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

by James S. Kunen

  Kathy Foster, Croft’s barmaid friend, could have been the prosecution’s star witness. The jurors, heavy-lidded with crime scene search stupor, sat up with a start when jeans-clad Kathy strode into the room. She gave her long dark hair a brave toss, but you could tell by the way she clutched her purse that she was scared. Here was the first witness with a stake in the action.

  The prosecution blew it. Captain Hooton tried, at embarrassing length, to get Ms. Foster to admit a sexual relationship with Croft—“He used to come by and see me sometimes” was as far as she would go—as though the jury would hold it against Croft that he slept with somebody after his wife had left him, rather than hold it against Hooton that he was badgering the young lady to talk about stuff that was nobody’s damn business. (We, of course, would argue that Croft’s having a girlfriend showed he was well-adjusted and not likely to murder Sales.) If Hooton insisted on going into it, it would have been worthwhile for him to bring out that Foster herself was a married woman (her husband was overseas), but either this fact had escaped his attention or he failed to appreciate its potential for shifting “the equities” in a love-triangle murder case.

  Foster, turning away from the prosecutor and speaking over her shoulder to the judge in a voice hoarse with resentment, admitted that Croft had asked her to lie to the police for him. She was less angry at Croft for that than at the police for lying to her about having to come down and answer questions, and at the prosecutor for making her recount it all in public. She couldn’t see the fairness in it.

  Everybody always wanted something out of Foster. What I wanted was for her to remember that when she saw Croft carrying a pistol, it was right after his house had been burglarized. Captain Arnold and I reminded her of that when we visited her at her home, and investigator Bert Meyers reminded her when he drove her to court to testify.

  Captain Hooton got Foster to admit, reluctantly, that she had seen Croft carrying a pistol in October; but she added that his house had been burglarized just before that, and that he needed the weapon for self-defense.

  Croft’s commanding officer, Colonel Brand, repeated Croft’s blurtedout declaration: “I didn’t kill him. He pulled a gun. It was self-defense.” We could live with that.

  The prosecution next called Dave Johnson, Sales’s best friend. The bailiff went out to the hallway to get him, but no one came in. People in the courtroom started looking at each other. The bailiff returned and said that Johnson was not there. “He was here earlier,” Captain Hooton stammered, enduring a moment that was easily worth five bucks from the Reader’s Digest. Captain Biscket decided to put Johnson over until after lunch and meanwhile call Dr. Richard Korzeniewski, deputy medical examiner for the District of Columbia, to describe the autopsy on Sales.

  An autopsy is the ultimate examination of a witness, everything laid bare. Dr. Korzeniewski was prepared to put on a slide show of the autopsy, but we objected that the sole purpose of showing the slides was to appeal to the jury’s emotions. All the pictures prove to a layman is that when you cut into a human body, it looks just like a steak. We insisted that Dr. Korzeniewski could explain everything perfectly well to the jury using words alone. The judge agreed with us. The photos were kept out, and the shooting of Sales remained an abstract proposition, a theoretical puzzle. The jury would see only the autopsy diagrams, which showed the wounds marked as dots on a standard, universal male figure, which looked more like a shop-window mannequin than a slain human being. The penciled-in arrows, denoting bullet trajectories, could as well have marked the direction of the flow of water through plumbing. The diagrams lent themselves to cool, rational analysis, which is what defense attorneys strive for.

  As Dr. Korzeniewski testified, the jurors shifted their weight forward, concentrating, expectant. Here, at last, might be something Perry Masonesque—entertaining and revelatory. The prosecution, having billed Korzeniewski’s testimony in their opening as “a revealing analysis of events,” hoped to ride him to victory—an expert, a doctor, someone not likely to be fooled, someone who “ought to know” and ought to be believed. It was false billing, as the jury must have realized. What Korzeniewski had to say was this: The man died from multiple gunshot wounds. There were four entry wounds and two exit wounds. There was no gunpowder residue or singeing of the skin, so the shots were most likely fired from more than eighteen inches away. Arbitrarily numbering the wounds 1 through 4—he had no way of determining in which order the shots were fired—Korzeniewski said shot number 1 entered above the left lip, traveling from the victim’s left to his right, front to back, and sharply upward. It penetrated the brain and would have killed Sales even if no other wounds had been inflicted.

  Shot number 2 entered the left shoulder and passed through the armpit, traveling left to right and slightly upward. It lacerated the trachea and subclavian artery and dropped into the chest cavity. It caused massive bleeding and, it, too, would have been fatal by itself.

  Shot number 3 was an “in-and-out” wound, causing no serious harm. The bullet entered on the left side of the chest, traveled left to right and sharply upward, tunneling through the musculature without penetrating the chest cavity, and exited the left back. The exit wound was peculiar, somewhat oval in shape and ending in a four-centimeter linear abrasion; that the bullet had trouble getting out suggested that the decedent’s back was against a hard surface, like a wall or floor, when this wound was inflicted.

  Shot number 4 entered the side of the left upper arm, traveled left to right, front to back, and slightly upward, passing through muscle and exiting out the side of the left shoulder—a minor flesh wound.

  “Do the wounds show that the decedent had his left arm stretched out to the side?” Captain Biscket asked, mentioning that particular position because it would mean that Sales had not been lunging at Croft. I didn’t object to the leading question because I didn’t want to appear frightened of the answer, which I knew from interviewing Dr. Korzeniewski was nothing to be afraid of. “It could have been, it’s consistent,” Dr. Korzeniewski replied.

  Larry Arnold cross-examined. “Dr. Korzeniewski, you testified that the wounds were consistent with the decedent’s having had his left arm stretched out to the left?”

  “Yes.”

  “That just means it’s possible, doesn’t it?”

  “Yes. I can’t determine what particular position his arm was in.”

  It was clear that Dr. Korzeniewski was not purporting to describe Sales’s position when he was shot or to offer any “revealing analysis” of the events leading to his death. The prosecution had promised something it could not deliver.

  §6-10

  Sales’s buddy Johnson finally showed up twenty minutes after court reconvened in the afternoon—twenty minutes during which the court sat waiting for him. He lumbered down the aisle, unshaven, in dirty blue jeans and a leather vest, and sank down in the witness chair. When the judge upbraided him for being late, Johnson explained that he had been in a traffic accident.

  Johnson testified that Sales’s relationship to Arlene Croft was that of “mutual volunteers” in a Toys-for-Tots group; Sales’s only sexual relationship for several months preceding his death was with his fiancée, Joan Davis.

  Why the prosecution would put on testimony that Sales and Mrs. Croft were not having an affair was a mystery to me, since the affair was supposed to be Croft’s motive for murdering Sales.

  Mrs. Croft could have clarified matters, but the prosecution made no attempt to put her on the witness stand. We wouldn’t have let them, anyway. In common law, spouses were “incompetent” witnesses—they could not testify for or against each other in criminal cases under any circumstances. Under modern rules, in the majority of American jurisdictions, a spouse is competent to testify, but the defendant can assert a privilege to prevent his spouse from testifying against him. We talked to Mrs. Croft, by telephone, about testifying for Peter—she’d often seen Sales carrying a gun—but her loyalties were hopelessly divided. “I’m on the fence
,” she said. “I stand to lose two men out of this deal.”

  Johnson maintained that he, himself, was not aware that Arlene Croft was married. He said that he had seen bruises on “Mrs. Croft’s” face on two occasions, but before he could answer the question “What do you think caused them?” (beatings by Croft) our objection that he was not a medical expert was sustained. Finally, Johnson testified that Sales had owned a .38 Ruger Security Six, but it was stolen from his car sometime during the past summer; and, during the time Johnson knew him, Sales never carried a weapon into work.

  Johnson could not have been more beautifully set up for the impeachment of his credibility. He was not just ripe to be plucked. He was overripe, and fell all by himself.

  “Are you the same David Johnson who was convicted of embezzlement in 1976?” I began. The answer was yes.

  (You are allowed to bring out a witness’s convictions for felonies over the preceding ten years to aid the jury in evaluating his credibility. It is absolutely elementary that the prosecution should have asked Johnson about his convictions on direct examination, so it wouldn’t appear that they were trying to hide anything.)

  “Didn’t you just testify under oath that you did not know that Peter Croft and Arlene Croft were married?” I continued.

  “That’s right,” he said.

  “Do you remember giving sworn testimony at an Article 32 hearing* in December?”

  “Yes.”

  “Do you remember being asked this question and giving this answer: ‘Q: How did Mrs. Croft meet Irwin? A: They started talking about each other’s problems. Irwin tried to help Arlene get back to her husband.’”

  “Right. I meant to say I didn’t know whether they were still married or broke up.”

  “Didn’t you just testify that the relationship of Irwin Sales to Mrs. Croft was one of ‘mutual volunteers’?”

  “Yes.”

  “Didn’t you state under oath at the Article 32 hearing, ‘I do know they were having an affair’?”

  “I guess so.”

  “You guess so?”

  “I did.”

  Johnson was not squirming. He was sitting there, sluglike, unphased by the fact that he was being shown up as a liar.

  “Didn’t you just testify that Sales’s only female companion for several months before his death was his fiancée Joan Davis?”

  “Yes.”

  “Do you remember being asked this question at the Article 32 and giving this answer: ‘Q: Was Irwin involved with women other than Arlene Croft and Joan Davis? A: Yes. One was named Evelyn McDonald. There was a girl named Laura. Another was named Dorothy. Another was named Lois. There were a few others.’”

  “If that’s what it says there …”

  “You swore to that?”

  “Yes.”

  After that, I had Johnson say that Sales carried a gun in his car and once pulled it on Croft. Then I let him go, with thanks.

  Johnson had stained both the prosecutors and the decedent with his broad brush. The prosecutors were passing out of slipshod and into sleazy, not bothering to head off Johnson’s lies before presenting him to the court. (The government’s client is Justice, remember.) Sales, meanwhile, was becoming familiar to the jury by the company he kept. What kind of guy would have a goon like Johnson for a best friend? The same kind of guy who would two-time his fiancée with a married woman and carry a .38 in his glove compartment. And use it.

  Joan Davis, Sales’s fiancée, followed Johnson to the stand. She was dressed in a mournful blue pantsuit, but she hadn’t been able to resist decorating her face with mascara, eye shadow, eye liner, lip gloss, and that brown “blush” stuff that gives you cheekbones. It was a public appearance, and she was eye-catching. Ms. Davis could only help us. If she seemed like a low-life character, then Sales probably was, too. If she seemed like a nice person, then Sales was a son of a bitch for cheating on her with Arlene Croft.

  Davis testified that she had never seen Sales carry a gun on his person, but she did see one in his glove compartment, but that was stolen outside the Good Times Video Arcade; but she did see a gun in the glove compartment after the Good Times theft, but she couldn’t precisely describe the first gun, the second gun, or the difference between them. Both the prosecution and the defense had her say that Sales told her he was “afraid” because Croft was following him around (although Sales didn’t tell her why). Davis was hostile and argumentative, and despite her sympathetic position, when she was through testifying, there wasn’t a wet eye in the room.

  The prosecution’s next witness was Rawley Daniels, a big, bearded man in his thirties, with a good ol’ boy’s country accent. Daniels was a loyal friend of Croft’s. That in itself, I thought, would appeal to the jurors. It appealed to me. There is something moving, in a phone-company-ad way, about the relationship of military buddies.

  Daniels came across as the sweetest, gentlest guy you’d ever want to meet. He was extremely upset about being called as a prosecution witness and had shown up at the defense office the night before he was to testify, seeking some combination of reassurance and absolution. “I don’t believe Peter could’ve possibly killed a man,” he said.

  I, somewhat disingenuously, assured him that all the defense wanted was for the truth to come out, and we were sure he would tell the truth, and it didn’t make any difference whether he was called a “prosecution witness” or a “defense witness.” Every witness is everybody’s witness. I went over his testimony with him, pointing out the parts that were most helpful to Croft—like the fact that Croft borrowed Daniels’s revolver right after his house was burglarized. (Post hoc, ergo propter hoc [after this, therefore because of this] is a fallacious but ever-popular principle of logic.)

  My homily on the majesty of the adversary system turned out to be true, regarding Daniels. During his testimony it was hard to remember that the defense case had not yet begun.

  On direct examination Captain Biscket asked whether he and Croft socialized together.

  “When I saw the accused on a social basis, we would work on cars, or his wife and children and my family would all get together on Sunday and have dinner sometimes. We didn’t go out ‘jukin’,’ if that’s what you mean.” It was impossible to listen to this without thinking of a Norman Rockwell illustration.

  Getting down to it, Biscket asked how many weapons Daniels owned. He said he owned three, but only two were in his possession. “I have one Hawkins, black powder, a replica; and I have a 1945 Craig nine-millimeter; and then I have a thirty-eight revolver. I don’t have any idea where the thirty-eight revolver is. It was a very cheap weapon, cheaply constructed.” Daniels clearly found it hard to believe that such a cheap weapon could be at the bottom of all this high-priced trouble. “It was manufactured by RG Industries; I think they are out of Florida. It is a thirty-eight special, plastic handle, with a snub nose. Five rounds would go in the cylinder. I think most of them hold six rounds, don’t they?”

  And what became of that .38, the prosecutor wanted to know. Everybody wanted to know. It was a question Croft would have to answer. But he could listen to Daniels’s answer first.

  “I loaned that thirty-eight to Specialist Croft, I guess it must have been around the middle of October. We were to go out target practicing. Or we had made plans to, but I got sick, so I wasn’t going to get to go. So I loaned him the weapon.”

  On cross-examination I asked Daniels how he remembered that the loan of the thirty-eight to Croft was in mid-October.

  Ah, yes. “It seems like shortly before that, he had had some type of a break-in in his home,” he recalled. Had the prosecutors been on their toes, they could have confronted Daniels with his statement at the pretrial Article 32 hearing: “I really don’t remember whether I gave him the pistol after the break-in or before.” But by the time of the trial, he honestly “recalled” that the loan followed the break-in, either because it did or because he wanted it to. Daniels didn’t stop there, unfortunately. “There was no reference t
o the break-in when I loaned him the weapon,” he continued. “It was just we wanted to go target practicing.”

  As to what had become of the weapon, Daniels testified that shortly after the loan, sometime in October, Croft told him that someone had offered him $150 for the .38. “I told him he should’ve took it. I don’t think the weapon cost me more than thirty-five dollars originally, but a lot of people up here don’t know the value of weapons.”

  Redirect examination is normally limited to explaining, rebutting, or qualifying new facts brought out in cross-examination,1 but the judge, in his discretion, let Captain Biscket stand up again and ask Daniels some important questions she had simply forgotten to ask on direct. It turned out that Daniels had caught a glimpse of his pistol lying in a drawer in Croft’s desk at work one day in late October.

  Biscket also wanted to hammer home the fact that Daniels never got any $150 from Croft, but she got burned for her trouble.

  “Did you ever receive the one hundred fifty dollars from this ‘sale’?” she demanded.

  “No, but I didn’t worry about it,” he replied. “I figured Croft needed the money more than I did, and I knew he’d pay me as soon as he could—that’s the kind of man he is.”

  We couldn’t have asked for a better parting thought as the court adjourned for the weekend.

  * * *

  The government’s final witness, Philip Strickland, a police department firearms expert, took the stand first thing Monday morning. Strickland obviously loved guns, which kind of made you wonder about him, yet he was the sort of sturdy, reliable fellow you hope to find at a gas station when you are lost.

  The prosecution had saved him for last, and they kept him on the stand a long time, just as though he had been able to determine whose pistol had killed Sales. But all he said was this: he had examined prosecution exhibits 5, 6, 9, 10, and 11 (the five recovered slugs) and concluded that each was fired from a .38 special or a .357 Magnum revolver having a barrel with eight grooves and eight lands (the raised areas between the grooves) with a right-hand twist. A rifled gun barrel, he explained, has spiraling grooves cut into it, which leave marks on the slug as it spins out of the barrel. These slugs’ marks showed that the barrel had eight grooves and eight lands spiraling to the right.