“Did you use any drugs on the day you shot Sales?”
“That day I drank a half pint of brandy at about noon. I drank that much daily, at lunchtime. My friend Crockett and me would smoke four or five joints, polish off a six-pack or a pint of brandy, snort half a gram of coke, and go back to work. I didn’t have lunch with Crockett November fourteenth, but I did have a gram of coke with me that day and it was all gone by six P.M.”
I thought that was enough to give our shrink something to work with.
When, as required, we filed a notice of intention to assert the defense of insanity, that triggered the convening of a “sanity board” by the Air Force. Three military shrinks would deliver an opinion as to Croft’s sanity and report it to all parties—the defense, the prosecution, and the judge. (The reports to the prosecution and the judge would be “sanitized”—that is, only the conclusions would be reported, not the personal history on which they were based.)
Croft was put through psychiatric interviews by the shrinks, a neurological examination, laboratory tests including electroencephalogram and CAT scan, and a battery of psychological tests.
We received the board’s report four days before the trial date:
The clinical psychiatric diagnosis is antisocial personality disorder. This diagnosis is associated with repetitive and continuous antisocial behavior without apparent genuine regret or remorse to include: polydrug abuse, pattern of aggressiveness characterized by physical assaults, recklessness indicated by recurrent speeding tickets, failure to accept social norms manifested by drugs such as marijuana and cocaine and extramarital affairs.
Onset of this condition was before 15 years of age, and was manifested by fire-setting, cruelty to animals, truancy, thefts, delinquency, polydrug abuse, suspension from school, and detention in a juvenile home for assault after shooting his best friend.
The subject did not at the time of the alleged criminal conduct have a mental disease or defect…. The accused was not substantially under the influence of alcohol or other drugs at the time of the offense.
Our own shrink had come to the same conclusion. Croft was “a classic sociopath.”
What is a sociopath?
Psychiatric experts agree that sociopaths are people like Peter Croft, and that people like Peter Croft are sociopaths. (At least, they are now. They used to be “psychopaths,” but the American Psychiatric Association changed the term in 1952.)
People with “sociopathic personality disturbance, antisocial reaction” crave immediate gratification and are highly impulsive; they are aggressive, feel little or no guilt, and don’t empathize with, much less love, other people.1
Nobody knows for sure what engenders this syndrome, although one thing most sociopaths have in common, aside from being called sociopaths, is that they were neglected or rejected as children. Their parents (or the institution replacing them) responded inconsistently and arbitrarily (and often brutally) to them; rewards and punishments had nothing to do with their behavior, so a sense of right and wrong, or even cause and effect, was not instilled.
Many people who are considered sociopaths are good artists or writers, as well as charming conversationalists. I’m sure no one knows why. Gary Gilmore, whose execution in Utah got the death penalty back on track, showed talent at writing and illustration. Jack Abbott’s writing helped him win parole. My own client Roberto Lewis, with his lovely portraits and repeated impulsive crimes, seems to fit the bill.
Whatever sociopaths are, the one thing they are not, by definition, is insane, because they are not suffering from an identified “mental disease or defect.” Section 4.01 of the American Law Institute’s Model Penal Code, after propounding the definition of insanity subsequently adopted in the District of Columbia,* goes on to state:
(2) The terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.†
Of course, the concept of “mental disease or defect” is itself a matter of definition. What else could it be? It’s a definition with a history, though, and it’s been adjusted and readjusted with a view to bringing some people in and leaving some people out, and Croft, by design, was out. He might have been “crazy”; he definitely was “abnormal”; but “insane”? No way, José.
We gave up on insanity. Self-defense was the only way to go.
§6-06
Captain Arnold and I decided that we were not ready for trial. No one had been up to Philadelphia to look for the Cannery Row Club. We had not yet interviewed all the witnesses, let alone rehearsed ours. We had just obtained a long-requested item of discovery from the prosecution: Sales’s address book. It contained the names of forty-three women, all of whom we wanted to interview. Any number of them might have had husbands whom Sales had roughed up. (Evidence of prior acts of violence by Sales would be admissible on the issue of who was, in fact, the aggressor in the showdown with Croft). We had a lot to do.
We filed a motion for a continuance, which, we assumed, would be routinely granted. I had never had a trial in D.C. superior court actually begin on the first date scheduled even if I wanted it to.
On Monday, February 25, 1981, I strode into the “courtroom” at Bolling and didn’t like what I saw. The linoleum-floored, hospital-green-painted room contained barely enough furniture to set the stage for a third-rate school play. There was a raised platform along one wall for the jury, but some used office chairs, no two alike, grouped around a couple of beat-up little wooden tables, which were not even attached to the floor, were all that was provided for the lawyers. There were no pews for the audience—and no audience—just a few old bridge chairs. It was not my idea of a courtroom. Anything could happen in a place like that.
Captain Arnold and I took seats flanking Croft and looked at the prosecutors seated at their little table a few feet away. Captain Elizabeth Biscket, a stocky young woman in an ill-fitting uniform, glanced at us, turned, and whispered into the ear of her assistant, the diminutive Captain Ed Hooton, who pushed his gray plastic glasses up on his nose, stared into the distance, and rubbed his hands together. They’d be no competition, Air Force image-wise, for the lanky Captain Arnold with his Vietnam campaign ribbon and wings.
The judge burst in, pulling a black robe over his uniform as he barked, “Don’t get up!” He, at least, was a familiar type: short, scrappy, craggy-faced, gray crewcut, throws away the tuna and eats the can.
The first order of business was our motion for a continuance. I rattled off all the important work we had yet to do, noting that we had made a “good faith effort” to be ready. The prosecutors stated that they did not oppose a continuance.
“The motion is denied,” the judge said.
“Excuse me, Your Honor,” I said. “I think you said ‘denied.’ Did you mean to say ‘granted’?”
“The motion is denied,” the judge repeated. “Are there any other motions?”
“Your Honor,” I said, forcing my words through a suddenly constricted throat, “we have other motions, but we’re not prepared to go to trial. This is a very complex case, as well as a very serious one. It involves about forty witnesses and scientific evidence. I’ve been in trial until a couple of weeks ago, and we didn’t have investigators available until recently.”
“The motion is denied. The defendant has a right to a speedy trial.”
“Exactly, Your Honor. It’s the defendant’s right, and he wants to waive it. He’s incarcerated, Your Honor, so a continuance doesn’t put the community at risk.”
“The motion is denied.”
During the time it took to take a deep breath, I decided to go ahead and say, “Very well, Your Honor. I don’t want to be argumentative, but I will state, on the record, that if we go forward at this time, I will not be rendering effective assistance of counsel; I will not be a competent defense counsel, and Mr. Croft’s Sixth Amendment right to counsel will be violated.”
“Do you have any other motions, counsel?”
> Tears welled up in my eyes. “Now you’ve really done it, Kunen,” I thought. Larry Arnold had told me that, in the unlikely event that the judge denied our motion, I could force a continuance by simply leaving, because Croft had a right not to proceed without civilian counsel, and the military judge did not have the power to hold me in contempt. An awareness bomb went off in my stomach: Larry Arnold was wrong. To leave would not only be a humiliation verging on dishonor, it would be absurd; no game in the world includes within it the tactic of refusing to play.
There was nothing to do but get on with it. We made a motion to be provided funds for the employment of an investigator. Denied. We moved for severance of the unregistered weapon charge from the murder charge, since the possession of the unregistered shotgun had nothing to do with the murder and might be prejudicial—the jury might think that since Croft was carrying the shotgun, he was the sort of guy who would commit the murder. Denied.
The case was adjourned for the day so that the judge could finish off some other matters.
Croft was given a moment to talk to me before he was hauled back to the stockade. He looked sick. “I’m kind of worried, man—what you said about not being ready.”
“Oh, don’t pay any attention to that,” I said. “That was just talk, to try to get the continuance. It’s always nice to have more time, but we’re ready, don’t worry.”
“Okay,” he said. He looked worried.
That evening I went with my student investigator Amy Strader to the modest row house on a neat, tree-lined street in northwest Washington that was the home of Joan Davis, the decedent Sales’s fiancée.
A pallid-faced young woman with a short henna-red punk rock hairdo opened the door. I noted that she was braless under her Led Zeppelin T-shirt. We explained exactly who we were (so that she wouldn’t be able to disavow anything she said later on the basis that she had somehow been tricked) and said that all we wanted was to find out the truth about what happened. We weren’t lying. We did want to hear the truth, outside the courtroom, the better to manage what would be heard inside the courtroom.
She silently beckoned us in with a wave of her hundred-millimeter slim cigarette.
We were uninvited, unexpected, but not entirely unwelcome. People who have been victimized by crime have a desire to talk about it and to have attention paid them. Frequently they have been alienated by bureaucratic, insensitive treatment from the police and prosecution. Only the defense seems to care.
Joan Davis invited us to join her at the dining table in her L-shaped living room, where she was eating Popeye’s Fried Chicken in front of a blasting color TV.
I let Strader do the talking. A raw-boned twenty-year-old with a sort of Beatles’ haircut, Strader bore a striking resemblance, from certain angles, to a fourteen-year-old boy. As a result, her particular cross to bear in life was that people tended not to take her seriously. This made her a devastatingly effective investigator. She seemed so sweet and innocent that people trusted her immediately. She didn’t like to betray people’s trust, but she had developed a way of interpreting precisely what she had said and not said so that she could see that, really, she had not misled anybody. Most of our interns picked that up quickly, from the lawyers.
(The defense has to be resourceful in its investigative techniques. It can’t scare witnesses into cooperating, with badges and guns. Nor can it buy their help with a thirty-dollar fee per office visit, as U.S. attorneys can. Indigent defendants are allowed court funds for witnesses only when they are subpoenaed to a court proceeding.)
I grew restless as Strader engaged in vapid small talk with Joan Davis. Even I couldn’t tell she was working. But when the dust settled, Davis had said that Croft’s wife Arlene had once dropped in on Sales when Davis was with him. After shooing Arlene away, Sales told Davis that Arlene was in his Toys-for-Tots volunteer group. (Sales, we learned, was in no such group. Dishonest. Sleazy. Worth knowing by the jury.) And Joan Davis had seen a handgun in Sales’s glove compartment after the night when his .38 was supposedly stolen from his car parked outside the Good Times Video Arcade.
§6-07
The court reconvened at nine o’clock sharp the next morning. That’s considerably earlier than I was used to getting to work in the civilian courts. I was able to arrive on time by broadly construing red lights as the equivalent of stop signs, a transgression that seemed inconsequential to me at the time. The harshness of the hour was ameliorated by my favorite aspect of military law: coffee cups were allowed in the courtroom, and we’d recess frequently to refill them. I did the whole trial caffeinated to the sky.
We made a motion to suppress all physical evidence (notably the shotgun seized from Croft at his arrest), as well as any statements allegedly made by Croft, since, we argued, there had been no probable cause to arrest him; therefore his arrest was illegal; and the evidence and statements must be suppressed as the “fruit of an illegal arrest.” That Croft fit the general description of a man seen fleeing the scene; that Sales had been involved in an affair with Croft’s wife; and that Sales had once said that if anything happened to him, Croft would be responsible, we suggested, were grounds to suspect Croft, but probable cause to arrest him? Hardly.
The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause …” The Supreme Court has held that warrants are not constitutionally required for felony arrests in public places,1 but “probable cause” is always required. Volumes have been written on the question of what “probable cause” means. The U.S. Court of Appeals, D.C. Circuit, explained it this way: “… a peace officer has probable cause to arrest ‘when he has reasonable grounds, in light of the circumstances of the moment as viewed through his eyes, for belief that a felony has been committed and that the person before him committed it.’”2* Whatever probable cause means, reasonable minds can differ about whether a particular police officer making a particular arrest had it.
The prosecution argued that there was probable cause, but that, anyway, Croft had given permission to the arresting officer to go into the trunk and even handed him the keys, so that the seizure of the shotgun did not result from a “search” at all.
We insisted that Croft did not consent to the search—that it was impossible for him to consent freely to anything, lying on the ground surrounded by policemen.
The judge ruled that the arrest was based on probable cause and was, therefore, legal, so the shotgun would be allowed in evidence, and that statements made by Croft were not the product of an illegal arrest.
Croft’s statements to Detective Luce at the homicide office had to be suppressed anyway, we argued, because they were obtained in violation of Croft’s Miranda rights. When Croft filled out a rights card with Detective Miller indicating that he did not want to answer questions, there should have been no further attempts to question him. The police can’t just wait a few minutes and read a person his rights again to see if he’ll change his mind.
The Supreme Court has held, however, that there are certain circumstances in which a suspect can be questioned after he has asserted his right to remain silent. In Michigan v. Mosely,3 the defendant told one police officer that he did not want to answer questions about a robbery for which he had just been arrested. Two hours later, a different officer read him his rights again and questioned him about a homicide, which had not been the subject of the first interrogation. The defendant waived his rights and confessed. The Supreme Court held that the confession was admissible because of its unrelatedness—two hours later, different crime—to the interrogation in regard to which the defendant had already asserted his rights.
Some knowledge of Michigan v. Mosely had evidently trickled down to Detective Luce. The notation “military arrest for possession of shotgun” had been scrawled across the rights card Croft made out with Miller at 8:35 P.M. in an apparent attempt to relat
e that card to a crime other than the murder. Luce testified at a pretrial hearing that he thought the first card pertained only to the shotgun possession charge, and that he thought Croft wanted to remain silent only about that misdemeanor, but was willing to answer questions about the homicide.
Even if that bit of creativity had not stunk up the courtroom, Luce would still have had a problem because, according to his own pretrial testimony, he started questioning Croft about the homicide, and obtained an admission, before he reread him his Miranda rights, pausing only to ask, “Do you understand your rights?,” which is only one of the Four Questions. Luce testified that when Croft asked him to get his attorney’s business card, he did not think Croft wanted to contact the attorney. “I thought he just wanted the card, that’s all.” The prosecution did not oppose our motion to suppress the statements to Luce.
We argued that Croft’s subsequent statement to his commanding officer—“I didn’t kill him. He pulled a gun. It was self-defense”—should also be suppressed because it would never have been made if not for the first, illegally obtained statement: Croft thought the cat was out of the bag. He thought he had no reason to remain silent anymore. Thus, the second statement should be suppressed as a product of the first one. Not only that, but, under military regulations, his commanding officer should not have had Croft brought to him without his lawyer present, if the C.O. knew that Croft had a lawyer; and the C.O. had heard from the military police that Croft did have a lawyer (me).
You could tell by the judge’s furrowed brow that he knew he had a problem here. He obviously had to suppress the statements to Luce, but that meant the statement to the C.O. should be suppressed, too, and then the defendant would go free. What to do?
The judge decided to think about it for a while and adjourned for the day, after denying our renewed motion for a continuance. The next morning he announced that he would suppress the statements to Luce, prohibiting the prosecution from using them in its case, as they had been obtained in violation of Croft’s Miranda rights. Those statements were not “coerced,” however, the judge ruled, and therefore not inherently unreliable, so the prosecution could use them to “impeach” Croft—attack his credibility*—if on direct examination he testified to something clearly inconsistent with his prior statements. That is, the jury would never hear the damning “I put two bullets in him after he was on the floor” unless Croft offered an inconsistent account of the shooting, in which case the prosecution could confront him with the portion of his earlier statement that he had contradicted. As the judge put it, the suppression of illegally obtained statements is not “a license to lie.” If we wanted to be sure the admission to Luce stayed out of evidence, we could simply not have Croft testify.
How Can You Defend Those People? : The Making of a Criminal Lawyer Page 29
