Judge Waldorf’s endless forehead furrowed all the way to the top of his pink pate. “I believe you’re right,” he said.
You could feel the prosecutor’s heart rising into her throat. “Your Honor, the Air Force security police are even now on the way to pick up the defendant. Perhaps if we could pass the case—”
“What case?” I said. “The government has dropped the case.”
“Mr. Kunen’s right,” Judge Waldorf said, appearing to enjoy the mischief of it all. “Come on, let’s go,” I said, grabbing the startled Croft’s arm and pulling him down the aisle. His sleeve slid up, revealing the orange vinyl ID bracelet the police had riveted around his wrist. Next to the D.A., Croft was the most surprised person there, but he trusted me enough to follow; or, at least, he liked where I was going.
We practically ran down the aisle, burst through two sets of swinging doors, headed down the hall, made it to the central lobby, could see the street through the glass front doors, when we heard pounding hooves behind us. We turned to see a gigantic U.S. marshal running toward us, arms flailing.
“Hold it right there!” he said.
“What is it, Marshal?” I inquired, trying to sound calm.
“You are under arrest,” he said to Croft. “I am a United States marshal. I have jurisdiction to arrest you because I have probable cause to believe that you have committed a felony. I am holding you for the military authorities.” He took out his handcuffs. Croft looked at me. I made a quick calculation and decided there was no percentage in non-cooperation.
“He’s legally correct, Mr. Croft. I suggest you give yourself up peacefully, here, with me watching. If you run away, they can use force to apprehend you, and there won’t be anyone to watch. They could even shoot you.”
Croft held out his wrists. The marshal, still panting, put the cuffs on, and the three of us stood there, uncertain, coming to grips with a new situation. Just then three youngsters wearing blue berets arrived—the Air Force security police. The marshal handed Croft to them. They said they had orders to transport him to the stockade at Fort Meade.
I told them that I was his lawyer, and that I did not want him questioned. I told Croft to remember to say nothing to anyone—a simple enough instruction—that he would have a military lawyer appointed for him, and that I would contact that lawyer.
“Can’t you represent me, man? I’d like to have you.”
I said I doubted it, but I would look into it. “Remember, don’t say anything to anyone.”
They took him away, out the door, out of sight—I thought, out of my life. I didn’t realize what an impression our little escape attempt had made on him. “Now, here’s a lawyer who really wants to get me out.”
The security police took Croft to the stockade, my last words to him—“don’t say anything to anyone”—no doubt ringing in his ears. But he was not through talking. When he was brought that afternoon to his commanding officer to be informed of the charges against him, he said, “I didn’t kill him. He pulled a gun. It was self-defense.” While trying to deny culpability, Croft had succeeded in admitting again that he was at the scene of the shooting, and, one might infer, fired the shots—“it was self-defense.” Without his own words, the government would have had an uphill battle proving he was even there, since witnesses were able to provide only a general description of a man running away; none were subsequently able to identify Croft at a lineup; contrary to what the homicide detective had told him, no one had seen his car at the scene; and no one had seen the shooting itself.
§6-03
The next day I got a phone call from Captain Larry Arnold, who’d been appointed Croft’s defense attorney. He explained that in addition to his right to free representation by a military defense counsel, Croft had a right to retain civilian counsel at his own expense, and Croft wanted me, though he had no money.
I was able to arrange things at work so that soon I was riding up to Fort Meade in Captain Arnold’s ancient red Eldorado to talk to our client, Peter Croft.
Captain Arnold, a man about my age, thirty-three, had slightly protruding blue eyes and buck teeth, which combined to give him the appearance of being perpetually on the verge of saying something startling. During our forty-five-minute drive he restricted himself to briefing me on military procedure. He stressed that I, as civilian counsel, was chiefly responsible for the conduct of the defense, a fact he didn’t seem to mind at all.
We agreed that we had to get down every detail surrounding the incident before Croft forgot—everywhere he went, everything he did, everyone he saw. Then everybody who had seen him would have to be interviewed before they forgot and, ideally, before men with badges and guns got to them and discouraged them from talking to the defense. (It is perfectly proper for either side to talk to the witnesses of either side, but the police often tell witnesses not to talk to the defense, and we always remind witnesses that they don’t have to talk to the police.)
The Fort Meade stockade was an unimposing one-story brick building, secured only by a single chain-link fence topped with razor concertina wire. A fatigue-clad teen-aged girl at the reception desk asked who we were, looked at my lawyer’s ID card, and we were in. Croft padded down the hallway in slippers and a bathrobe, rubbing the sleep from his eyes, though it was only 8:00 P.M. He and I sat side by side on a green vinyl sofa, Captain Arnold sitting on a chair opposite. We were in a large linoleum-floored recreation room, which opened onto the front reception area. It was disconcerting not to be enclosed in an interview cubicle, as at the D.C. jail. We talked softly, conspiratorially. Croft, for his part, seemed hesitant to speak within earshot of his own military defense counsel. He didn’t trust officers.
On the day of the incident, Croft said, he left for work at 6:00 A.M., as always, and arrived at the Air Force office of scientific research at 6:20. He worked routinely, punching epidemiological survey data into a computer, until his noon lunch break, when he played checkers with a coworker (who later told us that Croft was relaxed and jovial, as always. All his co-workers were fond of Croft, though none knew him well. “He’s a real killer,” a cleaning lady said, meaning that he told very funny stories).
At 1:45 P.M., Croft said, the cleaning lady told him that he had a call on the hall pay phone. He got on the phone and found that it was Sales. Sales, in a calm voice, told Croft that Croft’s wife wanted a divorce and asked him to come see him at the headquarters building when Croft got off work. Croft went back to his console, where he remained until 2:10 P.M., when he again played checkers for fifteen minutes with a co-worker (who noticed nothing unusual about Croft’s mood). He left work at 2:25 P.M.
The shooting took place half an hour later, 200 yards from Croft’s workplace. Croft offered no account of where he went or what he did during that half hour. He might, for instance, have been getting whacked out on drugs and/or getting a gun. I didn’t press him. I told him that at some point we were going to have to account for that time, and that he should try to remember where he had been.
Croft repeated the account of the shooting he’d given the police. After the shooting, he said, he drove home, and at 5:45 he visited a friend, a former airman named Daniels, from whom he had borrowed a five-shot .38 revolver a month earlier. He’d borrowed the gun because his house had been burglarized while he was out in Illinois trying to reconcile with his wife, who had moved with their two sons after he beat her up during an argument about her affair with Sales. The Illinois excursion turned out to be a bad trip in every way: his wife showed no interest in reconciliation, urging him to “let things be the way they are. Don’t make it rough on him [Sales].” He wrecked his car on the drive back, badly banging his head; and when he got home, he found an intruder asleep in his house. Croft subdued the sleeping man with a couple of whacks with an ax handle and held him for the police, but the incident left him feeling nervous and in need of a handgun, so he borrowed Daniels’s.
Croft had, in turn, loaned Daniels a shotgun, and on this evening, after t
he shooting, Croft asked for it back. Daniels gave it to him. Croft stayed at Daniels’s for half an hour, talking about sports and the weather, and playing with Daniels’s little children. (Croft seemed perfectly normal to Daniels.) Neither he nor Daniels mentioned the five-shot revolver.
From Daniels’s, Croft went to see some friends at Bolling’s Blanchard barracks. They told him that the police had been looking for him. “The police are nuts,” Croft responded. After fifteen minutes he left to see Kathy Foster at the N.C.O. club, where he was arrested.
It had been very tedious, reconstructing every minute of a day that was thoroughly unremarkable but for one explosive moment, and I thanked Croft for his help. (I often thought in terms of the client helping me, rather than the reverse.)
“That’s okay, man,” Croft said as he arranged his features into an appreciative look. “I appreciate what you’re doing for me. Tell me, how do our chances look?”
“Anything can happen at a trial,” I said.
§6-04
We were going to trial. The only alternative was to eat the whole beef—plead guilty to murder and possession of an unregistered firearm (the shotgun), as charged. Under Article 118 of the Uniform Code of Military Justice, murder is not broken down into first- and second-degree. Provision is made for imposition of the death penalty where the killing is premeditated, but the Air Force had decided not to seek capital punishment for Croft. He faced life imprisonment. In the alien world of the Air Force, there was no plea bargaining, because they had time to try all their defendants and room to lock them all up.
We promptly filed a motion demanding a speedy trial. Under military law, the accused, once having demanded a speedy trial, has a right to have the case dismissed if the prosecution does not bring him to trial within ninety days. We didn’t expect to be ready for trial within that time, but we had to make a record of wanting a speedy trial so that we could demand that the case be dismissed if the prosecution wasn’t ready.
I had a number of other matters in the pipeline and was preoccupied with them, even as Croft’s trial crept closer. Out of your whole caseload, you tend to address yourself not to what’s most important, but to what is coming due soonest. There was nothing unusual about my being busy trying to get one client’s watch back from the police and preparing for another client’s petit larceny trial while letting Croft’s murder case “ripen”.
I drove up and saw him alone every so often to discuss the information my student investigators were bringing in.
“I can tell you right now where we’re going to run into problems—” I told him a couple of weeks after his arrest, “—the gun.”
His features assumed a pensive look.
“Sales was shot with a thirty-eight-caliber handgun,” I said. I was looking at the brown and white linoleum tile floor, thinking it looked like the farms of Iowa viewed from 30,000 feet on a partly cloudy winter day. “People heard five shots. You say it was Sales’s own thirty-eight, and if you can prove that, you’re a free man. So you throw it in the river. His friends say Sales’s thirty-eight, a six-shot revolver, was stolen out of his car last summer while he was in the Good Times Video Arcade playing Pac-Man. Now, it just so happens that you borrowed a thirty-eight five-shot revolver from Daniels and never returned it. You say you sold it in Philadelphia, to the bouncer at an after-hours joint called the Cannery Row Club, but you don’t know the bouncer’s last name or the exact location of the club. And your friend Kathy Foster told the police she saw you with some gun a couple of weeks before the shooting. You say you sold Daniels’s gun the weekend before the shooting, for a hundred and fifty dollars. You never told Daniels you sold the gun and never gave him the money. Can you see how a jury is going to have a lot of trouble believing you? They’re going to think you used Daniels’s gun to kill Sales and then threw it into the Potomac.”
Croft pursed his thin lips and ran his fingers through his blow-dried hair. “I could get a friend from Illinois to say that I sold it to him,” he offered.
“For chrissake, Croft, don’t say things like that to me! I’m an officer of the court! I’ve got professional rules I have to work under. And one of the main ones is I can’t participate in the creation of false evidence. Do you understand what I’m telling you?”
He understood, and reverted to the story about the bouncer at the Cannery Row Club. I said I’d send an investigator to look for him.
§6-05
When Croft’s trial was suddenly just weeks away, an insanity defense grew more appealing to us. At first we had dismissed it as hopeless. Every witness who had encountered Croft on the day of the incident described him as behaving normally before and after the shooting, and he acted like someone who knew right from wrong and was in control of his actions when he disposed of the weapon and tried to construct an alibi. But as we became more familiar with the evidence and realized how shaky the self-defense case was, we decided to explore insanity. Maybe Croft was acting too normally. How could a sane person shoot someone and then go relax at a friend’s house, talking about sports and the weather?
I broached the subject delicately—insane people tend to take offense at any suggestion that they are insane—but I needn’t have worried. Croft was up for it.
“There is a complicated legal definition of insanity,” I explained, “and shrinks will come in and offer expert testimony on both sides, but it’s up to the jury to decide, and it really comes down to whether they think that you should be held responsible and punished, or that you were so fucked up at the time that it wouldn’t be fair to punish you.”
We would move for a “bifurcated trial,” in which the merits of the case (whether Croft wrongfully killed Sales) would first be tried in front of one jury, and then, if and only if that jury found him guilty, the question of his sanity would be tried in front of a second jury, which wouldn’t have heard his self-defense story and wouldn’t have reached any conclusions about his credibility.
“In other words, it’s a fallback position. You’ve got nothing to lose. You can swear it was self-defense; and then, if you’re found guilty, you can swear that you hated Sales so much it drove you nuts, and you were beside yourself when you shot him. I mean, you have to tell the truth, of course. But then, both those statements could be true. Insane people have a right to defend themselves, too.
“Now, it seems to me, from what you’ve told me, that things happened like this: You loved your wife and your two little boys. You had great plans: you were going to work in the computer field when you got out of the service. The sky was the limit. Then along comes Sales. He’s screwing your wife, and she tells you about it, and it’s public knowledge. The humiliation is almost more than you can bear. Are you with me so far?”
“Yeah, man, I’m with you.”
“Okay. You can hardly bear it, but you do bear it. But then your wife announces she’s moving with the kids back to Illinois. You start to crack. Sales has taken your kids away from you.
“You drive out to Illinois to try to convince Arlene to come back to you. You get into a wreck and bump your head. And you’ve had migraine headaches ever since. And you’re on medication for those headaches. Maybe the medication kind of spaces you out?”
“Not really.”
“Okay. You come back to D.C., and you find a burglar asleep in your house. The whole house has been trashed. You whack the guy in the head with an ax handle and hold him for the cops. The cops tell you you should have used the other end of the ax, but that’s not the kind of guy you are. All your co-workers say you wouldn’t hurt a flea. Still, it makes you nervous that your house has been burglarized, so you borrow a handgun from your friend Daniels.
“Then on November fourteenth Sales calls you up and tells you that Arlene wants a divorce. You’re out, he’s in. You don’t want to hear that, especially from him.
“So you go over to see him, and you just go off, you know? Maybe the last thing you remember is him coming at you. From then on, it’s like a dream. It’s like
it happened in a different world, or didn’t happen at all. That’s why you’re able to act so cool and collected afterwards. Get the picture?”
“Yeah, I see.” He turned his lips down and nodded his head in thoughtful affirmation. My eyes were drawn to the cotton in his ear, yellowish with the discharge of an inner infection, which he blamed on conditions in the stockade. I looked away.
“Good. What we need to do now is think of reasons why you would be likely to crack. The shrink who’s working for us—what he likes to see is deterioration, a guy falling apart: you’re brooding, you start making mistakes at work, your apartment turns into a mess. And we need a background. You ever do anything kind of crazy before? You have some kind of drug history, or history of mental illness in your family?”
“Well, my father used to get drunk, kick the door down, and beat up my mother. He died when he was forty, of cirrhosis of the liver and hardening of the arteries,” Croft began.
“… the arteries,” I scribbled. “Okay, go ahead.”
“As a juvenile, when I was twelve, I shot a close friend of mine with a twenty-two. I had told him he could have some amphetamines. He took a couple, but because he was going over to his parents’ house, he asked me to hold the rest for him. He didn’t come back, so I gave the rest of the pills to another friend. The first friend felt like I ripped him off, so he attacked me a few days later. He punched me. So I went home and got a gun. I shot him in the stomach. He didn’t die, and he testified it was an accident. I did seven months for it.” Croft told me this story with all the feeling one might put into listing one’s past addresses and phone numbers.
“I had piles of amphetamines when I was a kid,” he continued. “My mother worked for a doctor. She had grocery bags full of pills.”
How Can You Defend Those People? : The Making of a Criminal Lawyer Page 28
