14. CRIMINAL LITIGATION
14.3. 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:
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"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
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a couple of occasions. The baby-sitter 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.
"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-style-fire-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
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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 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. Age-old 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
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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 prosecutor must appear
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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.
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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, 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
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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 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
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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
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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.
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 codefendants.' 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
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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.
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
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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 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
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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
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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 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 getgo. 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
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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 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."
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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 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."
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"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.
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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 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.
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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?"
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 stone-faced.
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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 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
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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 right-turning 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,
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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?"
"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—sixtyfive or seventy years old, friends of his—came along as coaches. I found out later
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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.
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."
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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 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
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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."
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I went up to my office and had my secretary type up an indictment for firstdegree 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 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
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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 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
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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 cocounsel. They say to me, "Hey, man, what's the deal going to be?" “He can plead to
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second-degree murder,” I said, "and according to the sentencing guidelines, he'll
probably get twenty-two years."
"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.
14.4. Example: Criminal Defense Attorneys in Their Own
Words
The following is from 30 LOYOLA LAW REVIEW, Symposium: The
Responsibilities of Criminal Defense Attorneys. How do these lawyers envision 1)
their roles; 2) their struggles; 3) the prosecutors?
THE RESPONSIBILITY OF A CRIMINAL DEFENSE ATTORNEY
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by Dan K. Webb1
I take great comfort in the title of this Symposium by the Loyola of Los
Angeles Law School: Responsibilities of the Criminal Defense Attorney. I read and
hear much discussion about criminal defense attorneys, but too often it seems
focused on our battles at trial, our fees, the publicity that accompanies our cases, or
gossip about personal lifestyles.
Criminal defense attorneys, indeed all participants in the criminal justice
system, live in an era of heightened scrutiny, particularly as a result of increased
access to courtrooms by the electronic media. A phenomenon like Court TV was
barely imaginable when I began my career as an attorney, but television cameras in
the courtroom are now an accepted part of our judicial landscape. I suspect that one
by-product of this increased media access to the judicial system is that people are
changing their attitudes about the personnel who make the court system function.
Judges, witnesses, and especially attorneys are now the subject of “on the spot”
analysis of a kind formerly reserved for stage actors or professional athletes. As is
true of actors and athletes, those who are less competent freely criticize the efforts of
those on the public stage.
Public attention to the legal system, of course, is not all bad. To the contrary,
this country has a constitutional heritage of public scrutiny for its judicial
proceedings, especially when issues of personal liberty are at stake. However, I feel
strongly that the media has shown an increasing tendency to sensationalize the work
done by criminal defense attorneys, to remove it from the ambit of “responsibility,”
and to treat our efforts as though we practiced a new form of entertainment. The
drama and intrigue inherent in a criminal trial are natural attractions to the media,
just as they are often the feature that attract young lawyers to serve as criminal
defense counsel. The challenge we face, however, is to remain mindful of the
responsibilities that attend this job of being counsel for the accused.
This job can be difficult to do in the glare of public attention, particularly when
the media issues daily reviews of our trial efforts. Arguments and examinations are
1
Chairman of Winston & Strawn's litigation department and a member of the firm's executive
committee; joined Winston & Strawn in 1985 as a partner, after serving as the United States attorney
for the Northern District of Illinois; Fellow of the International Academy of Trial Lawyers and the
American College of Trial Lawyers; co-author of Corporate Internal Investigation (Law Journal
Seminars Press, 1993).
437
assessed in terms formerly reserved for movie or restaurant reviews. “Grades” are
awarded for our efforts. Predictions are made about whether a particular tactic will
succeed. Hours of intense trial examination are condensed into sound- bite snippets
designed for the evening news. The public is asked to draw ultimate conclusions of
guilt or innocence based on fractional portions of the evidence actually received at
trial. Increasingly, people who report on criminal litigation are more concerned with
style than substance, more conditioned to seek “a new angle” than to seek both sides
of a story.
All of this, I fear, subtly teaches us the wrong lesson. When a criminal case
receives substantial media attention, it is probably because the nature of the crime or
the identity of the defendant makes for a “good story.” Perhaps unavoidably, the
media seeks to portray the story as a confrontation between good and evil, between
truth and lies, between justice and lawlessness. As the coverage intensifies, the
lawyers are placed on opposing sides of the drama: one lawyer is good, a seeker of
truth, a champion of justice. Inevitably, the opposing counsel must be cast in the role
of the dark side, the obfuscator, the trickster, the champion of loopholes and
technicalities. Usually—but not always—the media assigns these roles in a
traditional way, such that the prosecutor is “good” and the defense attorney is “bad.”
In an era when increased media attention has failed to produce an increased
appreciation for the roles played by a prosecutor and a defense attorney, such
polarized caricatures abound.
It has been my good fortune to serve as a prosecutor during my legal career,
first as an assistant United States attorney, and later as United States attorney in
Chicago. I know what it means to accept the burden of proof when presenting a
criminal case to a jury. I know that prosecutors must constantly be vigilant against
the notion that, by virtue of their office, they are entitled to do whatever it takes to
win. I understand the pressures to win that prosecutors may encounter, whether from
zealous law enforcement agents, aggrieved victims, or from media attention to their
case.
Likewise, a decade of experience as a criminal defense attorney has taught me
the pressures that bear on criminal defense counsel. The challenge I face, that all
criminal defense counsel face, is to separate the pressures that matter from those that
must be irrelevant if we are to correctly do our job. The pressure brought about by
public scrutiny should not matter. The pressure brought about by “instant analysis”
of our efforts must be ignored. The pressure to live up to the roles assigned by the
media must be resisted.
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The only pressure that I care about is the pressure to accept, acknowledge, and
discharge my responsibilities as a criminal defense attorney. First is the
responsibility I bear to my clients. Clients face enormous challenges. Clients may
feel that their lives are shattered and that there is no hope for future happiness.
Clients may feel abandoned by friends and shunned by the community. If clients are
convinced of their innocence they often feel victimized by a system they formerly
respected; if they acknowledge guilt, they often suffer tremendous shame for the
disgrace they feel they have brought upon their family. Virtually no one seems to
offer a reason to hope for the future.
My responsibility to my clients is clear. I must restore my clients' willingness
to go forward and endure what is to come. I must allow them the opportunity to
express concerns and frustrations. I must listen to their side of the story and work to
assure them that there is at least one person who does not intend to pass judgment.
Most of all, I must give my clients confidence that if their case goes to trial, I will do
everything within the law to convince the jury or judge that the prosecutor has failed
to establish guilt beyond a reasonable doubt.
I cannot be a client's psychiatrist or emotional counselor, but I must be a fixed
point of reference for that client. I must work to assure that the client understands the
situation, understands the nature of the charges, and makes pivotal decisions in a
rational and informed manner.
Next is my responsibility to the criminal justice system. In this regard, I view
my role in rather simple terms. The system works best when I do my best. As a
prosecutor, I never hoped for a lazy or incompetent defense attorney as my opponent.
I was never comfortable if my opponent was not doing a competent job because I
fully appreciated the awesome power I exercised as a prosecutor, and I knew well the
ability I had to deprive criminal defendants of their liberty. If I won a conviction, I
wanted the assurance that justice was done. That assurance comes only after the
adversarial system has been put to the test by an aggressive and energetic defense
attorney that challenges the prosecution in meeting their burden of proof.
Last, but certainly equal to the first two, is my responsibility to myself. I am a
trial lawyer by choice; whatever other skills or gifts I may have, I know that being a
trial lawyer is the only way I wish to make a living. Because I have been fortunate
enough to attain success in my career, I am sometimes asked the secret of that
success. Perhaps the questioner expects a lecture about the fundamentals of crossexamination or a discussion of effective trial strategies, but those elements are
secondary. The reason I have achieved a level of success is simple; trial work is what
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I want to do. I am motivated to succeed, which means that I am motivated to work
hard. I am like a great many defense counsel; I have won some and I have lost a few.
But, I am able to assure myself that in each and every case I worked as hard as I
could, I used all my professional skills to the best of my ability, and I gave my client
thorough and effective representation. Ultimately, in our adversarial system, I cannot
control the outcome of a verdict. I can, however, control the amount of effort and
care I devote to a criminal defendant's case.
These three responsibilities—to the client, to the system, and to one's self—are
familiar territory for law students and lawyers. In an abstract world, there can be no
controversy associated with accepting and discharging these responsibilities. But we
do not live in an abstract world, and the public attention devoted to our efforts as
criminal defense attorneys tends to distort our views of these responsibilities. These
three responsibilities are like the legs of a stool; if one leg is too short or too long,
none of them can perform their intended function. If criminal defense counsel
overemphasizes or underemphasizes any one of these responsibilities, they run a
significant risk of failing to do an effective job.
Simply put, criminal defense counsel must have the courage and fortitude to
discharge their responsibilities as they see fit, not as the “instant experts” of the
media see fit. Not every criminal defense effort calls for extensive and flashy trial
work; sometimes the best strategy is to lay low throughout trial--particularly in
multi-defendant cases. Although some cases require an aggressive public posture and
direct interaction with the media, other cases call for a lower profile and require
defense attorneys to circumscribe public comments. On a more fundamental level,
some cases call for a negotiated plea because that best serves the clients' legitimate
interests, while others mandate trial even in the face of seemingly insurmountable
odds. Defense counsel must have the ability to constantly reinvent themselves, to
adapt to the unique circumstances presented by each case, and to react according to
the needs of a specific case and not according to what worked in another case at
another time.
Most significantly, defense counsel must remain true to the craft they practice,
to the profession they pursue. Trial lawyers must have self-confidence and a public
presence, which are often mistaken for an overdeveloped ego. They must constantly
strive to assure that they find gratification from their work. This must be found, not
by measuring how the public--and especially the media--evaluate their work, but by
measuring whether they are secure in their own belief that their efforts furthered the
cause of justice. Our responsibility is not to ensure that we receive good reviews
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from the world at large. Our responsibility is to serve first our clients, second the
system in which we participate, and third ourselves as practitioners of an honorable
profession.
This takes courage. It takes courage to stand beside a person who is the object
of public scorn and insist that this person, like every person, is entitled to a
presumption of innocence. It takes courage to pass a phalanx of cameras and
reporters and to walk away from free publicity because that is in the client's best
interest. It takes courage to aggressively confront a prosecutor's office and insist that
they meet their burden of proof in a highly publicized case, knowing that you will
later need to approach those same prosecutors on behalf of other clients. More than
anything, it takes courage to demand that justice be done in a case already decided in
the court of public opinion. Further, it takes courage to remind the public that issues
of personal liberty are too precious to be decided outside of a courtroom.
That is why I admire criminal defense attorneys, why I am proud to count
myself among their number. Contrary to popular opinion, good defense lawyers do
not really think they are the only good lawyers on earth. Rather, I suspect that most
quality defense attorneys are like me; they enjoy watching other professionals do a
good job and take pleasure in the successes of their colleagues. I admire good
defense attorneys because they appreciate that this job, this profession, is not about
fame or notoriety. This job, this profession, is about participating in an important and
valued aspect of American life. Few other professionals must be so immune to the
whims of public opinion. Few other professionals must be so willing to absorb
hostility on behalf of another. Few other professionals are as susceptible to the
Monday-morning quarterback mentality that measures effort according to the result
instead of according to skill displayed.
Most of all, few professions pose the irony of criminal defense work. When we
win, when our efforts bear fruit in an acquittal, too often the public is informed that
we have thwarted justice. As criminal defense counsel, we of course understand that
by putting the prosecutor to the constitutional burden of proof, we in fact assure that
justice has been achieved. However, the media may report that we have harmed the
interests of justice, that we have pulled a fast one on the system. The unhappy irony
is that we who revere the system are portrayed as its enemies; we who assure justice
are labeled as impediments to the justice to which we subscribe. As criminal defense
counsel, our responsibility is to our clients, the system, and to ourselves as
professionals. Layered atop each of these responsibilities is our responsibility to each
other as participants in this noble effort, to offer each other encouragement and
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support. If we cannot expect public acclaim for our efforts, if we must endure flawed
logic by those who review our work, we can at least assure that within our own
number, we maintain the integrity of our craft. We must reject the temptation to
adapt our techniques to what we see praised on television. We must resist the
tendency to seek public approval for demanding justice on behalf of unpopular
clients. We must remember that a reporter's critical analysis of our efforts can be
very wrong, and it is made worse by virtue of the fact that it is repeated in the media
and disseminated across the country.
Each of us, on an individual basis, must work to maintain our professionalism
and integrity. We are heirs to a tradition that dates back to Lincoln, that invokes
names like Darrow, and that is carried out in every city of America by public
defenders who toil for low wages, motivated only by their sheer dedication to
cherished principles. We can be proud of the work we do, because of the way in
which we do that work and the benefit it brings to our entire society. Thousands of
years ago, the author of the Book of Proverbs wrote words that apply with equal
force today: “When justice is done, it brings joy to the righteous but brings terror to
evildoers.” No better job description exists than to say, “they bring justice.” No
profession can provide a more honorable responsibility. Let us resolve that our
acceptance of this responsibility will not be diminished by the voice of popular
opinion, but will instead be encouraged by the belief that we do justice when we
remain true to our own unique role in the adversarial system.
14.5. 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
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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, greytoothed, 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.
“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.
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