting to pick up her husband at the curb at the foot of the steps, thought that he might be hurt and jumped out of her car to go look. Ron Janis, walking on the other side of the street, turned in time to see a man burst through the door, run down the stairs, and disappear through a hedge.