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

by James S. Kunen

  Strickland said that weapons with those “class characteristics” were manufactured by Ruger (like Sales’s “stolen” gun), RG Industries (like the gun Croft borrowed from Daniels), Rohm, Charter Arms, Dickson, Burgo, Liberty Arms, and Omega.

  On cross-examination, Strickland readily conceded that there might be other manufacturers of weapons with these class characteristics, that each manufacturer he had named made more than one model with these characteristics, and that each model had a production run of a large number of individual weapons, so that he could not set any limit to the number of pistols in the world which could have fired the recovered slugs. Because the slugs were too badly bashed up to determine the “individual characteristics” of the firing weapon—the unique irregularities that form its “fingerprint”—he could not even say whether they all were fired from the same gun.*

  Having gone over the evidence with Strickland at his office before the trial, I wasn’t surprised that he hadn’t solved the mystery of the gun, but the jury seemed to be. They looked disappointed. To them, Strickland’s testimony looked like a prosecution failure. Therefore it was a prosecution failure. Instead of saving him for last, when the jury expects to hear something important, they should have explained in their opening that the ballistics evidence was inconclusive and slipped Strickland in early. The only reason to put him on at all was to show the jury that the prosecution had been thorough, leaving no stone unturned, and to keep the defense from arguing, as we would have, “Why wasn’t a ballistics test done? What is the government trying to hide?”

  On that inconclusive note, the government rested its case.

  §6-11

  It was our turn.

  The defense case began inauspiciously. Richard Casey, an FBI agent, had left the defense investigator who interviewed him with the impression that Casey’s analysis of the nitric acid swabs taken from the right hand of the decedent had turned up sufficient traces of antimony and barium (gunpowder residue) to prove that Sales had his hand on a gun as it discharged, a conclusion that would support Croft’s story that the first shot went off as he grabbed the gun in Sales’s hand. On the stand, after testifying that the swabs from Croft’s hands were negative (not surprisingly, since he had taken a shower before his arrest), Casey said merely that the test results on the decedent’s hand were consistent with Sales’s having had his hand on a gun, but could also be consistent with his standing in the same room with a discharging gun, perhaps as far as four feet away. I never should have put Casey on without interviewing him myself. We dropped him as quietly as we could and tiptoed on to our next witness.

  Staff Sergeant Stan Olson, who shared duty with Sales on November 14, testified that Sales arrived at 2:30, carrying a gym bag with something in it. Olson left to get some food at 2:40, and when he returned at 3:10 he found a crowd staring at a body. Asked about Sales’s reputation for violence, Olson said, “I think”—Objection! Opinion! the prosecutors failed to say—“it was crucial to Sales’s ego to ‘conquer’ women”—Objection! Irrelevant! the prosecutors failed to say—“because he would say things like, ‘I slept with five different women this week.’”

  We asked the manager of the Good Times Video Arcade, outside of which, Davis and Johnson said, Sales’s .38 was stolen in the summer of 1980, just one question: Did the Good Times Video Arcade exist in the summer of 1980? Answer: “Good Times did not open until 1981.”

  Ruth Cunningham, a sixty-year-old black woman who spoke like a librarian or schoolteacher but was in fact a cleaning lady in the building where Croft worked, testified that she had indeed answered a phone call at work that afternoon and been asked to put Croft on the line. We would argue that this call was from Sales.

  Captain Hooton threw her a high, hard one on cross-examination: “You can’t really be sure, can you, that the phone call you remember took place on November fourteenth and not some other day?”

  “Actually,” she said, “I am absolutely certain that it was on November fourteenth. November fourteenth stands out clearly in my memory because it was that evening that I saw on television that there had been a shooting, and that the authorities were holding Peter Croft, and I couldn’t believe it because I knew he could never do such a thing.”

  We followed Mrs. Cunningham with a parade of character witnesses to acquaint the jury with the real Peter Croft, Croft the peaceful, Croft the honest, before Croft the murder defendant took the stand. Then Mrs. Carolyn Ianini, ill at ease in a murder court-martial, but glad to be doing her civic duty, gave the jury one last review of the crucial instant that had flashed in and out of existence three months before, while she waited in a car for her husband: “BANG—BANG—BANGBANGBANG.”

  The shots echoed overnight.

  §6-12

  When court reconvened for the fourth day of testimony, Croft’s coworker Airman First Class Jess Gilmour, a jive-talking street dude who somehow kept every joint in his body moving even as he sat testifying, said that Croft “was a chump. He wouldn’t fight. He’d talk his way out of a situation, or step aside.” Sales, on the other hand, “would sell a lot of wolf-tickets,” Gilmour said, explaining that meant he would “talk loud and stern.” “Sales had a fight at the craft shop once,” he said, “and I’ve been told”—Ding! Ding! Ding! HEARSAY! But Biscket and Hooton just sat there—“he pulled a pistol on somebody before, between six months and a year and a half ago.”

  We followed with Staff Sergeant J. B. Jones, who told about Sales’s asking him to point out Croft; and Sales’s slimy remark about “what happens if you don’t take care of your homework”; and Sales’s boasts that he kept his “piece” on him.

  Then Technical Sergeant Yates hesitantly repeated his observation that Sales “used women.” By hemming and hawing and expressing reluctance to quote crude language in the courtroom, Yates greatly increased the impact of Sales’s immortal line about Mrs. Croft, when he finally said, “Sales said, ‘She was the best piece of ass I ever had.’”

  This statement was not hearsay. Hearsay is an out-of-court statement offered as the equivalent of testimony, to prove a fact asserted in the statement. It is inadmissible because the maker of the statement was not under oath and is not subject to cross-examination. Here it didn’t matter whether it was true that Mrs. Croft was “the best piece of ass” Sales ever had, so it didn’t matter that Sales was not under oath when he said it or that he was unavailable for cross-examination. What mattered was that Sales said it. Yates was swearing to that in court and could be cross-examined on the point. The fact that Sales uttered those words tended to prove that Sales was involved with Arlene Croft, and thus had a reason to fear Peter Croft, and thus had a reason to be carrying a gun. Our sub rosa reason for putting the statement in was simpler: it showed that Sales was a miserable scumbag who deserved to die.

  Defense investigator Amy Strader, looking more childlike than ever in a tweed sports coat, white shirt, and necktie, took the stand to testify that she had taken pictures of the scene of the shooting. (She had taken pictures of the scene so that she could testify. In my trial notes I had written, “Have Strader testify about something.” How could she possibly be associated with a guilty person?) The pictures themselves, gorgeous eight-by-ten color glossies, besides lending pizzazz to our case, actually showed a couple of very important things: the sign on the building door warning all entrants that they were being monitored by closed-circuit TV; and the rear of Sales’s desk, which had six shelves beautifully designed for concealing a pistol. Dark and deep, they cried out to have a pistol put in them. It was difficult to look at that picture without seeing a pistol lying on one of those shelves.

  Then came that moment toward which we’d been working, that moment toward which we had been thrust, for three months. It was the sort of moment when everything seems sharper, more distinct, less real, the sort of moment when you feel more intensely than ever that your life is a story with a plot and a resolution, the sort of moment that is known as the Moment of Truth.

 
“The defense calls as its final witness Peter Croft.”

  Of course, this was really just the epilogue to Peter Croft’s Moment of Truth, which had occurred on November 14. He had come through that one on top, one way or another. His testimony at this moment was my Moment, and perhaps not that, either, but at least a denouement in a drama in which I had cast myself in the lead role, not only in my mind but in the courtroom. I had tried to shift the focus from Croft to me. The question for the jury, I hoped, had become “Does this defense attorney win?” And the jury’s answer would be “He has to. How could he not?”

  We were reluctant to have Croft testify, since the prosecution had done such a poor job of carrying its burden of proving beyond a reasonable doubt that the shooting was not self-defense. There seemed little to gain from putting the real Croft on display after our witnesses had painted a picture of such a fine character. And he might say something that contradicted his statement to Detective Luce. If he did that, the prosecution would be able to “impeach” him with that part of the earlier statement which he had contradicted. But we figured the jury wanted to hear Croft and would draw negative inferences if he didn’t testify, especially because the judge would instruct them not to. Anyway, we really had to put him on now because in my opening statement I had said that the jury would hear his side of the story.

  (It is generally considered unwise for the defense to outline its case with much specificity in its opening statement, for just this reason—you paint yourself into a corner, losing your ability to shape your response to the case the prosecution puts on.)

  Now we would find out whether my preparation of Croft the night before had been too little, too late. I had left that task to the end because I wanted Croft to hear what all the other witnesses said, so that his memory would be refreshed and his testimony would be more likely to comport with, and appear corroborated by, the testimony of the others.

  I had had my hands full that last night with Gilmour, Jones, and Yates. Captain Arnold actually prepped them, but I acted as host, expressing all kinds of gratitude for their patience and cooperation while they waited their turns with him in the military defense counsel’s office. I felt it was crucial to keep them happy and on our side. For some reason, I also spent a lot of time chatting up Croft’s guards, who were on overtime, waiting for us to finish so they could return him to the stockade. Even unimportant dealings with people present have a way of taking precedence over dealing with “abstract” concerns, including anything, however important, which lies in the future, however near. Maybe I preferred these tasks to sitting down, finally, with Croft.

  When I’d run out of other things to do, I invited Croft into an empty office and shut the door behind us.

  We went over the day of the shooting minute by minute. I would remind Croft what he had said to Detective Luce, and to me at our first interview, and what others had said at the trial. Then he would repeat what he’d heard, and I would write down what he said. It would have been more efficient, eliminating the middleman, simply to write out his testimony and hand it to him, but that would have been unethical.

  It wasn’t long before we hit a major stumbling block: What exactly did Sales say to him on the telephone?

  “He said that Arlene wanted a divorce and he wanted me to come over and talk to him.”

  “Croft, that doesn’t make any sense! If he asked you to come see him, why would he pull a gun and say, ‘I told you if you brought your ass around here again I would blow your head off’? You must be remembering it wrong.”

  He sat there, dumbly searching his memory.

  “Could this be what happened?” I asked. “Sales called you up and said Arlene wanted a divorce. Period. You just said ‘Oh’ or ‘I see’ and hung up the phone. Then you decided to go talk to him at his work.”

  Croft said, “Now that you mention it, I think that is the way it went down.” We made steady, if arduous, progress until I asked, “What were you doing from two-thirty P.M. to three P.M. on November fourteenth?”

  Croft sat staring at the floor like a recalcitrant schoolboy in the principal’s office.

  “What were you doing?” I repeated.

  Croft looked up, stared blankly into the distance beyond me, and shrugged his shoulders.

  “For chrissake, Croft! I told you to think about this!” My pen narrowly missed him as it bounced off the desk.

  “Some days I’d wash my car. Maybe I was washing my car?”

  “Oh, Jesus! Give me a break!” I said. “You weren’t washing your car.”

  Croft looked sorry.

  “Look. Isn’t this what happened? You tell me. Didn’t you leave work and go for a long, solitary walk, a walk somewhere nobody would have seen you? You were brooding. Sales had told you he was in and you were out. You were hurt, sad, angry. You walked along, staring at the ground in front of you, thinking. Then you decided you were going to talk to Sales. Try to remember. Is that what happened?”

  “Yeah. That’s what happened.”

  “What? What happened? You tell me.”

  “I went for a walk by myself for about half an hour. Then I drove over to see him.”

  I wrote that down. “Where’d you park?”

  “Behind the building.”

  “Good. See, if you were planning to shoot him you would have parked near the door, to make a quick getaway.”

  The rest of what happened we knew from his statement to Detective Luce. I wrote it all down. Then I wrote out nonleading questions framed to elicit the story. Then I asked him the questions and drilled him on the answers. Then Captain Arnold came in and, playing the role of the prosecutor, cross-examined him. We went through it all several times until, at 1:30 A.M., I handed Croft a copy of the written questions and answers and suggested he read himself to sleep with them.

  §6-13

  Croft’s chair grudgingly harumphed back, its legs scoring the linoleum. He swore to tell the truth, the whole truth, and nothing but the truth, so help him God, and took the stand. He was completely calm. He answered my questions coolly—a little too coolly, in fact. He didn’t have the proper affect. He should have been a little upset that his wife was gone, maybe a little sorry that a man was dead, certainly a little nervous that he was facing life imprisonment. He was none of these, nor was he, on the other hand, cocky or bitter. He was nothing. (The one adjective that perhaps fit him was “rehearsed,” as one observer put it. Maybe we had fallen into the trap of overpreparation. On the other hand, we didn’t want any screw-ups.)

  We eased into the testimony in the traditional manner: What’s your name? Age? Job? Where do you live? How long have you lived there? Do you live with anyone? And that brought up the story of his life with the lovely Arlene Croft, and a touching story it was.

  “Did you ask her out the first time you met her?”

  “No.”

  “Why not?”

  Croft hung his head for half a beat. “I was bashful, I guess. I had to get my courage up.”

  And on to the happy marriage, the two children, and then the crime. The crime, of course, was Sales’s affair with Arlene. That was well-established.

  That crime ruined Croft’s life. It had led inexorably to his sitting in this court, accused of murder. How Croft had suffered! He was so upset that he raised his hand against his wife, actually struck her, on three different occasions.

  He was telling everything. He was making a clean breast of it. He testified that he really had carried Daniels’s pistol around, because he was nervous after the burglary of his home. And yes, he kept the money for himself after he sold the pistol to the manager of the Cannery Row Club five days before the shooting because he was in debt, because of his auto accident.

  On November 14, Croft said, he got a phone call from Sales, went for a brooding walk, and went to talk to him. “Sales said, ‘I told you if you brought your ass around me again I’d blow your fuckin’ head off!’”

  Croft described how he took the gun from Sales, exactly as he had
explained it to me and to Detective Luce. Then, “He lunged at me, and I was afraid he’d get the gun back and kill me. I fired.”

  “How many shots did you fire?”

  “I don’t know, two or three.”

  Two or three? Well, he didn’t exactly contradict his statement to Detective Luce about putting two shots into Sales on the floor, and the prosecutors didn’t attempt to impeach him with that prior inconsistent statement.

  Captain Biscket didn’t lay a glove on Croft in cross-examination, so the judge tag-teamed with her. It’s unfair, but common, for the judge to conduct examinations for the prosecution. It gives the jury the idea that the judge, in his wisdom, wants the prosecution to win, for some reason. But judges call it “assisting in the search for truth,” and appellate courts aren’t offended by it unless the judge goes completely overboard.

  “How come Sales ended up on his back if he was lunging forward?” the judge wanted to know.

  “I don’t know. Maybe it was the force of the shots.”

  Plausible.

  “What was the pattern of the shots?” The judge was leaning over the bench looking down at Croft.

  “BANG.” Pause. “BANGBANGBANG.” The pause was the important part. That’s when the gun was changing hands.

  “If it was Sales’s gun, why didn’t you keep it?”

  “I was afraid. I wasn’t thinking.” Croft was sitting forward in the witness chair, looking straight up at the judge, three feet away.