“This man you said you sold Daniels’s gun to—did you try to find him to come and testify?”
“I’ve been in pretrial confinement since November fourteenth, sir.”
“Did you have your lawyers try?”
“I object, Your Honor!” I said as I leapt to my feet. “As the court knows, the defense asked for a continuance and for funds for investigators …”
“All right. All right,” the judge said and left off questioning.
Captain Hooton, wandering around the room like a loose cannon on a pitching deck, fired off a few questions whose aimless nature was only emphasized by the ruthless-and-clever-interrogator’s look he put on his face: “Why didn’t you throw the gun aside, instead of firing it?” he demanded, scowling. “Why didn’t you call an ambulance?”
When Hooton couldn’t think of anything else to ask, he sat down, and Croft returned to the defense table, where I touched his shoulder and whispered a word or two in what I hoped looked like a casual sign of collegial respect, such as one senator might vouchsafe to another during a break at a subcommittee hearing. Nobody here but us stalwart citizens.
We introduced into evidence police records proving that a burglar had, in fact, been arrested in Croft’s home on October 15, giving Croft a reason to carry Daniels’s gun. We introduced Arlene Croft’s phone bills, proving that she had continued to call Irwin Sales right up to the time of his death, which suggested that he was still involved with her and therefore had a reason to arm himself against Croft. We introduced a police accident report verifying Croft’s auto wreck in July, to show that Croft really did have big expenses and that it was therefore understandable that he pocketed the $150 for Daniels’s gun. We introduced these documents to introduce documents, pile up evidence, prove something, prove anything, and prove that things said by Croft were true.
The defense rested.
The jury was excused, and we argued about what the closing instructions to them should be. In his closing instructions the judge tells the jury what they’re supposed to decide and how they’re supposed to decide it. He explains the elements of the offenses with which the defendant is charged, and the requirements of any affirmative defenses, such as self-defense or insanity, which have been raised; he explains what is evidence (all of the testimony and exhibits admitted) and what is not evidence (stricken testimony, anything said by the lawyers or the judge); he explains the presumption of innocence, the burden of proof, the concept of reasonable doubt. He reads most of these instructions from a book of standard instructions, so that every defendant will be judged according to rules couched in exactly the same language, rather than have his fate influenced by the pet legal explanations of a particular judge.
I share the commonly held belief that it generally doesn’t make much difference which instructions are read to the jury, for the simple reason that jurors usually pay no attention to them, because committees of lawyers have written and rewritten the instructions to a state of stupefying turgidity. (Paradoxically, meaninglessness often results from lawyers’ attempts at precision in meaning. Everything that is not meant to be meant is carefully excluded, until nothing is meant, for fear of meaning too much.)
An instruction that clearly counts, though, is the one that tells the jury what they can find the defendant guilty of. It’s binding—the jury can’t improvise. In Croft’s case, the judge could decide that, as a matter of law, the evidence supported either a murder conviction or an acquittal, period; or he could instruct the jury to consider the lesser included offense of manslaughter. If the jury had to pick murder (a life offense) or nothing, it would make it harder for them to convict. On the other hand, it would make it very hard on Croft if they convicted. If the judge gave the jury the manslaughter instruction, it would give them an out to avoid a murder conviction, but it would decrease the chance of an outright acquittal, as they would have the easy option of a “compromise verdict”—guilty of manslaughter, which carried a maximum sentence of ten years, with parole eligibility after one third of the sentence. Both government and defense are entitled to submit proposed instructions to the judge, who makes the final decision. We were tempted to roll the dice by asking for the all-or-nothing murder instruction, but we got cold feet and asked that the manslaughter instruction be added. Biscket and Hooton took no position.
For a homicide to amount to murder, it must be perpetrated with malice; that is, the act must be done with a wicked state of mind, a heart “fatally bent on mischief.” If the act of killing was committed not with malice, but in the heat of sudden passion produced by a provocation sufficient to provoke an ordinary man to an ungovernable rage, then the killing is manslaughter. Actually seeing a spouse in the act of adultery, for example, has historically been recognized as sufficient provocation to reduce killing to manslaughter, provided that the killing is done within a reasonable amount of time after the provocation, say a half hour or so, before the killer has time to “cool down” and consider the wickedness of what he is about to do.
The judge at first said he would not give a manslaughter instruction because the evidence didn’t support the necessary finding that Croft acted in the “heat of passion.”
We insisted that just because we had said Croft acted in self-defense, that didn’t mean the jury couldn’t pick and choose from all the testimony on both sides and find that he acted in the heat of passion. The defendant is entitled to have instructions given on any theory of defense for which there is any foundation in the evidence, however weak, even if the theory conflicts with the defense he has presented. For instance, a defendant who has presented an alibi—claiming not to have been present at the offense—is still entitled to an instruction on self-defense, if some evidence supporting self-defense has been presented by either side. Here, admittedly, it was hard to think of anything suggesting that Croft had been provoked to sudden passion, but the judge, realizing that a conviction might be reversed if he didn’t give the instruction but would never be reversed if he did, said he’d sleep on it.
I didn’t sleep on anything. I had to write a closing argument. When court adjourned at six o’clock, I said to one of my investigators, “I predict two things: one, at one A.M. tonight I won’t have written the first word; two, I’ll be amazed that I haven’t written the first word.” Both predictions came true.
We were so exhausted that the simplest tasks, like eating, seemed almost beyond our capacity and took forever to accomplish. Captain Arnold and I finally got together at my office at 9:00 P.M. He gave me a concise review of what each witness had said, in the order in which they had testified. It took us two hours. It would have taken me two days, and I still wouldn’t have gotten it right. Then he left, and the last few P.D.S. lawyers left, and I found myself alone in a hollow, darkened building. I decided to make some coffee. It took me a long time to find the pot. Then I couldn’t find the coffee for a while. Then I knocked over the pot of coffee and had to clean it up and start all over again. The coffee project took me one hour. It was 12:30 A.M. I was sick to my stomach from tension and exhaustion. I fought back tears.
The more I reviewed the evidence, the more despondent I became. We had an insoluble problem, and it was the same problem we were aware of on day one: Croft’s story was inherently incredible. He borrows Daniels’s gun, which is the type of gun which fired the fatal bullets, and that gun is nowhere to be found. He says he sold it five days before the shooting, but he never told Daniels he sold it, never gave him the money, and the buyer can’t be found. He says he pulled Sales’s gun away from Sales and fired in self-defense, but the autopsy suggests at least one shot went into Sales as he lay on the floor. Then he threw Sales’s gun, the one piece of evidence that could exonerate him, into the Potomac. As against that pyramid of improbabilities, the government’s theory was simple and had no loose ends: Croft brought Daniels’s gun with him, blew Sales away, and threw the gun into the river. All the jury had to decide was, whose gun was in the Potomac? And the answer seemed as obvious a
s it was damning.
Even as I realized that the events of November 14 did not look good, I was swept over by another realization: the events of February 25 through 28, in the courtroom, had looked good. We had put on a much slicker presentation than the prosecution had.
“Put the government on trial!” I exclaimed aloud. Get the jury to forget about November 14, and concentrate on the events that had transpired in the courtroom, the events that they had seen, the events that were most real to them. The prosecution had been slipshod; the prosecution had not done its job; the prosecution did not deserve to win. Couple that with our theme from the beginning—that Sales deserved to die—and we just might win.
I put together an overview of the trial from that perspective. By 3:00 A.M. I had eight yellow legal pad pages filled with an outline. I was as prepared as I was going to be. I drove home and slept two hours.
§6-14
The judge announced that he would instruct the jury to consider the lesser included offense of manslaughter.
The jury filed in. From the grave expression on their faces it was apparent that today they felt less like spectators and more like people sitting in judgment of a fellow man.
Captain Biscket presented a rambling, monotonal closing argument, which lasted seventy-five minutes. Recounting, with no particular emphasis, the testimony of every single witness, she failed here, as she had failed throughout the trial, to present a “theory of the case,” that is, to explain what must have happened. As I listened, my adrenaline and caffeine levels plummeted, and I had trouble staying awake (a condition I did not try to hide from the jury). Only one thing she said really sat me up: “Dr. Korzeniewski, the medical examiner, testified that when Sales was shot, he was not lunging forward; his arm was stretched out to the side.” Dr. Korzeniewski never said that.
We broke for lunch before I had to speak. I spent the hour walking alone. I went through my argument repeatedly, compulsively, distracted only occasionally by thoughts of myself: “Here I am, about to argue my first murder trial; soon it will have been decided, it will be a long time ago, I’ll be old, this will always be the day of my first murder verdict, a clear, cold, sunny day. I’ll remember ‘I won,’ or ‘I lost’ …” Self-absorbed, beyond embarrassment, I spun about in front of an antique cannon, practicing how I would act out Sales’s movements as the slugs tore into him.
The time came that I was standing in the center of the court, spectators behind me, the jury towering over me. I heard my quavering voice. I had begun.
“Your Honor, ladies and gentlemen of the court: first of all, we want to thank you for your attention during what has been a long, and not always fascinating, trial. I think we all know better now what is meant by ‘a trying experience.’” Clunk. God, where is my judgment? But seriously, folks …
I went into the standard burden-of-proof rap, with a little extra emphasis on the patriotism angle. “This is the last opportunity I’m going to have to speak to you on behalf of Peter Croft. I talk only once. The prosecutor gets to speak again. And there’s a reason for that. It’s not just some technicality or rule of procedure. The government gets to speak again because of a principle which is the very foundation of our whole system of law; a principle upon which this nation was founded; a principle which distinguishes our country from most of the nations of the earth [the jurors sat taller and seemed to fight back the urge to salute], and that is, that the government has the burden of proving, beyond a reasonable doubt, that the citizen accused is guilty of each and every element of the offense. Peter Croft is presumed innocent. He didn’t even have to testify.”
(I’m of two minds about emphasizing the presumption of innocence/burden of proof. It’s a rule that gives the defendant an advantage, as it was intended to, if the jury adheres to it; so it makes sense to call it to their attention, logically. But theatrically, would an innocent man talk about whether his guilt has been proven beyond a reasonable doubt? Theatrically, I want to say it isn’t even close. Hey, we’ll take the burden. By any standard, this guy just didn’t do it. I tried to resolve the dilemma by relating the proof-beyond-a-reasonable-doubt standard to the government’s miserable performance in the courtroom, while sticking to the it’s-not-even-close posture regarding what happened out in the world.)
“The government is accusing Peter Croft of murdering Sales.” (I had decided to use Croft’s first and last name every time I mentioned him, and to use Sales’s last name only, in order to humanize the one, dehumanize the other, and most important, to try to keep myself from calling one by the other’s name, which I had done at least once a day from the beginning.)
“There’s no question that Sales is dead, and there is no question that Peter Croft fired the shots that killed him. The question is, was the killing wrongful, that is, was it murder? Or was there legal justification for it, that is, was it self-defense?
“How will you decide that question? The one way you will not decide it is the way the prosecutor said.” A few jurors followed my example as I cast a sidelong glance at Captain Biscket, who was pretending to be busy writing. “She said, ‘We can only speculate as to what happened.’ [She actually said that.] As the judge will instruct you, speculate is one thing you will not do. We do not decide issues on speculation, but by considering the evidence.
“What did the evidence show? Remember, we presented an opening statement in which we outlined for you what we expected the testimony would be, before the first witness took the stand.” I recapitulated the opening statement, painting yet again the picture of the gun-toting Sales, home-wrecker, braggart, sexist, a man “looking over his shoulder” because he knew what he deserved. “And isn’t that exactly what the testimony was? How could Peter Croft have known what all those witnesses would say before they said it? There’s only one way: Peter Croft knew what they would say because he knew they would tell the truth, just as he told you the truth.” (This was one inference supported by the evidence, and it was permissible for me to argue it to the jury. I was under no obligation to point out other, equally permissible inferences, such as that our investigators had interviewed most of the witnesses, or that we had the prior sworn statements of all of them.)
So much for the trial of Peter Croft; now for the trial of the government.
“The government, in its closing, misstated Dr. Korzeniewski’s testimony. The prosecutor said that Dr. Korzeniewski said that Sales’s arm was stretched to the side, not lunging forward. You remember what Dr. Korzeniewski really said. He said, ‘I can’t determine what particular position his arm was in.’ The government tried to distort the testimony, tried to fool you. And I ask you, as calmly as I can, with all the control over my voice that I can muster, ‘Isn’t that reprehensible? Don’t you have the right to expect better than that from your government?’” To my own surprise, my voice shook with genuine rage as I pointed an accusing finger at Captain Biscket. She looked down at her notepad.
I had my own plan for the coroner’s testimony. “Let’s pretend for a moment that the lieutenant colonel [sitting in the jury’s center seat] is Peter Croft, backing out the door, and I am Sales.” I lunged toward her. “POW!” I held my pen to my lip at the angle of the bullet’s trajectory and jerked my face to the right, as though from the impact of the bullet. “The first shot enters above the lip, travels left to right, front to back, upward. It’s fatal. POW! The second shot, left to right, slightly upward, penetrating the left shoulder, passing through the armpit, upward, cuts the trachea and subclavian artery and drops into the chest. Fatal.” I spun to my right as I said this. “POW! Number three. Through the left arm. Flesh wound. POW! Four, left to right, through the musculature, making an oval exit as though the back were on the floor; it causes no serious injury.”
Now they’d seen that it happened just as Peter Croft had described it.
“Finally, the government called Mr. Strickland, the firearms expert. And the government elicited testimony from him at great length, just as though he had something mater
ial to say. But he really didn’t, did he? The government was trying to do it with mirrors, make it seem as though he were saying something he never said. When the smoke cleared, what exactly had he said?
“He testified that among the suspect weapons are thirty-eight and three-fifty-seven Magnum revolvers manufactured by Rohm, RG Industries, Charter Arms, Dickson, Burgo, Liberty Arms, and Ruger [Sales’s brand]. Each manufacturer makes different models, and each model has a production run of individual weapons. If Mr. Strickland’s testimony had been the same, but translated in terms of cars, then what he said would have been: ‘The suspect car was a compact or a subcompact. Among the suspect manufacturers are Honda, Toyota, Datsun, Subaru, Chevy, Ford, Plymouth, or Mercury.’
“Peter Croft told you that he went to Philadelphia and sold Daniels’s weapon to the bouncer at the Cannery Row Club. Did the government adduce any evidence to the contrary? Did they show that Peter Croft was on duty that weekend? That the Cannery Row Club doesn’t exist?
“Everything happened just like Peter Croft told you. And he doesn’t have to prove anything. The government has to prove, beyond a reasonable doubt, that Peter Croft wrongfully killed Sales. And the government hasn’t proven anything!
“And why do you suppose that is? Because Peter Croft is not guilty.”
Captain Biscket managed to speak for another half hour in rebuttal without putting forth a prosecution theory of the case. Then the judge instructed the jury.
He explained that self-defense in a homicide is established when two elements are present: first, the defendant must actually have had a reasonable belief that death or grievous bodily harm was about to be inflicted upon him; second, the defendant must have believed that the force he used was necessary to protect himself.
Regarding the first element, the test for the reasonableness of the defendant’s belief that he was in danger is objective, that is, the jury must decide whether a reasonable, prudent person, facing the circumstances the defendant faced, would have believed he was in imminent danger of death or grievous injury. Accordingly, such subjective factors as the particular defendant’s intelligence and emotional stability are not relevant to the jury’s determination of whether his fear was reasonable. But objective factors such as the defendant’s size, and the possibility of a safe retreat,* are relevant.
How Can You Defend Those People? : The Making of a Criminal Lawyer Page 33
