BOALT – LEGAL PROFESSION
TWELFTH WEEK – CRIMINAL LITIGATION; COUNSELING; EVALUATOR
NOVEMBER 13, 2012
FAQ’s
All Students
Read
Ex. 12.2
Excerpts from
ABA Standards
(The Defense
Function)
All read; no cold
call
Ex. 12.3
Prosecutors in
their Own
Words
All Read; S-Z
ready to discuss
Ex. 12.4
PD Rant
All Read; A-C
ready to discuss
Ex. 12.5
What Can
(Should) (Must)
Defense Counsel
Do when
Accused of
Ineffective
Assistance of
Counsel?
All read; D-J
ready to discuss
Counseling at
the Limits of
Law
All read; K-L
ready to discuss!
Ex. 12.6
Note! This is a
PDF handout
available at the
course site/
Read MR 3.1 – 3.9
12. CRIMINAL LITIGATION
12.1 Frequently Asked Questions
(12.1.1): Do the Model Rules apply to criminal litigation?
1
Yes, they do. Rule 3.8 regulates prosecutors, and there are a few sentences and comments
dealing with criminal defense lawyers, such as the second sentence of 3.1 and the provisions in 3.3(a)
that deal only with criminal defense.
(12.1.2): What else supplies the “law of lawyering” in the context of criminal litigation?
(And how is that different from the non-criminal context?)
The field of criminal litigation has several bodies of governing besides the ethics rules. For
example, the protections in the Bill of Rights can set a minimum floor for the level of lawyering that a
criminal defendant must receive and can set limits on the behavior of prosecutors. Prosecutors can be
subject to guidelines and policies set internally within a prosecutor’s office or by the state or federal
agencies. And the ABA has an entire set of standards for criminal litigation that go beyond the Model
Rules.
(12.1.3): What practical realties affect how criminal litigation plays out?
Despite what the rules say, many (most?) observers believe that he prosecutor has nearly all the
power and control in criminal litigation. This “uneven playing field” has enormous impacts on how
particular prosecutions play out. On top of that, the criminal defendants often lack money to hire
lawyers and to incent lawyers to mount vigorous defenses. Public defenders can be burdened by
enormous caseloads, effectively preventing them from mounting formidable defenses in many cases.
(12.1.4): What rules apply to the prosecutorial function?
The Constitution, the ethics rules, the ABA Standards, and the case law all agree: the
prosecutor should act as a minister of justice, seeking just results. (Whether or not they act that way in
any particular case is a different question.) Whereas a civil litigator can seek any advantageous result
so long as the lawyer follows the rules and plays fair, the prosecutor must seek only those results that
are just. So, for example, if the prosecutor believes the defendant did the crime but that it cannot be
proven beyond a reasonable doubt, the prosecutor is supposed to dismiss the matter.
(12.1.5): What rules apply to the criminal defense function?
If you read the rules carefully, and with some knowledge of how the defense function works,
you will realize that so long as the defense lawyer doesn’t offer false evidence, she may offer a case
theory she knows to be false. We will explain this in class.
(12.1.6): What recent developments have arisen in this field?
Rule 3.8 has two new paragraphs dealing with a prosecutor’s duties after convictions to
respond to evidence that tends to exonerate the convicted. There is a current controversy about how
well—or how poorly—we support the roles of public defenders. We also have a recent US Supreme
Court holding that part of the Sixth Amendment promise of “effective assistance of counsel” requires
criminal defense counsel to advise the client of the effect of plea bargains on the deportation status of
the accused. (Padilla v. Kentucky)
12.2. ABA Standards for Criminal Justice (Defense) (excerpts)
Standard 4–3.2 Interviewing the Client
2
(a) As soon as practicable, defense counsel should seek to determine all relevant facts known to
the accused. In so doing, defense counsel should probe for all legally relevant information
without seeking to influence the direction of the client's responses.
(b) Defense counsel should not instruct the client or intimate to the client in any way that the
client should not be candid in revealing facts so as to afford defense counsel free rein to take
action which would be precluded by counsel's knowing of such facts.
History of Standard
There are stylistic revisions only.
Related Standards
ABA Standards for Criminal Justice 4–3.1(a) (3d ed. 1993)
Commentary
Securing Facts from the Client
The client is usually the lawyer's primary source of information for an effective defense. An
adequate defense cannot be framed if the lawyer does not know what is likely to develop at trial. The
lawyer needs to know essential facts, including the events surrounding the act charged, information
concerning the defendant's background, and the defendant's record of prior convictions, if any. In
criminal litigation, as in other matters, information is the key guide to decisions and action. The
lawyer who is ignorant of the facts of the case cannot serve the client effectively. 1
The client, whether innocent or guilty, often knows facts that may tend to be incriminating. For
example, though the defendant may be innocent, he or she may have been near the scene of the crime
at the time it was committed and, hence, may be reluctant to disclose that fact to the lawyer for fear
the lawyer will lose confidence in his or her innocence and thus fail to pursue the case zealously. The
lawyer must recognize this reluctance and overcome it in order to obtain the facts necessary for an
effective defense.
Defense counsel has sometimes been depicted as following the strategy of informing the client of
the legal consequences of various factual situations in order to influence the client to adopt the factual
version most favorable to a legal defense, for example, the claim of insanity. 2 A lawyer who follows
this course handicaps an effective defense by promoting ignorance of facts that may ultimately be
revealed at trial.
Calculated Ignorance of Facts by the Lawyer
The most flagrant form of “intentional ignorance” on the part of defense lawyers is the tactic of
1
2
See also Standard 4-3.1 Commentary.
See, e.g., R. TRAVER, ANATOMY OF A MURDER (1958).
3
advising the client at the outset not to admit anything to the lawyer that might handicap the lawyer's
freedom in calling witnesses or in otherwise making a defense. This tactic is most unfortunate in that
the lawyer runs the risk of being the victim of surprise at trial. A lawyer should make clear to the
client the imperative need to know all aspects of the case; the lawyer should explain that all of the
client's statements and those of other witnesses must be fully investigated. To secure candid disclosure
from the client of facts that are often both incriminating and embarrassing, the client must be sure that
these facts will not be divulged by the lawyer. Accordingly, the client should be given an explanation
of the extent of the privileged status of all information revealed to counsel. 3
********
12.3. Prosecutors in Their Own Words (Baker)
Chapter Three: Tactics
After all the plea agreements are made—which accounts for 85 to 90 percent of the
prosecutor's caseload—he or she is left with,
the cases that must be taken to trial. It's not easy
to win a jury trial. According to Newman Flanagan, executive director of the National District
Attorneys' Association and the president of the American Prosecutors' Research Institute, the
conviction rate in jury trials for prosecutors nationwide averages only about 62 percent. "You ask the
public what the conviction rate is in jury trials," laughs the former district attorney of Boston,
Massachusetts, "and they will say it's upwards from 90 percent. When they hear that 62 percent
figure, they go, 'My God! That's outrageous. Half of them are getting away.'
"I tell them, 'Wait a minute, you don't think this defendant is trying his case because we
caught him red-handed in the store he robbed, do you? No, this guy is trying his case because there is
merit to a potential not-guilty verdict. This guy knows he's got a shot.' "
The defendant and his counsel know "he's got a shot" because of disclosure. Rules of
discovery or disclosure in state judicial systems require both the prosecution and the defense to
reveal all the evidence and witnesses that will be introduced at trial. Both sides know exactly who
will testify, and often what they will say. Both sides know what the jury will see, and when they will
see it.
Ah, for the good old days before the majority of the states changed their criminal codes,
when there was no discovery, and a prosecutor didn't have to tip his hand by giving up all his
evidence and witnesses to the defense counsel before the trial. The writers for the old Perry Mason
television programs got it all wrong. In the real world, Perry would have been the ambushed lawyer
in the courtroom, sitting at the defense table with his mouth opening and closing like a beached fish
as the district attorney, Mr. Burger, called a surprise witness, introduced new evidence, or started a
totally unexpected line of questioning that confirmed the guilt of the defendant beyond a reasonable
doubt. A former prosecutor who is now on the bench reminisces about that glorious era:
3
See Standard 4-3.1(a).
4
"The defense attorney had to work an awful lot harder to find out anything about his case. He
wasn't being handed the prosecutor's file. There were only a couple of sources of information for the
defense. It was common then, and almost never happens now, that preliminary hearings were held in
criminal cases before the matter even went to the grand jury, so there was a limited amount of
discovery that was done there. At least some of the witnesses testified under oath, and there was
some indication as to what was going on in the prosecutor's case.
"There were also some defense attorneys who had pretty close friends on the law
enforcement agencies—either the police department or the sheriff's department. Those who did a lot
of criminal practice would also handle the divorces for the cops and build a relationship with them,
so they would get a lot more information than we were willing to give them.
"The greatest tool that was used by both sides in our area was True Detective magazine. One
of the local court reporters was paid a penny a word to write his own lurid version of these crimes for
the tabloids, and there would be more about our cases in the magazine than there were in either the
prosecution or the defense case files. His stories always came out before the trial and had amazing
things in them. He would have photographs of the evidence and interviews with the defendants. So
we always went out to buy a copy and put it in our briefcases. If you didn't have a copy, then you
were incompetent counsel.
"Not having the discovery was a lot of fun for prosecutors. Since you weren't tipping your
hand and telling them everything about the case, you were allowed to spring great surprises on these
people.
"For instance, one day I had a burglary case. I was talking to the defense attorney the day of
trial, and I said, 'I don't understand why this guy's not pleading guilty. We made him a reasonable
offer.'
"'Oh no, no, he's totally innocent,' the defense attorney says.
"'I might as well tell you now. I've got fingerprints inside the residence. That places him in
there.'
"He walked back to the counsel table, whispered to his client for a while, came back, and
said, 'Oh, he can explain those fingerprints. He had visited there on a couple of occasions. The babysitter had him over. He knew her and had been in the house in the living room, so his fingerprints
being there is no problem.'
"So I reached down in a bag and pulled an item out and threw it on the counsel table. He
said, 'What's that?'
"'It's the dryer vent from the basement window that was ripped out. His fingerprints are
impressions in the lint of the vent, a set of eight prints. Is that how he visited the baby-sitter every
time he went over?' The guy pled guilty then.
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"All of a sudden, here comes the evidence in the case, which would come as a terrible shock
to them. So those days were fun."
Those days may have been fun, but the results were often unfair and generally inefficient.
The crime rate outstripped the ability of the system to handle cases in the 1960s and 1970s. At the
same time, taking their lead from the Supreme Court dominated by Justice Earl Warren, the public
became aware of the fundamental inequity of trial by ambush. As a result, the majority of the states
instituted changes in their criminal and civil codes, making disclosure a part of the defendant's basic
rights in trial. The introduction of discovery was perhaps the most momentous change in criminal
prosecution in the last hundred years. A longtime defense lawyer, with over thirty years' experience
practicing in a primarily rural part of a Southern state, remembers the very first time he filed a
motion for discovery:
"The first time I introduced a motion for disclosure, what we call a motion for discovery, was
in 1971. Frank Jenkins, the state attorney was at his raging, steaming best back in those days. I
presented the motion to him right in front of old Judge Harper, and Frank Jenkins said, 'What is this,
some ACLU trick?'
"The judge boomed from the bench, 'No, Frank! These are the new rules of criminal
procedure, and you're going to abide by them!' That probably was the death knell for the old-stylefire-and-brimstone political animals. He didn't believe in giving out the names of his witnesses,
which meant giving away his case as far as he was concerned. Of course, the end result has been
very beneficial, because there are no more surprises. Everybody knows in advance exactly who's
going to testify for the state and for the defendant. Prosecutors go out and interview the defendant's
witnesses. As far as efficiency in prosecution, there are more pleas now, because it's easier to assess
the vulnerability or the strength of the state's case. You don't have to try them all, and they couldn't
do that anyway these days. There are just too many cases."
Leveling the playing field afforded prosecutors with a more swift and orderly machine to
dispose of the majority of their burgeoning caseloads, but it has also had the effect of winnowing out
the no- brainers. Only the difficult cases tend to come to trial. Defendants don't get away with
murder because of a "technicality" in the trial process exploited by amoral defense lawyers. A guilty
person may, however, walk away scot-free from his or her crime because law enforcement or the
prosecutor have made a mistake. The margin of error that can be accommodated in prosecution is
narrowed to a hair's breadth.
Some new, young prosecutors face this challenge with the bean-counting zeal of an IRS
auditor crossed with the techno-dependency of a full-blown computer dweeb. The cyber-library of
precedents is exhaustively researched. Every question, every motion, every point in closing
arguments is written out and virtually read to the court in an attempt to eliminate any risk of an
omission or gaffe. Fear of losing has led to an exponential proliferation of experts in the judicial
complex—experts on jury selection, expert witnesses of every stripe, professional trial coaches
giving expert "How to Prosecute ..." seminars in ever more narrow categories.
Careful preparation, attention to details, a thorough knowledge of the record on similar cases
are all essential to a well-prepared prosecution. But in the end, there really is no way to cover all the
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bases. There is no surefire formula for success, no machine that can churn out a guilty verdict. There
are just too many people involved—a minimum of sixteen, not even counting the victim and
witnesses—with the infinite variety of behavior, emotion, and ways of thinking that humans are
capable of. Outcomes are unpredictable. A good prosecutor needs good instincts more than good
computer skills.
A trial is still essentially civic theater, a human drama, and jurors appreciate a talented actor
with a full repertoire of familiar guises—the ability to make them comfortable like an old friend, to
guide them like a respected father, to fire them to righteous indignation like a good preacher. Ageold rhetorical skills, the ability to think on your feet, the patience to wait quietly rather than jumping
in to fill a witness's sudden silence—these are the genius of a good trial lawyer and a winning
prosecutor. Their descriptions of successful tactics sound like pointers from a veteran of the
Broadway stage on timing, on overplaying an emotional scene, on how to handle hecklers. Winning
prosecutors don't talk much about legal precision or worming obscure judicial concepts into a case.
For them the point is connecting with other people, inspiring trust, convincing the skeptical,
charming the adversarial, befriending the oddball, browbeating the pompous, and giving the guilty
enough rope to hang themselves if they are foolhardy enough to take the stand.
Perhaps none of tricks of the trade mentioned in this chapter is more practical than this bit of
advice on personal hygiene:
"Very early in my career, I was trying a drug case with a supervising attorney. He is very
heavy, a very overweight guy, although a nice guy, and he had a very heavy beard. Being
overweight, after six or eight hours in court, he was 'fragrant,' and his beard would start poking out in
this thick five o'clock shadow. By the end of the day, he looked like he'd been on a week-long drunk.
"We're trying this case, and we're going to the jury late in the evening. The judge broke for
supper about six o'clock, and everybody went to eat. We met again about seven. The defense
attorney looked just like he had at nine o'clock that morning, when we started.
"I realized that he must have a duplicate outfit. What he did during the break was go back to
his office, shower and shave, change shirts and suits. He was as fresh as when he started. I knew
because of the shirt he was wearing in the evening—even though it was the same color and pattern as
his soiled shirt, it didn't have a monogram over the pocket. He had completely changed into an
identical outfit, and he looked sharp in front of that jury. We looked whipped.
"It's clever, a neat trick. I asked him about it later, and he evaded the question, so I knew I
had him. If you have long, serious trials that wear you out, you ought to think about things like that.
Instead of going to lunch, run into the damn shower and get yourself back together."
***
My whole attitude as a prosecutor was, you came in and you took over the courtroom. The
judge just happened to be sitting there. Normally, I tried not to get too closely involved with the
victims in a case. I'd stay as objective as I could while I was trying it, because that made it much
easier for me to work and do my job. You've got to be totally objective and professional. The
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prosecutor must appear before the jury as a fair and unbiased representative of justice, running the
entire operation. You should be indoctrinating that jury, telling the jury just what life is going to be
like for them. What they can expect. Tell them everything you can possibly tell them. Tell them all
the laws. Tell them all the things that the defense attorney wants to tell them about the case as well
so that he'll haw nothing to say. And if he does have anything to say, it will be that he's going to
agree with all the things that you just said. It works. The defense attorney would not only agree, he
would say, "Just as the prosecutor told you ... and as the prosecutor explained to you."
You want to build your case so those people are relying on you. You're the only expert in the
court. You're the one who's telling them everything. You're the one who they rely on totally, and you
must have them totally sold on that.
But nothing you say is just your opinion. You never say, "This is my opinion; this is what I
think." You say, "This is what the facts are going to prove to you, folks. This is what's going to be
established." Never personal. Never say, "I think this is a bad man." Don't worry about that. Tell
them, "This is what you are going to find about this defendant." It's all their judgment. The
prosecutors who get up there and begin saying, "I think and I feel," if there is no objection from the
defense, half the time, as a judge now, I'll stop them anyway. "This isn't the way a case is tried, and
what you think has nothing to do with it."
***
I had gotten in with a bunch of lawyers in a civil practice. My job was to rain-make, go get
clients in. I was in the courtroom less and less. When I got this job as a part-time prosecutor five
years ago, I didn't realize how shabby I had gotten as a trial lawyer.
I got over to my first case, and it was a black guy charged with possession of a firearm by a
convicted felon. The public defender over there, I thought the guy lied to me. We made a deal, and
we went to talk to the judge about it, and this guy changed it—I thought. That really irritated me
pretty good, so we set it for trial, and he just ripped my ass. Later, I found a handwritten note in my
file, in my handwriting, that laid out the deal more or less as the public defender had stated it for the
judge. I had just forgotten. He hadn't led me on.
This black guy was a convicted felon years ago, who had led a decent life for a long time.
The reason he had a gun was that life was just as dangerous out there for him as it is for the rest of
us. You had a white middle-class jury sitting there listening to his lawyer telling them, "Hell, yeah,
he had a gun. If you lived where he lives, you'd have a gun, too." I'm sitting there thinking, "He's
right. That's right." He just stomped a mud hole in my ass on that one.
It took me a long time to get back on track. I want to say I was timid, but it wasn't really
timidity. I was faltering in my command of the evidence. My procedures were weak. It took me a
long time to get up to speed. I think I did.
The real secret to trying cases is to try and tell stories that peo-ple will listen to. You tell
something in the fashion of a coherent story—there's a beginning, a middle, and an end—the subject
matter flows. If you approach cases as a story with a theme and characters and a logical ending,
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you'll do a couple of things: You'll present the case in an orderly fashion. "I want to tell you, the jury,
a story. I have to start at the beginning of the story and fill in all the little blanks with witnesses and
evidence." They can perceive and receive the evidence clearly that way if they know beforehand
what the story is about. Maybe it's about the all-American dream gone bad. It's about unrequited
love. It's about avarice and greed. It's about envy, or whatever the fuck it is about. It's always about
something. A few crimes don't make sense, but most of them have a story. If the jury knows what the
story is about, when they hear it, it makes sense and the things you tell them you're going to do make
sense, then you have credibility, which is critical. If you lose your credibility with the jury, it's over.
So if I'm trying a case, I'll tell you, "This is about someone who wants to beat the system,
someone too lazy to do anything except try to beat the system." Then I outline this story about a guy
who develops bogus bank accounts and begins kiting checks around the community. He's got some
grand scheme and—boom! —it finally falls apart. I'm not going to get up there in front of the jury,
and say, "This is a complicated financial case, and you need to pay strict attention." What's that
mean? But if you're telling a story, when the first witness gets up and says something, they have a
general idea of how that's going to fit into the big picture. That's why it's critical that they understand
the story.
In the basic rape or possession of drugs cases, we don't need lawyers to try those. You just
need tape recorders and enough courtrooms and jail cells. But in the case where the difference
between conviction and acquittal is a lawyer, you have to make it into a story.
I started doing that and getting more fluid with my evidence. The other key to trial work is
the rules of evidence—what's admissible, what isn't admissible. If you don't know your evidence,
you're fucked. You can be the best bullshitter, the handsomest, most charming guy in the world. If
you don't know your evidence, you're done. Take some time off, and go home early.
You do have to depend on the police. If you don't have good law enforcement out there, you
can't make a silk purse out of a sow's ear sort of thing. We had a case here years ago. The city
manager was accused of cutting the mayor's wife's head off with a machete in front of the mayor's
house. One of the prosecutors got to the crime scene and had gone into the house when he heard
water running. He went outside on the sidewalk—this was in broad daylight—and he found one of
the police officers washing the area down, just "cleaning up," and destroying the crime scene. The
guy got acquitted, by the way.
Teifel McMann was probably in his early forties. He was an appliance salesman and
repairman. He had a little shop down off the main drag. He'd had trouble with alcohol in the past.
Teifel was drinking one morning, and he decided that he needed to go buy himself a piece of crack.
He went into a laundromat back in this black neighborhood, where there are some small-time street
drug dealers playing cards. Teifel buys his crack and leaves, but he comes walking back a few
minutes later, pissed off about the size of the rock he bought. There is a scuffle, with wildly varying
reports about who hit who, but Teifel goes down and cracks his head open on the floor. He has head
injuries, and he ends up dying shortly after paramedics arrive.
I get the case. You can imagine the cooperation I'm getting from the community around
there. Almost every witness inside and outside the place was a drug dealer or a drug buyer or a friend
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of the dealers. Except for one: There just happened to be one seventeen-year-old straight-A high
school student in there doing her mother's laundry. She put it on all of them—said all six dealers hit
him. So I charged them with manslaughter. Not any one blow killed the man, but all the blows added
up to him slamming his head into the floor and cracking his skull.
But I was having trouble. She lived in the neighborhood and was afraid to testify. There was
only one other guy I had a chance with, a guy named Hernando Nathan. He's twenty years old, no
job. If you go down there right now, he's on the corner drinking a beer. He's one of these funny
guys—jokes all the time; everybody knows him. He was interviewed by the detective for the police
department.
Let me tell you something, if you think LAPD has problems, you just haven't seen our local
police department. They are so understaffed and undertrained, it's sickening. For instance, most
people who watch television would realize that when a crime like this has been committed, the police
force is supposed to tape off the area to preserve the crime scene. Then they collect evidence, take
some photographs. This police department is reported to have told the guy who owns the laundromat
soon after the victim was removed to "just mop it up." So there was no preservation of the crime
scene, not photograph number one.
After the detectives interview the various witnesses, I'm supposed to distribute these reports
of the interviews to the defense lawyers. There are six defendants, six defense lawyers. David Farley,
the detective in charge of this case, was not on time giving me the reports. I sent him two letters
saying, "Look, I've got the defense lawyers on my back. You need to give me the reports."
All of a sudden, the date is set for Farley's deposition. Depositions were a gas in and of
themselves, with seven lawyers around the table for every witness. Farley shows up for deposition
with the reports. There are six packets, one for each defense lawyer, containing the witness reports
we were missing. Hernando Nathan's is one of these. Farley has a copy for everybody but me. I say,
“I’ll get it later. Let's just go. Let's do it.”
A month later, the trial date is set. I have witness problems. Some of the defendants have
ended up pleading to a lesser charge and have become witnesses for the prosecution, but as you can
imagine, everyone's version of what happened that day is different. When you use a co-defendant,
there is always the argument in the jurors' minds that this witness has been given incentive. But then
there's old Hernando, standing right there outside the plate-glass window looking into the
laundromat. The weekend before the trial, I finally get hold of Farley, and I say, "Let's get together
and prepare. I know what's in them, but I need you to give me the witness statements you never got
to me," and I named off a few of them. So on Saturday before the trial is to start on Monday, I get
Hernando Nathan's statement. It's a bunch of garbage, and then at the bottom of the transcript of the
statement it says in handwriting, "All six hit the man." I had talked to Hernando in the preceding
months, and he would say, "Oh no, man. I didn't see nothing, man. I didn't see nothing. Nothing,
man." But I realized that I needed something up there besides my high school girl, so I decided to put
Hernando on the stand anyway, let him say that, and then impeach him with his own sworn
statement.
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So I get Hernando on the stand. "I didn't see nothing, man. C'mon, what you doing to me? I
didn't see nothing, man."
"Hernando, 'All six hit the man,' didn't they?"
"No, man."
“Do you remember giving a written statement?”
"Yeah, man. I remember, yeah."
"Isn't this what you swore to?" So I read it out, line by line, sentence by sentence. I get to the
last sentence. "And then you told the officer, 'All six hit the man.'"
"Objection!" The defense attorney gets up. We go to the bench. His copy doesn't have the
last line written on it. I'm saying, "Wait a minute, wait a minute." I look at his copy. Oh my God! I'm
in big, big trouble. It wasn't even Hernando's handwriting. It's the cop's.
Then the defense made what in my opinion was a strategic error. He moved for a mistrial,
which means the case is over, but the defendant can be retried. The judge granted the mistrial. He
brought the cop over out of the jury's presence, and Farley says, "I don't know how that got there.
Wow, I don't know. Wow, man, wow. I can't explain that."
"Is that your handwriting?" the judge asked him.
"Yeah."
"What do you mean," I said. "It's your handwriting, you put it there."
Next month, I tried the guy again. I didn't call the detective or Hernando. The guy got
convicted with the high school girl's testimony and a couple of co-defendants.' Strategically, the
defense had me on the ropes in the first trial. What they should have done was call the cop back to
the stand and rake him over the coals. Anything he said at that point was a potential lie. Instead, the
defense went for the immediate gratification of a mistrial without looking down the line.
An independent investigation was set up. Farley was tried and convicted for evidence
tampering and barred from working in law enforcement.
It's a small community. Everybody knows everybody else. So if an outside perpetrator
committed a crime on a local person, you knew the family and it was as though you were a relative
being charged with going forward and making sure that justice was served, "By God, we're going to
get that guy." That's different than it would be in a larger community. If somebody was wronged—
"My sister was raped"—I'm going to defend her honor. I'm going to get that guy. But it is something
that you have to guard against, because you lose your objectivity, and that's not good. We had a good
sheriff. He was also the local schoolbus driver. Whatever the sheriff did and however emotional he
might become, I at least tried to avoid getting that involved.
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When the local youngsters got askew of the law either for alcohol or drugs—and drugs more
importantly—in a small community, you bent over backward to help them out.
"Now, this is the last time I'm going to warn you: You get into trouble with this marijuana
one more time, and that’s it. You know, this is a crime. You can get sent to prison."
“I’m sorry. I won't do that again.” So get him all the probation you can or deferred
prosecution. I can say now, this particular guy I'm thinking about is an accountant who has an office
down the street today. He is a community-minded, responsible citizen. Except for somebody's
discretion back when, he would have a felony and wouldn't be allowed any position of trust. Again,
the sheriff upheld the law, and law enforcement couldn't condone a lot of that, but he was as
softhearted as anybody when it came to a local person being charged with something that did not
involve a violent crime. We bent over backward to keep the kids out of the prison. The prison was
right there in town, too, so you knew how tough that was going to be.
You have to separate the important stuff from the unimportant stuff. I'm a bare-bones
prosecutor. If I've got four people standing on a corner that see John Smith shoot Jane Doe and two
of them get on the stand and do a very credible job of saying that, I'm probably not going to use the
other two. I don't think the defendant can possibly deny his guilt, if that's what he's trying to do. For
the most part, the witnesses we get are not articulate or educated. Think of where most murders take
place. Think of bars and back alleys. They may be the nicest people in the world. I like to drink,
myself, so I've been found in bars. But, you know, you've got to be careful who's testifying. It's not
that they're lying. If they are not particularly educated, the defense attorney can make them look
foolish. Then the jury sits there, and instead of seeing this for what it is—maybe this guy isn't the
quickest guy in the world—they think, Maybe he's lying, maybe we should disregard his testimony.
Witnesses tend to contradict themselves on minor things. If I can get two of them that come across
quite well, I'll forget the others, because I'm not going to gain anything by putting them on the stand,
and I might lose something.
I'm not much for overkill. On the other hand, I'm not going to lose some wonderful witness,
either. If I've got a minister, a priest, and a rabbi, and I put the minister and the priest on and they
come off real good, I'm going to use the rabbi, too. But normally you don't have that. You've got
regular, real people.
Other prosecutors are the exact opposite. They want to build up every case as much as they
can. I tried a case with another one of the assistants down there, a good friend of mine, and a good,
good prosecutor. Yet, his theory on these things is the exact opposite of mine. He hurls everything he
can get his hands on.
In this case, we had the murder of a guy who ran a Mack tool truck. There's lots of money in
those tools. Thousands, maybe a hundred thousand dollars' worth of tools in each truck, at least. A
couple of yahoos decided to rob him. They set it all up. They'd called and called and tried to get this
guy. They say they'll meet him down by the railroad late at night, but they promise him a sale.
They'll buy at least 250 dollars' worth from him. The guy can make an extra fifty bucks, and he's
trying to feed his kids, so he goes. They actually shoot him right there at the meeting place by the
railroad tracks. Then one of the guys drives the truck with him in it all the way down to a small town
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fifty miles away. They take the tools and leave the truck in a field. It's dark, and no one can see it.
Unfortunately, the guy is still alive. He doesn't die until the next day, so he was probably in a lot of
pain.
Now, the defendant could argue accident—the gun went off by accident. Our guy is dead,
and the other thief is not going to testify, so we don't have anybody to refute that. He can do a lot of
things, but he's not going to be able to get out of the fact that he and his buddy actually were
involved in this act. And there's no question the victim is dead. We have plenty of good evidence to
prove this guy is guilty.
You have to understand, though, that when the police get down there, they don't know
anything. They go and they find this poor guy dead, but the facts of the case aren't put together until
a few days after that. They're doing things that are good police work but which don't mean anything
in retrospect. This time it was taking tire tracks from the other end of the field from cars that had
nothing to do with this. But they didn't know that this was not evidence at the time. This other
prosecutor I'm working with, George, is trying to put all this stuff into the case—plaster of Paris
casts of tire tracks. Faced with all this extra information, all the defense has to do is argue that maybe
there is something we don't know about. Then these jurors, who think that real trials are like on
television and who want to fancy themselves as a combination of Sherlock Holmes and Perry Mason,
they're going to solve what really happened, because all of us are just klutzes and don't know it.
That's where you get some bizarre jury verdicts. But George is throwing everything out to see what
sticks—he doesn't want to be accused of holding anything back.
The first trial, we did it his way. The first trial was a hung jury. The second trial, we did it
my way, and we got him convicted.
The insignificant grand theft of a riding lawn mower—those are the ones you lose. People
don't care. "Maybe he took the lawn mower, maybe he didn't take the lawn mower; but I don't want
to send the guy to prison for trying to mow his yard." These cases are great for the public defender
controlling the docket. If the crime just has no significance in the grand scheme of things, juries don't
want to convict them, and you're more likely to lose those. Nobody will turn a murderer or rapist
loose. O.J. may be an exception. But in the grand scheme of things, that's not going to happen. Time
after time after time, you'll get convictions ninety-five out of a hundred times.
We had an intern this summer, and we had a guy who was a career car thief coming up for
trial. He had a record that looked like the Manhattan Yellow Pages. He started back in the 1960s
stealing cars. Where you or I might call a cab to go somewhere, he'd steal a car. The state attorney's
office wanted to habitualize him, and they took him to trial, and we put the intern in to try him. The
newspaper guy sat down with me and said, "Is this like shooting fish in a barrel?" I told him, "First of
all, this is the kid's first trial. You don't want to give him a case with warts on it. You don't want his
first time at bat to be a bad experience. This defendant is a habitual felon, and he needs to go away.
You can't make a deal. There isn't a deal to be made."
The kid is worried about picking a jury, and like most greenhorns, he did overkill in his
preparation, had all these questions to ask the prospective jurors. I told him, "You don't need to try
and pick good jurors. Everybody is a good juror for somebody who will walk up right in front of
13
you, jump into your truck, and take off. What you need to do is you need to detect the squirrels." I'm
not sure that message got through.
The truth is, they are all, for the most part, pretty good juries. But you always have these few
people hidden in the general population, sprinkled throughout, the ones who will get everybody
offtrack on some little quirk of theirs, or the ones who proclaim that everything is subject to doubt. "I
think therefore I am. But how do I know I think?" Those guys. If you can get those people out, you're
all right.
As a prosecutor, you want people who are predisposed to convict. The other side wants
people who have a more open mind and are less likely to convict. People talk about how trials are a
search for the truth. That's bullshit. You're trying to stack it and they're trying to stack it, but
everybody is trying to get rid of the crazies, because you don't know what they're going to do.
Never leave a person with a bow tie on a jury. I've known that from the get-go. People with
bow ties are squirrely. You cannot predict what they're going to do. I have personal confirmation of
this. I hired this guy a couple of years ago, and he comes in with great business experience, and he
looks good in a pinstripe suit. Looked like the perfect candidate. Hired him. The second day, he
came to work in a bow tie. I went, "Oops." Boy, I was right. Oh Jesus.
There was an old saying around our prosecutor's office years ago. "In jury selection, the first
thing you do is get rid of all the P's." What that meant was you got rid of everybody whose
occupation started with the letter p. That included professors and preachers, and plumbers and
painters—professionals of every stripe. There was no rhyme or reason to it—-it was just an old
saying.
Over the years, the jury selection process has become quite an art of its own, and there is a
lot more emphasis placed on it than there ever was before. I think there is definitely some merit to
the process. A lot of lawyers, myself included to a large extent, we try cases strictly from the gut. In
jury selection, I make a lot of decisions on jurors for no other reasons than the gut—how the person
is reacting to me or not reacting to the other lawyer, or subtle things that are unspoken, not really part
of the process. It's like making up your mind about people when you first meet them. I tell people all
the time. I've made a living over twenty years now doing nothing but evaluating other people,
whether they're witnesses, jurors, or defendants.
Unfortunately, court is not always fair for the defendants. But there is one thing I have
noticed. When it gets to a jury, I'd say 95 percent of the time—maybe it's just a stroke of luck—whatever makes it happen, jurors actually do the right thing. Most of the times the decisions they
make are fairly rational, and right on the money. Most of the time if they say the guy is guilty, he's
guilty. And if he's innocent, they let him go. That's one of the few good things that surprised me
about the criminal system that actually works.
Everybody's fighting it tooth and nail, but once they get into it, people on juries take it very
seriously. They really put their heart into it. They really try to do the right thing. They know
somebody's life is on the line. Or even if it's not on the line, if it's civil, they still take it seriously and
14
try. You'll find some jurors who sleep through the whole trial, but most of them do a good job, and
that's one of the rewarding things about the law.
We had two constables who were just absolutely delightful beyond belief. At that time,
which was a while ago, the constables selected the jurors. These two fellows always decided how the
case should end and would fix the jury, considering what they thought the outcome should be.
There was a case where the prosecutor said to the judge, "I don't want this man to sit on this
jury because he can't hear.'' This guy was deaf as a board.
The judge didn't hear so well himself. The judge leaned over and he said, "WHAT?"
The prosecutor said, "He's deaf, Your Honor! He's DEAF!" So the judge went along with
that. The prosecutor is walking out, and one of the constables gets him aside and says, "God, you
made a terrible mistake. That guy was with you all the way."
Then came the day that one of the constables' friends gets a DUI. They go down to one of the
real tough bars, and they pick the jury from the guys who are still about half drunk, sitting around on
the front bench at the bar. The jury is sitting there waiting to go into the jury box, and they're
belching, and some of them go to sleep. The constables are looking at the prosecutor sitting there
across from the defendant and saying, "We got you wired on this one, sucker."
But it was an on open-and-shut case, so the jury goes in to deliberate. In about five minutes,
they're back.
"What is your verdict?"
The foreman belches a couple of times and says, "Guilty, Your Honor."
The constables are just in shock. They get the foreman of the jury afterward, and they say,
"Why did you do this?"
And the foreman of the jury says, "It takes one to know one."
***
I had a drug case where I was really disgusted. The defense attorney involved has gone on to
become a "civil rights" lawyer—at least, that's what he thinks. In mv case, he was saying, "The
police are doing horrible things to black folks! They're arresting everybody, blah, blab, blah. How
could you persecute this poor man?" This child—I even remember the defendant's name, his name
was Alphonso—was arrested on an A2-class drug charge. The minimum sentence was six to life. I
spent a lot of time and effort on this case, because it seemed to me this child deserved some
consideration. He had no record; he had a wonderful family. It looked like what happened was he
was standing out in front of his building, where people that he knows are hanging out. They are
selling drugs, but he wants to feel that "he's down with" whatever it is, or somebody bets him that he
15
can't deliver. So the undercovers come by. They make a deal with whoever the other people are. The
undercovers give the people the money, and Alphonso just takes a package and gives it to them.
His attorney takes the attitude that this is the crime of the century. The police officers are
lying. I said, "I don't think so. I think these police officers are telling the truth, and I'm going to make
you the best offer I can make. You ought to try and persuade your client to take this offer."
"No, no, no! He's innocent. He didn't do anything like that. You are persecuting him."
Some undercovers you had to watch, but this undercover, I didn't have any problem with. I
even went to my supervisor and said, "This really is a nice kid. I don't want to send him to jail for six
to life. Would you please allow me make him an offer of an A3?" So I went to battle for him,
because he made a mistake, but why don't we see if he can straighten up? I got my supervisor to
agree that I could make this offer. I went back and said, "This is the offer—take it! Please! I know
that your kid is nice. I'm convinced that he did this. But there is no reason to go to trial on this and
risk that much time in jail."
But the defense attorney was adamant, "No, no, no." He just assumed the police officers
were going to be white, and since it was up in a predominantly black area of the city, he was going to
get a jury that somehow was going to acquit this child with no record. I'm going, "Don't do this. Do
not do this." So he refused my offer. And they went to trial. And they lost. And I still remember that
mother crying. She had to be carried out of the courtroom. That lawyer looked at me, and there was
nothing he could say. "I told you not to do this."
Everything is not a political trial—it just isn't. There was nothing out of the ordinary in this
case. The officers were plain old black officers doing their job. They told me the truth. They got on
the witness stand, and the jury believed them. What can I tell you, you know? I'm still mad at him. I
couldn't believe he would do that rather than listen to me. People just think they can beat you at trial,
just because you're a woman or because you're black or because you're whatever you are. It's not true
all the time—or any of the time, actually. That was the low point for me.
It’s a terrible thing to send an innocent man to prison. How much better it is to turn a guilty
man loose than to unjustly convict an innocent man? I guess it is. I've had some guys that I've made
them deals where I thought they probably should have walked out free men instead of doing short
time, but the person representing them just would not cooperate. Sometimes a public defender or a
defense lawyer will just try and bust your ass all the time. Frankly, you end up busting theirs back.
You get irritated, but you try not to take it out on the people they represent. The defendant didn't
know this asshole lawyer he hired from Adam's housecat. Maybe the state just appointed this son of
a bitch to represent him.
Should you penalize him for that? No.
Do we? Probably, sometimes. You try not to, but we're human. The other day I made a guy
plead straight-up to stealing his own car out of the repairman's garage. It was just a piece of paper
until we finally got into court, and I really looked at him. He was just a weak-looking, nerdy kind of
guy. Knowing what I knew about his background, he probably didn't have much chance for anything
16
but to be on the fringe of life. He already had a felony conviction, and he damn sure has another one
now I felt kind of bad for him. If his lawyer had spent a little more time trying to humanize that guy
as opposed to busting my ass at every turn about whether or not I could prove my case, he never
would have got this.
I felt like maybe I'd been too hard on him. He got probation on this one, and maybe he
needed the structure of probation. I didn't feel terrible about the decisions I was making. But as it
was happening, I was thinking about the lawyer, and I knew of two or three other lawyers, and if one
of them had come to talk to me about that case, there would have been a different result.
We get to court, and the lawyer hasn't put any effort into resolving the case. When it did get
resolved, I thought to myself, It's a shame. What happened wasn't injustice. But just looking at the
guy—he was a bit of a wreck. He at least needed more attention than he got. I didn't feel bad enough
to step up to the plate for him—although I have done that on occasion, when I see somebody
dropping the ball. You try to jerk it back out of the jaws of whatever. Sometimes they won't do it.
You'd be amazed. Sometimes people are their own worst enemies.
There are many insanity-defense cases that I’ve looked at that I agreed right off the bat—
"This is a legitimate case for insanity." First of all, there is no reason for the homicide. That would
always be the first thing you'd notice. This was a senseless act—there was no reason, no motive.
I had fun with one of them for a while, negotiating a plea with a defense attorney. It was a
man who had shot his upstairs neighbors. He kept a blanket over his TV set because "they" were
sending rays through the set that were affecting him. He had a collection of 16mm movies that he
was taking of all the cars that were following him all the time. He had all this background as a pretty
crazy guy, and his attorney had all this psychiatric testimony. It was clear that this man had a serious
problem, that there really was no motive for these killings, and that he needed to be hospitalized.
Along with all his other paranoid behavior, he also had been saving tap water. He dated all of
it on the day he had bottled it, and he had the little jars of water tested, because he was convinced
that people were trying to poison him.
In working out the negotiations with the defense attorney, who is a pretty good friend of
mine, I told him, "Look, I'm leaning toward your point of view in this. I think we should offer you
the plea and let him be committed, let him go to the state hospital and be taken care of. But I have a
little bit of hesitation. Are you convinced that all of this is phony? All of this is in his head?"
"Absolutely," he says. “I’m totally convinced. There's no question about it. He's paranoid.
There's nothing wrong with all that tap water.”
"Fine," I said. "Pick out any bottle you want. You drink it, and you've got the deal."
"Are you nuts? I'm not drinking this stuff."
"Oh, it might be poisoned then, huh?"
17
But we did work out a deal.
A defense attorney was trying to develop an insanity defense for this guy who beat the shit
out of a police officer who was giving him a ticket. So the attorney got this guy from the big city
who charged $600 an hour for the first hour, including travel time, and then $450 for every hour after
the first one. It was an enormous amount of money. The guy basically showed up with two pictures.
They looked like composite CAT scans of the brain. One of them was bright colors, and the other
one had cool colors. One was a stressed brain and the other one was a "happy" brain. I've got a
psychologist, a local guy, on the stand, and he's referring to this "expert's" happy brain/sad brain
props.
I'm giving my argument to the jury, and I said, "Six hundred dollars. Lord." Then I'd go on
talking about the case, then I'd stop and say, "Six hundred dollars an hour! Ever since he told me
that, I've been trying to think of some other profession that pays six hundred dollars an hour, and I
can't think of anything that doesn't require somebody to take off their clothes." I can't call him a
whore, but I can make that kind of comment. The judge starts laughing. The jury looks at me stonefaced.
I won the case, but I thought my line that allowed me to call a doctor a whore in court was
brilliant. But nobody laughed. If they did get it, they didn't let me know.
We had a couple of whorehouses in town which I finally closed, simply because
whorehouses were a magnet for crime. I had the personal feeling that there is no worse degradation
of women than to turn them into whores. In any event, one of the freelance girls was this attractive
and very bright-looking gal. She got arrested and went through reformation with a little backsliding.
But a young man who came from a very responsible family fell in love with this girl.
Her pimp resented this. So the two men had a classic Hollywood Wild West shootout down
on the avenue that was frequented by prostitutes. The pimp had a revolver. The young man had a
rifle—which doesn't really speak too well for the intelligence of the pimp, who was killed in the
shooting.
This case comes on my desk. Of course, I think the captain of detectives kind of enjoyed the
anguish that this prosecutor had in looking at this case. This state has always had the theory that
there are some people who, by the way they live, deserve to be killed. We were way ahead of people
who now talk about the battered-wife syndrome. It was always considered appropriate for some
women to shoot their spouses if need be, when they'd had enough of it.
It's kind of hard to work up much jury sympathy for the death of a pimp, right? Particularly
when you have this young man who was a good fellow. At that time, we still had a dueling statute, so
I said, "By God, I'm going to charge this kid with dueling." Nobody had filed a dueling charge,
maybe ever. That statute worked out very well. He got a minimal sentence and spent a short time in
incarceration. As we all expected, he rehabilitated and came back.
Unfortunately, after the press had a certain amount of fun, as you might expect, with the
dueling charge, the legislature wiped out the dueling statute. Part of the reason I resented that was
18
that we could have used that dueling statute quite a bit. You didn't have to prove the intent to cause
bodily harm or anything about the defendant's state of mind as one must when involved in a
homicide charge. It was all very simple. Getting rid of that dueling statute was a mistake.
Tried a case of drunk-driving manslaughter: The accident occurred on the defendant's side of
the road. He hit a motorcycle in the lane that he was supposed to be in and killed the motorcycle
driver. The skid marks were such that if you analyzed them and measured the vehicle that the
defendant was driving, the ass of his vehicle was in the oncoming lane, which meant that he just
came back to his lane from the wrong lane. The motorcyclist, in an attempt to get away from him,
had cut across into the other lane. Then the car had swerved back where he was supposed to be, and
there was nothing the motorcyclist could do.
I had a photograph of the car the defendant was driving. The perspective of the car was of the
car turning left. I needed the exact opposite. I needed somebody to take the negative, flip it, and
make me another picture—but it's hard, there's never enough time, and I didn't get around to it till
trial. I had a picture of the highway and the skid marks. What I wanted to do was to hold the rightturning vehicle up to the skid marks and show that he had to have been coming back from the wrong
side of the road. I'm in my office before going to court, and I held the picture up to the window to see
if you could see through it. That way I could get the reverse. It looked like it would work okay for
demonstration purposes.
Some cases just take on a life of their own. The community gets incensed at somebody. This
case was one of those. The courtroom was packed every day. The defense lawyer was a very cagey,
clever guy. Not as clever as he thinks, but his weakness is that he thinks he's so much smarter than
everyone else. I get to my closing arguments that day, and I told the jury, "I didn't get this snapshot
of the car redone like I should have. I waited around until it was too late. In order for you to see what
I want you to see, you're going to have to look through the back of the photograph while I hold it up
to the light." I held that picture up, and the light shone through the picture of the car sitting in the
skid marks. It was so weird—the car was almost ghostly. There was no noise in the courtroom. It
was like I had a piece of Twilight Zone in my hand. "If you look closely, you'll see the last thing the
victim ever saw in this world." They were so focused, rapt. It was an accident. I didn't intend it to be
that way, but it turned out to be one of the most powerful exhibits I've ever held up to a jury. I can't
tell you how spooky it was. The hair on my arms stood up. He got sixteen years for that conviction.
We tried a guy here ten years or so ago for killing his wife. Circumstantial case. Jury hung.
He and his wife were separated, but we knew they were together that night to look for a place for
their five-year-old to start kindergarten. They went to a couple of places to check out the schools,
then they went back to the house where she lived, and the kid went to bed. The child came down the
next morning, whenever kids get up, and his mother was laying there in the kitchen. She'd been
beaten to death. This guy said he was there, went home, and didn't know anything. We tried him
anyway, the jury hung, and the judge granted a motion for acquittal. He was a judge that, in my
opinion, just liked to clear his docket.
About six or eight years go by. This guy is a free man. I get a call from a friend who is a
prosecuting attorney in Missoula, Montana. "Hey, you know a guy named John Krassler?"
19
"John Krassler. Let me think about that. John Krassler? We have so many cases here."
John Krassler had walked into Sandy's office out west one day, and he asked if he could talk
to the prosecutor. His son was now thirteen or fourteen years old. He intimated to Sandy that he had
murdered his wife back here. Sandy didn't know if this guy was crazy or what. So he calls me, and I
say, "Oh yeah. I know all about that guy." I told Sandy what had happened. I said, "Sandy, can you
get him back?"
"Yeah.''
"Get him back. Read him his Miranda rights, even though he's been acquitted. Try and tape
it, and get a statement from him because he took the stand in his own defense and denied the murder,
so if we can get him at least with perjury it would be something."
Sandy did it. He had the deputy sheriff there. We got the statement, brought him back on the
perjury charge. The unique thing that was done—we charged him with felonious assault with his son
as the victim, the theory being that when he beat his wife to death, he knew that the son would come
down and find her, therefore the psychological impact he had had was in essence an assault. We
convicted him on that, and he's got a sentence where he'll have to do ten to thirteen years, which isn't
a whole lot less than he would have done for the homicide.
I had a friend of mine I play fast-pitch softball with—a little younger than I was, maybe by
ten years. I didn't know much about him except that he was a very interesting guy. Probably had a
high school education. I didn't believe he had any money. Came from no money. I knew he went to a
fast-pitch tournament for guys forty and over in Las Vegas three or four years ago. A couple older
guys—sixty-five or seventy years old, friends of his—came along as coaches. I found out later that
he paid for their tickets and he paid for their rooms, because they didn't have the money to make the
trip on their own. Although I knew he had a heart of gold, what I didn't know until after he died was
that he was a self-made millionaire. I knew he'd work at the Dairy Queen and I knew he had these
odd properties that he'd fix up and paint, do all the work himself. As time went on, he became very
successful. He and his sister ended up with a health care center for elderly people. Home care thing.
He was just in everything.
He's fixing up one of his houses that he rented out, and some guys were next door. He was
their landlord, too. They decided that the landlord's probably got money. One guy went over and
killed him. Didn't get a cent. He had a wallet in his truck. There was twenty bucks in his wallet.
But all these guys in the house were ne'er-do-wells. Jesus Christ, everybody's on drugs;
everybody else is drunk. We had a real mess. We were convinced that we knew who did it. We had
one guy who was going to be our key witness who told us that the guy we suspected committed the
murder. But then the witness failed the trace metal detector test. That meant my witness had recently
fired a weapon. He might just as easily have been the murderer as the suspect. Of course, all these
people had guns. They all have guns—it's just a fact of life. The guy who was a suspect, we didn't get
hold of him until three or four days later. So, of course, his test doesn't mean anything.
20
This guy's wife is decimated. I could look at it objectively and say, "Hey, I believe he did it,
but I don't think we're going to win." But I couldn't tell her that. If a defense attorney takes a certain
tactic, we could get manslaughter, but we can't count on it. None of our witnesses are any good. We
got some critical evidence that helps us, but I just got worried to death that the jury is going to look
at these witnesses and say they're just criminals, that the evidence was probably planted. Proof
beyond a reasonable doubt means they got to believe these people beyond a reasonable doubt to put
this guy in the electric chair. And there's a real good attorney on the other side.
When this thing first happened and I got the file, one of the policemen who was a friend of
mine on the homicide squad said, "Mike, how we got this guy is we got a tip about where he was
through the FBI. We worked with the FBI, because they knew he was going to be driving from
Florida to Maine. That night we grabbed him, one of the FBI guys said something about a tape.
Somebody has a tape of the defendant admitting the murder."
So I call the FBI guys. My friend with them says, "I don't know if there is any truth to it.
You've got to keep this quiet for a while, but we knew about your suspect through a paid informant
The paid informant told me that there was some sort of a tape, but, Mike, I never pay any attention to
these guys."
"I need to talk to this guy," I said. "Give me the guy's name."
When my FBI contact told me the informant's name, I remembered the guy. I'd tried him for
murder twenty-something years ago. The only reason I remember him is that he was a juvenile at the
time, and we held him such a long time as a juvenile that he was tried in adult court, and his defense
was arguing speedy trial. So anyway, they gave me his number
These guys are not bankers. They don't keep regular hours. They have beeper numbers. It
takes me a while, but I finally get hold of the guy. He's going to go back with me, doesn't want to
talk then. He gets back with me eventually. He said, "I heard there was a tape, but there wasn't. I
thought it had been destroyed, and it was. The person who had it destroyed it, and there is no tape."
I'm thinking, If there really is a tape, it's never been destroyed, because somebody in that
group of people knows its value. This is something that a prosecutor or a policeman would want;
therefore, hang on to it. If it ever existed, I found it hard to believe that it had been destroyed—at
least intentionally.
Okay. Two or three months go by, and this case isn't getting any better. So I call this guy
again. We still had never met. Finally, I convince him to come in. He comes in one night at the
office, and he has a buddy with him. Honest to God, both of these guys are as big as houses, with
arms like barrels from twenty years of lifting weights in prison. I am sitting there a little wary, but
I'm getting along with them okay. I don't know who this other guy is. So the first guy is sitting there
talking to me, and he says, "Okay, there is a tape."
After the shooting, this kid who shot my softball buddy took off and stayed with these people
who are twenty years older than him and who are into much bigger things than he has ever imagined.
In the course of it, there was a woman there who put a tape recorder in her purse and sat down and
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talked to the kid. The whole tape didn't last but three minutes, maybe four, something like that. Of
course, it's crackling, and both of them get so excited, they talk in a high voice with accents, so most
of it is hard to decipher. Plus, it's muffled inside the purse. But basically she says, "What happened?"
And he talks about killing this guy. I haven't heard it, but these two guys are willing to give it to me.
But I've got to do something for the guy I'm talking to, something for the friend he brought, and
something for a guy in prison.
"Look," I said. "I can do something for you. I'll talk to the judge, I can do that. For this guy
here, I'm going to have to talk to the police department. I can't do anything for the guy in prison—I
don't have that authority—but I will write a letter to the governor." So we had this long drawn out
negotiation. It was reasonable. In fact, the one guy just wanted off probation. And the judge readily
agreed to that. He had a three-year sentence in prison, he did two years, and they shocked him out.
He only had a year to go, and he’d done three or four months of that. He just didn't want to keep
coming down every month to the courthouse to check in with the probation officer. It was simple.
The other guy was involved with a drug deal, and the cops had already told him, "You turn three
cases for us, and we won't charge you." He said, "Will this count as a case? This has nothing to do
with the drugs and all that, but I want this to count in my three cases." So I called the police, and they
said okay. The guv in prison, I couldn't help. But we tried.
Finally, they brought me the tape. I'm telling you, it was great. I couldn't believe it. This case
went from a total loser, a not guilty, to "If we can get this tape in, it should be winner."
It took another four months. The defendant fired his attorneys and hired new ones, but he
ended up pleading to life with no parole hearing until he'd completed thirty-three years of his
sentence. He'll probably do forty-five years, if he lives that long, and he probably won't.
I prosecuted a murder case one time in which this man had been shot with a pistol. We
thought we knew who did it, but we weren't sure. We thought we knew who helped out with the
murder. So we got the accomplice to come down to the state attorney's office, and ran him on a
polygraph. I'm sitting there watching the polygraph machine, and we get around to the golden
question: "Do you know where the gun is?" This guy literally knocked the needle off the machine. It
was just incredible. It went ker-wham! Everybody got a little ink on them. After the polygraph was
over, I talked to the examiner and the examiner said, "You know, I really don't think this guy had
anything to do with it. But I do believe that he knows where that gun is."
I went up to my office and had my secretary type up an indictment for first-degree murder
with this guy's name on it and a grant of immunity with this guy's name on it. So I brought him up to
the office, and I said, "You know, I'm in a tough situation because you flunked the polygraph exam,
and we're going to have to make some decision about what to do with you. Rather than me make this
decision, I'm going to let you make it for me. I've got two pieces of paper here. One is an indictment
for first-degree murder. The other one is a grant of immunity. I want the gun. You pick out which of
these two pieces of paper you want." We had the gun in about thirty minutes. Sometimes you got to
do what you got to do. I like to give people an option. They can choose whichever one they like.
I had a guy who killed this young boy with a sawed-off .22 rifle at a family gathering. He
had a fight and a screaming match between him and his wife, so he runs and gets this gun. The kid is
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sleeping on the couch. This guy is pointing the gun at the head of this child and screaming with his
wife and finally pulls the trigger. Gets up on the witness stand and says that it was all an accident. "It
just went off by accident."
"Show me how that's possible," I said, and I handed him the rifle in court. This particular
rifle was a bolt-action single-shot .22. The first thing you have to do is open the bolt and put a bullet
in, close the bolt, and ram it down. Then you had to pull a cocking lever. It was a really old weapon,
and you had to really pull the trigger. He claimed that he never pulled the cocking lever. "Never did."
I handed it to him and said, "Operate that bolt and pull that trigger as many times as you want for this
jury, and let's hear the click." He did it four or five times, and it didn't fire. "How many more times
do you want to try it?" He had nothing to say. I took the weapon away from him and put it down.
You get these people with a weird story of how the gun went off. I had one of them claim
that he took the gun out of his pocket, an automatic. He was holding it over the top of the receiver,
and he just hit the fellow over the head with the butt. It happened to go off and kill the guy. "Let's
see. Came down and hit him. It fired. Never had his hand on the trigger at all." First of all, it had a
safety, so it couldn't fire without the trigger being pulled. Number two, if it had gone off that way his
hand would have been burned with the gases; the slide would have bitten him. Never got a mark on
his hand.
I love the ones who say, "I never pulled the trigger." What most people don't realize is that a
revolver has a hammer-block safety in it. If you're not pulling the trigger all the way back, the
hammer will drop, but it won't fire. The firing pin can't hit that shell unless you're holding the trigger
back. If you hit it with a brick, it won't fire. I would have people demonstrate that. You'd take a
pencil and drop it down the barrel and cock it and hit it. The hammer falls, but the pencil never
moves. If you really pull the trigger, it will knock the pencil right out the end of the barrel. But a lot
of people don't think there is a safety in a revolver. So they have this story about how this went off
accidentally. It dropped and fell and went off.
I always had fun with the weapons. I would hand them to the defendant. Let him have it in
his hands. The deputies would get upset when I'd give them a butcher knife.
We had prison murders at the state prison here in town. Those defendants were always very
cooperative. I'd have them come down: "Show me, here on the floor of the courtroom, how you were
wrestling around with this guy and you're claiming self-defense in his death." Pretty soon they're
jumping up and down and getting into the whole scene and how bad the fight went back and forth.
Before you know it, they've demonstrated exactly how they stabbed the other guy, who was
unarmed.
***
I just have a hard time with folks who get attached to a legal pad in a courtroom and who
read almost everything, read all of their questions. They can't just stand there on their own two feet,
walk around, remember, and listen to the answers to the questions. Too many of them haven't even
heard the answer to the first question, and they're asking their next one. They just don't listen. They
get too involved with their own performance instead of paying attention to the witness. When you
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get down to final arguments, you can try to be the star, but not during cross-examination. Some of
the greatest questions in the world are: "What happened next?" "Then what did you do?" The
question isn't anything. You want that answer to come out in court. But it's hard to instill the patience
and the ability to listen in some of these young prosecutors if they haven't really seen a lot of cases
and spent the time watching other people try cases. Many times, you can sense that a witness is going
to say something more. Just let them. See what happens.
I've had defendants on the stand on more than one occasion where the defense attorney is
trying to soften the criminal record of the defendant. "Now, you've had convictions in the past,
haven't you?" As soon as they start to talk about it, I would reach in my file and pull out some
documents and look at them while the guy answered. He'd say, "Well, I've had a few." And I'd give
him a look. He'd mention part of his record, and I'd turn pages. "And that's all." I'd stop and look up
in disbelief. "Oh, and then there was that other on ..." They'd start going through their entire record.
I've had fun with those little tricks.
Many times, you find a defendant on the stand makes a really bad witness for himself. They
then have the opportunity to come out with more incredible statements that will really hurt
themselves.
I had one who was being examined by his own defense attorney. They were trying to sell
their version of this entire story: This parolee who had just gotten out of prison snuck into this bar on
a cold winter night, just to get in out of the snow and the sleet and the rain, just to be protected.
There was nowhere else he could go. The defense attorney leads his client through this whole thing,
and he finally says, "And why did you break in to that bar?"
"To steal the money."
Of course, I didn't cross-examine him at all. I didn't want to destroy his credibility. I didn't
want to show that he had a terrible, horrible record, and you couldn't believe a word he said. I wanted
the jury to buy that story that he broke into the bar to steal that money.
A man murdered his wife of twenty-five years—beat her to death. Then he went off to see
the girlfriend he'd found at his job with the Department of Transportation. The two of them went to
her son's Little League baseball game. The guy drove home, stuffed his dead wife in the back of their
minivan, and drove up to the hospital. Maybe he had some idea he could deliver her to the
emergency room and everything would look accidental, but he chickened out on that one and never
quite made it to the emergency room. He put the car in the parking lot and left. The body wasn't
found until days later, when passersby began to notice the odor.
He hires a big defense attorney. Months earlier, this attorney had a case where he defended a
guy who murdered his wife and got a not guilty. I feel certain the publicity surrounding that case got
him hired for this one. The guy pays this lawyer a ton of money. The defense star comes down with
his partner and co-counsel. They say to me, "Hey, man, what's the deal going to be?" “He can plead
to second-degree murder,” I said, "and according to the sentencing guidelines, he'll probably get
twenty-two years."
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"You're out of your mind," they said. "How about twelve to fifteen years?"
"No. The grand jury indicted him for first degree, the family is agreeable to second, but I'm
not going lower than twenty-two years."
They say no, and we go to trial. The case is getting lots of media attention. My guess is that
the defendant's attorney was calling them.
After I proved my case, the defendant took the stand and admitted doing it, but he said it was
self-defense. The problem is there were four huge, distinct blows to the woman's head. So I said,
"Mr. Hiller, after the first blow to her head, when she was on her knees, did you still feel like your
life was in danger? After the second blow, was she still threatening you with bodily harm?" I
crucified him in cross-examination. It was ugly. I'd love to read it again myself. "Mr. Hiller, when
you left your girlfriend's house, did you kiss her goodnight?" He didn't answer me, or he would
dodge the question. So I had to keep saying over and over again, "Answer my question, Mr. Hiller.
Did you kiss your girlfriend goodnight?"
Finally, he croaks out, "Yes." It was the perfect picture. He kisses her goodnight, then hurries
home to stuff the body of his dead wife into the back of the minivan to get rid of the evidence.
The jury came back in eighteen minutes. Guilty, first-degree murder. The defense co-counsel
was across the street at Little Michael's getting a sandwich. He missed the verdict entirely.
12.4. Example: What Can (Should)(Must) Defense Counsel Withhold from
the Prosecution in Ineffective Assistance of Counsel Proceedings?
Available as pdf at the course website.
12.5. Example: Free Advice from a PD (as posted on Craigslist.com)
First, let me say I love my job and it is a privilege to work for my clients. I wish I could do
more for them. That being said, there are a few things that need to be discussed.
You have the right to remain silent. So SHUT THE FUCK UP. Those cops are completely
serious when they say your statements can and will be used against you. There’s just no need to
babble on like it’s a drink and dial session. They are just pretending to like you and be interested in
you. When you come to court, consider your dress. If you’re charged with a DUI, don’t wear a
Budweiser shirt. If you have some miscellaneous drug charge, think twice about clothing with a
marijuana leaf on it or a t-shirt with the “UniBonger” on it. Long sleeves are very nice for covering
tattoos and track marks. Try not to be visibly drunk when you show up.
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Consider bathing and brushing your teeth. This is just as a courtesy to me who has to stand by
you in court. Smoking 5 generic cigarettes to cover up your bad breath is not the same as brushing.
Try not to cough and spit on me while you speak and further transmit your strep, flu, and hepatitis A
through Z.
I’m a lawyer, not your fairy godmother. I probably won’t find a loophole or technicality for
you, so don’t be pissed off. I didn’t beat up your girlfriend, steal that car, rob that liquor store, sell that
crystal meth, or rape that 13-year-old. By the time we meet, much of your fate has been sealed, so
don’t be too surprised by your limited options and that I’m the one telling you about them.
Don’t think you’ll improve my interest in your case by yelling at me, telling me I’m not doing
anything for you, calling me a public pretender or complaining to my supervisor. This does not inspire
me—it makes me hate you and want to work with you even less.
It does not help if you leave me nine messages in 17 minutes. Especially if you leave them all
on Saturday night and early Sunday morning. This just makes me want to stab you in the eye when we
finally meet.
For the guys: Don’t think I’m amused when you flirt or offer to “do me.” You can’t
successfully rob a convenience store, forge a signature, pawn stolen merchandise, get through a day
without drinking, control your temper, or talk your way out of a routine traffic stop. I figure your
performance in other areas is just as spectacular, and the thought of your shriveled unwashed body
near me makes me want to kill you and then myself.
For the girls: I know your life is rougher than mine and you have no resources. I’m not going to
insult you by suggesting you leave your abusive pimp/boyfriend, that you stop taking meth, or that
your stop stealing shit. I do wish you’d stop beating the crap out of your kids and leaving your needles
out for them to play with because you aren’t allowing them to have a life that is any better than yours.
For the morons: Your second grade teacher was right—“neatness counts.” Just clean up! When
you rob the store, don’t leave your wallet. When you drive into the front of the bank, don’t leave the
front license plate. When you rape/assault/rob a woman on the street, don’t leave behind your cell
phone. After you abuse your girlfriend, don’t leave a note saying that you’re sorry.
If you are being chased by the cops and you have dope in your pocket, dump it. These cops are
not geniuses. They are out of shape and want to go to Krispy Kreme and most of all go home. They
will not scour the woods or the streets for your 2 grams of meth. But they will check your pockets,
idiot. 2 grams is not worth six months of jail.
Don’t be offended and say you were harassed because the security was following you all over
the store. Girl, you were wearing an electronic ankle bracelet with your mini skirt. And you were
stealing. That’s not harassment, that’s good store security.
And those kids you churn out: how is it possible? You’re out there breeding like feral cats.
What exactly is the attraction of having sex with other meth addicts? You are lacking in the most
basic aspects of hygiene, deathly pale, greasy, grey-toothed, twitchy and covered with open sores.
How can you be having sex? You make my baby-whoring crackhead clients look positively radiant by
comparison.
“I didn't put it all the way in.” Not a defense.
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“All the money is gone now.” Not a defense.
“The bitch deserved it.” Not a defense.
“But that dope was so stepped on, I barely got high.” Not a defense.
“She didn't look thirteen.” Possibly a defense; it depends.
“She didn't look six.” Never a defense, you just need to die.
For those rare clients that say thank-you, leave a voice mail, send a card or flowers, you are
very welcome. I keep them all, and they keep me going more than my pitiful COLA increase.
For the idiots who ask me how I sleep at night: I sleep just fine, thank you. There's nothing
wrong with any of my clients that could not have been fixed with money or the presence of at least
one caring adult in their lives. But that window has closed, and that loss diminishes us all.
Example 9:6: Counseling at the Limits of Law
You work at a regulatory counseling law firm. One of the partners sends you this memo.
*
*
*
*
*
As you know, our firm provides environmental regulatory compliance counseling—
and no litigation work. Our biggest client, Anaconda Agricultural, manufactures fertilizers
and other chemical products for farming. Next week we’re meeting with Anaconda on two
issues.
First, Anaconda wants to breach a contract for its purchase of chemicals used in a product
line suffering from diminished market demand. Because of unfortunate drafting, Anaconda
has no unconditional right to terminate for two more years, although Anaconda can
terminate in thirty days if the supplier breaches. There are no grounds for declaring
supplier breach. My initial inclination is to advise Anaconda to just go ahead and breach
themselves. The supplier must mitigate damages by selling to other buyers. The chemical’s
current market price is 95% of the contract price, and there are plenty of other buyers in
the state. The supplier will mitigate its damages by selling elsewhere. Moreover, the
supplier’s enforcement of the breach of contract won’t be easy. Local courts are slow.
Litigation is expensive. Neither side can win attorneys fees in this matter. The judges force
civil litigants to settle via mandatory mediations. In short, as a practical matter, the
expected liability for breach is nearly zero because enforcement is cumbersome and
expensive. The supply company can’t economically sue over breach. I’m inclined to
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counsel Anaconda that, for all those reasons, breaching is simply good business.
Second, Anaconda is worried about its discharge of ammonia into a nearby river. Federal
and state regulations, both civil and criminal, permit a maximum of 0.50 grams/liter of
ammonia flowing from the plant. Anaconda’s discharge now averages 0.65 grams/liter and
occasionally spikes even higher. We know from informal sources that (1) due to tight
budgets the regulatory agencies ignore violations under 0.75 grams/liter and their
inspections are rare; and (2) under unwritten agency policies violators in the 0.51-0.75
grams/liter range are given warnings before civil penalties are applied, and only violators in
range of 1.50 grams/liter or higher are the subject of criminal prosecutions. I suppose
there’s no harm in informing Anaconda of all that.
What do Model Rules 1.2 and 2.1 permit us to do here?
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