The government decided not to oppose our insanity plea.
I felt afterward that I probably really shouldn’t have given Howard a big smile and handshake when the judge, on the basis of the shrinks’ reports, without taking any testimony, pronounced him not guilty by reason of insanity.
§6-17
The U.S. attorney finally closed a deal with the snitch who had information on the bus murder. The man said that it was B.J. who did it (just as we’d thought), and that he did it with a white-handled five-shot revolver, and that the revolver belonged to a certain individual, whose name he supplied. A Detective Kanjian, who told me there was “a lot of resistance” in the police department to his reopening a closed case, found that the police already had that revolver in their possession. It had been recovered from under a car near the scene of a Fourteenth Street drug bust two weeks after the bus murder. Ballistics tests indicated that it was the gun that fired the slug that killed the man on the bus. The gun’s owner said that B.J. had borrowed it one day in July, and returned it with one less bullet.
The prosecutor dropped the charges against Buie just before his trial, eleven months after his arrest. A warrant was put out for B.J., but he was shot and killed by a policeman in an unrelated incident before he could be brought to justice.
§6-18
I was sitting in court, waiting forever to do a two-minute preliminary hearing, when something caught my attention. Someone was accused of murdering Richard Joe Madison, one of my first juvenile clients—the one who was committed by Judge Quinn even though he got a part-time job and went to tutoring and counseling, the one whose brother died in a sewer. The homicide detective who was testifying was an unctuous, evasive type, whom I had come to dislike, just from seeing him testify before. Suddenly I found myself rooting for him, yet the only difference between this case and all the other cases was that I knew the victim, which was no difference at all.
“A witness near the alley,” he was saying, “heard the defendant say, ‘I’m going to kill you for robbing me.’ Then the witness heard Mr. Madison screaming, ‘Help! Help! He’s killing me!’ followed by several shots.”
The defendant’s lawyer, one of P.D.S.’s best, asked, “Isn’t it true that Mr. Madison had an extensive robbery record?”
Walking down the aisle after the hearing, the defendant smugly smiled at a friend in the audience.
I went and talked to my boss. “I think my feelings are irrelevant, but there comes a point …” P.D.S. got off the case. We had a conflict of interest. We could be accused of not trying hard enough to defend a client who was accused of killing another client of ours.
A few days later, I opened the Washington Post and saw pictures of 175 local people killed by gunfire in the past year. There, right underneath Richard Joe Madison’s picture, was a photo of Yeats Moore, my kid who was arrested for smoking on a bus. He’d been found in an alley with a bullet in the back of his head. I pulled out their files and marked their cases “closed.”
AFTERWORD
“If the courts were organized to promote justice,” Clarence Darrow told the inmates of the Cook County Jail in 1902, “the people would elect somebody to defend all these criminals [sic], somebody as smart as the prosecutor—and give him as many detectives and as many assistants to help, and pay as much money to defend you as to prosecute you.”1
Darrow’s vision will probably never be fully realized, as justice is never as popular as order. Still, Darrow would have been impressed by the system in Washington, D.C., where the courts operate in a reasonably just fashion: most of the guilty are convicted, and nearly all of the innocent go free.
By no means should one conclude that justice prevails in Washington. Ninety-nine percent of the injustice associated with crime occurs before the principals come into contact with the criminal justice system: the victim has already been victimized; the defendant, more often than not, has been subjected to every kind of abuse, from inadequate prenatal care to exclusion from the work force. The police, courts, and prisons are just mop-up operations.
“Now, no intelligent physician would consider treating an ailment without trying to discover its cause,” Darrow wrote,2 yet that is how we treat crime, concentrating on the symptomatic relief we think the criminal justice system should bring—fast, fast, fast.
In 1981, state governments alone spent $2.5 billion on police and $5 billion on corrections.3 We are setting new records for the number of people imprisoned, which rose 12.1 percent in the one year from 1980 to 1981. The only limit on the number of people in prison is the space available. When we get more space, we lock up more people. New prisons generally reach capacity by the second year they are open.4
The courts cannot reduce crime or establish justice. They are just a sorting mechanism between the front end of the system—the police—and the back end—the prisons. To the extent that the public supports adequate judicial resources and effective representation for the accused, the sorting can be done in a just and equitable manner.
I am proud of the role I played in that process.
NOTES
CHAPTER ONE
§1-03
1. E. R. Shipp, “Manhattan Studying Washington in Effort to Lift Courts’ Efficiency,” New York Times, March 30, 1981, p. 1.
CHAPTER THREE
§3-03
1. Crime and Arrest Profile: The Nation’s Capital, 1980, Office of Criminal Justice Plans and Analysis, Government of the District of Columbia (Washington, D.C.: September 1981), table 6, p. 10.
2. Crime and Justice Profile: The Nation’s Capital, Office of Criminal Justice Plans and Analysis, Government of the District of Columbia (Washington, D.C.: October 1979), p. 51.
§3-05
1. 1980 Annual Report, District of Columbia Courts, Joint Committee on Judicial Administration in the District of Columbia and the Executive Officer of the District of Columbia Courts (Washington, D.C.), p. 57.
2. Metropolitan Police Department, Washington, D.C., Fiscal Year 1980 Annual Report, Government of the District of Columbia (Washington, D.C.: June 1981).
3. Statistical Report, United States Attorney’s Office, Fiscal Year 1980, United States Department of Justice, Executive Office for United States Attorneys, Prepared by Systems Design and Development Staff of the Justice Management Division, Report 1-21 (Washington, D.C.), table 3.
4. Metropolitan Police Department, Washington, D.C., Fiscal Year 1980 Annual Report. p. 56.
5. As of April 1, 1982. Figures courtesy of FBI.
§3-09
1. “In the Matter of an Inquiry into Allegations of Misconduct Against Juveniles Detained at and Committed at Cedar Knoll Institution,” Special Proceeding M-3, Superior Court of the District of Columbia, Family Division-Juvenile Branch, Judge Kessler (Washington, D.C.: October 27, 1978), p. 20, quoting City Council Task Force on the Reorganization of the Department of Human Resources, “Report to the Council of the District of Columbia on the Operation of the Department of Human Resources” (Washington, D.C.: January 1978), p. 234.
2. “In the Matter of an Inquiry …” pp. 2, 20.
3. Ibid, p. 20.
4. Ibid, p. 49.
5. Crime and Justice Profile: The Nation’s Capital, p. 117.
6. Ibid, p. 115 (total for 1978).
7. Superior Court of the District of Columbia Rules, Juvenile Rule 2.
8. Private conversation, Jerome Miller.
§3-12
1. F. C. Bartlett, Remembering: A Study in Experimental and Social Psychology (New York: Cambridge University Press, 1967), p. 213, quoted by Monroe H. Freedman in Lawyers’ Ethics in an Adversary System (Indianapolis: Bobbs-Merrill, 1975), p. 66.
2. E. Loftus, in Psychology Today, December 1974, pp. 117, 119, quoted by Freedman, op. cit. p. 67.
3. G. A. Talland, Disorders of Memory and Learning (New York: Penguin, 1969), pp. 18–19, quoted by Freedman, op. cit. p. 67.
CHAPTER FOUR
§4-01
1. Disciplinary Rule 7-102 (A
) (6).
§4-13
1. 21 D.C. Code 501 et seq.
2. Stack v. Boyle, 342 U.S. 1 (1951).
3. Recommendation Guidelines, District of Columbia Pretrial Services Agency (Washington, D.C.: June 1980, revised March 1981), p. 8.
4. The D.C. Pretrial Services Agency, Washington, D.C., an Exemplary Project, U.S. Department of Justice, National Institute of Justice, Office of Development, Testing, and Dissemination (Washington, D.C.: May 1981), p. 7.
5. Report of the D.C. Pretrial Services Agency for the Period January 1, 1981-December 31, 1981, Government of the District of Columbia (Washington, D.C.), p. 15.
6. Recommendation Guidelines, p. 9.
§4-14
1. Crime and Arrest Profile: The Nation’s Capital, 1980, table 10, p. 16.
§4-20
1. Marquis James, The Life of Andrew Jackson (New York: Bobbs-Merrill, 1938).
2. Public Defender Service for the District of Columbia, Tenth Annual Report, Fiscal Year 1980, Public Defender Service (Washington, D.C.: 1981), p. 20.
3. Private conversation, David Powell, Ph.D., Chief, Post-trial Branch, St. Elizabeths Hospital, May 6, 1983.
4. Private conversation, Ross Dicker, Esq., Public Defender Service, May 5, 1983.
5. Private conversation, Philip Baridon, Ph.D., Chief, Program Evaluation Branch, Forensic Division, St. Elizabeths Hospital, May 9, 1983.
6. Bethea v. United States, 365 A.2nd 64 (D.C. Ct. App. 1976).
7. McDonald v. United States, 114 U.S. App. D.C. 120, 124 (1962).
8. United States v. Brawner, 153 U.S. App. D.C. 1 (1972), dissent.
9. H.R. 6716, introduced June 24, 1982, quoted by Bruce J. Ennis in “Straight Talk about the Insanity Defense,” The Nation, July 24–31, 1982, p. 70. Mr. Ennis provides a lucid analysis of the issues involved in reforming the insanity defense.
10. Leland v. Oregon, 343 U.S. 790, 802, dissent.
§4-23
1. Olmstead v. United States, 277 U.S. 438 (1928), dissent.
§4-25
1. Public Defender Service for the District of Columbia, Tenth Annual Report, p. 20.
2. Information provided by the Unitarian Universalist Service Committee’s National Moratorium on Prison Construction, 324 C Street, S.E., Washington, D.C. 20003.
3. Brady v. United States, 397 U.S. 742 (1970).
CHAPTER FIVE
§5-01
1. Crime and Justice Profile: The Nation’s Capital, p. 150.
§5-06
1. Johns v. Smyth, 176 F. Supp. 949, 953 (E.D. Va. 1959).
2. Friedman, “Professional Responsibility in D.C.: A Survey,” Res Ipsa Loquitur, 1972, p. 60, quoted by Freedman, Lawyers’ Ethics in an Adversary System, p. 38.
3. Instruction 2.27, Criminal Jury Instructions, District of Columbia, Third Edition, Young Lawyers Section, The Bar Association of the District of Columbia (Washington, D.C.: 1978).
4. Lord Brougham, in his representation of Queen Caroline, Trial of Queen Caroline 8 (1821), quoted by Freedman, op. cit. p. 9.
5. Instruction 5.09, Criminal Jury Instructions, District of Columbia.
§5-09
1. Private conversation, Kirby Howlett, Esq., Public Defender Service, August 1982.
CHAPTER SIX
§6-05
1. This description of the sociopathic syndrome is drawn from William and Jean McCord, The Psychopath, an Essay on the Criminal Mind (New York: Van Nostrand, 1964).
§6-07
1. United States v. Watson, 423 U.S. 411 (1976).
2. Gatlin v. United States, 117 U.S. App. D.C. 123, 129, n. 6 (1963), quoting Bell v. United States, 102 U.S. App. D.C. 383, 388 (1957), cert. denied, 358 U.S. 885 (1958).
3. Michigan v. Mosely, 423 U.S. 96 (1975).
§6-10
1. Edward H. Cleary, general editor, McCormick’s Handbook of the Law of Evidence, 2nd. ed. (St. Paul: West Publishing Co., 1972), Chapter 4, Section 32.
§6-14
1. Brown v. United States, 256 U.S. 335, 343 (1921).
§6-15
1. Ethical Consideration 2-29, Footnote 50, quoting 2 Boswell, The Life of Johnson, pp. 47–48 (Hill ed., 1887).
2. Criminal Trials: A Defense Attorney’s Handbook, Public Defender Service (Washington, D.C.), pp. 14–33.
AFTERWORD
1. Arthur Weinberg, ed., Attorney for the Damned (New York: Simon and Schuster, 1957), p. 12.
2. Clarence Darrow, The Story of My Life (New York: Scribner’s, 1932), p. 77.
3. “States’ Income at $300 Billion for First Time, U.S. Reports,” New York Times, October 25, 1982.
4. Jessica Mitford, “An Update on the ‘Prison Business,’” The Nation, October 30, 1982. p. 424.
* Adams’s final argument in defense of the British soldiers accused of committing murders at the Boston Massacre. See Legal Papers of John Adams, L. Kinvin Wroth and Hiller B. Zobel, editors (Cambridge, Mass.: Harvard University Press, 1965), volume 3, p. 242.
* The Sixth Amendment to the Constitution, binding on the federal courts, provides, “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” In 1963 the United States Supreme Court, in Gideon v. Wainwright, 372 U.S. 335 (1963), held that the due process clause of the Fourteenth Amendment made obligatory upon the states the Sixth Amendment’s right to counsel, and that the right was violated by a refusal to appoint counsel for an indigent defendant charged with a felony. In 1972 the Supreme Court held that “[without] a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony unless he was represented by counsel” (Argersinger v. Hamlin, 407 U.S. 25 [1972]).
* In the District of Columbia in 1978—the most recent year for which detailed data have been published—among adults arrested for serious crimes whose employment status was known, 57 percent were unemployed. Of those arrestees who were employed, 30 percent held unskilled service jobs; only 10 percent held “white collar” jobs. (Crime and Justice Profile: The Nation’s Capital, Office of Criminal Justice Plans and Analysis, Government of the District of Columbia [Washington, D.C.: October 1979], pp. 82–83.)
* There were over 600,000 lawyers in the United States in 1980, up from 355,000 in 1970 (private conversation, Barbara Curran, American Bar Foundation, June 9, 1983).
* The Code (Ethical Consideration 4-1) does permit a lawyer to discuss confidential information with other lawyers in his own firm. The clinic was incorporated as a law firm; thus, we were able ethically to discuss these matters.
* Adjournment in contemplation of dismissal, an arrangement pursuant to which no plea is entered and no finding regarding the defendant’s guilt is made, but, rather, the case is set aside for a time and is then dismissed if the defendant has stayed out of further trouble.
* Nationwide, in 1982, 33 percent of the law school graduates were women, up from 8 percent in 1972. Eight percent of 1982 law graduates were minorities, up from about 6 percent in 1975. (Private conversation, Kathleen Grove, office of the consultant on legal education, American Bar Association, July 13, 1983.)
* The Code’s Ethical Considerations are “aspirational in character,” as opposed to its Disciplinary Rules, which are “mandatory in character.”
* In Washington an accidental killing constitutes murder in the second degree if it results from conduct so reckless as to manifest “malice,” that is, a depravity of mind and wanton disregard of human life. An accidental killing constitutes manslaughter if it results from conduct that is reckless, but not so reckless as to manifest “malice.”
† As a result of litigation and other matters related to his practice, Dr. Sherman’s financial circumstances had deteriorated to the point where he qualified as indigent.
† “One of the highest services the lawyer can render to society is to appear in court on behalf of clients whose causes are in disfavor with the general public” (Professional Responsibility: Report of the Joint Conference
,” American Bar Association Journal, vol. 44, December 1958, p. 1216).
* Juveniles are “respondents,” not “defendants.” They don’t have “trials,” but “fact-finding hearings”; they aren’t found “guilty,” but “involved”; they aren’t given “sentences,” but “dispositions.” The distinctions are purely semantic, lingering traces of the idealistic past when family court was conceived as an institution concerned with the “care” of “children.”
* For an interesting discussion of the psychological implications of the expression “motherfucker” (and comparable insults in sixty-six languages), see Edgar A. Gregerson, “Sexual Linguistics,” Annals New York Academy of Sciences, vol. 327 (Language, Sex, and Gender), 1979.
How Can You Defend Those People? : The Making of a Criminal Lawyer Page 35
