“I am not a trial lawyer,” he continued, wondering how much trouble he could cause the government by filing a dozen vigorous, well-aimed pretrial motions. “Stern, Pale hired me because I have a certain facility for answering essay questions on law school exams.”
“I’m looking at the judge’s notes,” said the clerk. “He says you wrote a law review article called ‘Are Hate Crimes Thought Crimes?’ in the Ignatius University law journal.”
Watson was flattered that Judge Stang had noticed his student comment but alarmed that anyone would think it qualified him to handle a murder case.
“That’s me,” he said. “But that’s just footnotes, research, and so on. That’s not murder!”
The clerk sighed. “The case has been assigned to you. I don’t know if there’s such a thing as a Rule Forty-nine Motion to Withdraw Because of Your Own Incompetence, and I don’t think your client can claim ineffective assistance of counsel until you lose the case, but if you want to file something, see Judge Stang at informal matters after the arraignment. I’d wear a helmet if I were you.”
The clerk added that Watson could watch Channel 5 Live at ten if he wanted to know more about the case, that newspaper people were calling, that Lawyers for Deaf Americans, lawyers for the National Organization for Women, NAACP lawyers, civil rights attorneys, and hate crime experts were all calling for information about the case, so maybe he would be able to fob it off on an attorney for a special interest group or on some other eager young defense lawyer willing to work for nothing while building his or her reputation.
“This is an academic discussion, however,” said the clerk. “You’ve been appointed. I can’t unappoint you. Only the judge can do that. Do you know Judge Stang?”
Legends and war stories came immediately to Watson’s mind. The time Judge Stang—a cantankerous graduate of the Roy Bean school of jurisprudence—ordered an attorney to put a bag over his client’s head, because the judge was sick of the man’s supercilious grin. The time he ordered a federal marshal to handcuff two squabbling attorneys together and lock them in a holding cell. The time he flew into a blind rage (later diagnosed as furor juridicus, a species of judicial seizure activity) and attacked thirty lawyers with the courtroom’s iron flagpole because they were unable to settle EPA Superfund litigation after three years of discovery. He had more nicknames than any other judge. Some called him Ivan the Terrible, others, Blackjack Stang; still others referred to him as the Grand Inquisitor, Darth Vader, Beelzebub, the Gowned Avenger, or the Prince of Darkness.
“I’ll tell you this,” she said, “if you try to withdraw from an appointed case, and your only excuse is that you lack trial experience, Judge Stang will fine you for contempt, and then he’ll cut your ears off with a butter knife.”
CHAPTER 2
Stern, Pale policy and procedures required a conflicts memo to be sent via E-mail notifying the firm and its 572 lawyers in offices all over the world of any prospective new clients. The clerk’s fax was long on charges and short on facts. “James F. Whitlow,” Watson typed in the new-client box—the first time he’d made such an entry. “United States v. Whitlow,” he typed in the new-matter box. He sent the conflicts memo and then selected the West CD-ROM version of Title XVIII of the United States Penal Code—the title that dealt with criminal offenses—took the disk home, and looked up all of the crimes charged in the complaint.
The next morning’s Post-Dispatch was more helpful than the conclusory legalisms set forth in the clerk’s fax. SUSPECT’S SLURS PROMPT HATE CRIME INVESTIGATION. Watson read it in his office while waiting to see Arthur, who had left an early-morning voice mail after reading the conflicts memo. He had asked Watson to see him about “taking steps to be certain his new criminal appointment would not interfere with his responsibilities to the firm’s clients.”
According to the Post-Dispatch, the murder had occurred in the defendant’s bedroom. The defendant’s wife, serving in the army reserves, was the only witness. No mention of what the wife, the victim, and the defendant were doing at the time, who got there first, or last. The story had the heady breathlessness of breaking news, garnished with the usual journalistic sociology: a warning of a local and national epidemic of hate crimes. Throughout the 1990s, the FBI had collected statistics on hate crimes, pursuant to the Federal Hate Crimes Statistics Act. Then, in 1999, new categories were added to the statute providing enhanced penalties for attacks motivated by pro-choice or antiabortion sentiments. Now, all fifty states and the federal government had laws against hate crimes, and those laws had in turn spawned task forces—hate crime investigation units staffed with hate psychologists and forensic psychiatrists—and more laws designed to prosecute hate criminals for a growing variety of prohibited hatreds.
According to the article, the victim, Elvin Brawley, was a locally prominent artist, an engraver, a craftsman—“a black William Blake,” in the words of one African-American professor at the local community college. “Elvin Brawley designed and printed his own poetry books, worked at a local computer-graphics boutique, and still found time to be active in both the deaf community and the black community,” said the professor. Others praised Elvin’s knowledge of computer science and how he had tirelessly worked to develop and implement computer technologies, especially for the underprivileged and those with special needs. A local civil rights leader proclaimed that Elvin Brawley’s death was “an outrage and a waste of the human spirit, a tragic loss to the black community and the deaf community, who now console one another in sorrow and grief and cry out for justice.”
The accused, James F. Whitlow, was a native South St. Louisian—a working-class Catholic boy who had been a year behind Watson at Ignatius High, though Watson hadn’t known him and now, seven years later, had only the vaguest memory of Whitlow’s name and none of his face. But Watson vividly recalled Whitlow’s reputation as a hothead, including one specific episode he’d heard recounted a dozen times in high school, told and retold by various witnesses who seemed at once intrigued and sickened by the incident.
Whitlow had gotten into an argument with another kid, a two-hundred-pound right tackle—Terril Williams, a black potential All-American—at a south-side White Castle hamburger joint. The manager had told them to take it outside, and Whitlow, holding up his hands in apparent capitulation, had said, “We are on our way outside right now. Aren’t we?” His adversary nodded in response and prepared to leave.
Whitlow reportedly had put both of his hands on the metal chair he’d been sitting in, as if to push it in, and then had swung it aloft in a split second and brought it down on Williams’s head. Williams had sat out the rest of the football season with a fractured skull.
Charges were dropped because of Williams’s own record of criminal assault and the traces of PCP and amphetamines that had shown up in his blood at the hospital. Whitlow—who had magically gotten away with nearly mortal violence—acquired the school-yard reputation of an Al Capone, cunning and ruthless. He wasn’t very big, but he had one formidable weapon—his proven willingness to damage seriously and permanently anybody who crossed him.
By the time Watson met with Arthur, his boss—a former prosecutor—had already called around for the inside dope on the case.
“This is bad,” said Arthur, pacing behind his tribunal-size desk, while Watson cowered in a hard-back chair in front of him. “High profile and bad. We’re talking about weeks of preparation, research, pretrial motions, followed by a murder trial, appeals. This could go on for months. Years. We need a way out of this one.
“You need to file a motion to withdraw,” Arthur insisted, glancing at his desktop, where James Whitlow’s mug stared back at him from the front page of the Post-Dispatch. “Failing that, the best you can do for the unfortunate fellow is plead him out on a lesser included charge—manslaughter, or something.”
“Lesser included charge?” said Watson. “In this case the lesser included charge is first-degree murder. The U.S. Attorney is trying out the new fede
ral sentencing guidelines for hate crimes.”
“What’s the old psycho thinking?” Arthur muttered—an apparent reference to Judge Stang. “There must be a conflict in the federal public defender’s office. And you came up on the wheel. You don’t have an iota of trial experience. You need to withdraw.”
“On what grounds?” asked Watson. “When was the last time Judge Stang let anyone out of an appointed case because of a lack of trial experience?”
“I thought you said this fellow went to Ignatius High?” Arthur said. “He was in your class, wasn’t he? It’s a potential conflict, at least. I think we owe it to Judge Stang to bring your relationship with this fellow to the court’s attention. At the very least, I would call it the appearance of impropriety.”
“What relationship?” argued Watson, his misgivings about trying the case and his concerns about the effect it would have on his firm performance profile momentarily supplanted by his resentment at being ordered to get rid of it. “He wasn’t in my class. I barely remember the guy’s name. I wouldn’t know him if he spit in my face. What are the legal grounds for withdrawing? I need search terms to feed into the computer.”
“Computers are no good in gray areas,” said Arthur, “but of course you young associates don’t know that yet. The accused was almost a classmate, and as such he qualifies as a former acquaintance. Take a stab at a memorandum in support of a motion to withdraw, call it the appearance of impropriety, mention your complete lack of trial experience, indicate your dearth of expertise in criminal law. Let me worry about what to do if he denies the motion. File it on Monday at informal matters before Judge Stang. I’ll call and try to soften the ancient bully with some kind words. He and I were fellow travelers many years ago in the U.S. Attorney’s office. It may be a simple mistake, in which case we want to provide all the excuses he’ll need to assign it to another lawyer.”
“And if he doesn’t let me out?” said Watson. “I can’t plead a guy out on a murder charge. It sounds like plain-vanilla voluntary manslaughter. A classic case of provocation. You can’t plead a guy to life, or death, for that. He found his wife in bed with another man.”
“And murdered him,” said Arthur. “Not just murder. The hate business is very problematic. What was it he said? Before he shot the poor man?”
Watson ground his teeth and tasted acid. Arthur seemed to revel in the lurid details of this case while tirelessly working to dispose of it. This was the second time during their meeting that Arthur had asked him to repeat his client’s alleged statement upon finding his wife in bed with another man.
“Didn’t he say, ‘Looks like I’m gonna kill me a deaf nigger’?” said Arthur, with a look of happy revulsion on his face.
“That’s the wife’s version of the story,” said Watson.
“And she says that your esteemed client burst in on her and her sign language teacher, brandished a nine-millimeter semiautomatic, and threatened to kill both of them.”
Watson was on the verge of rebuttal on behalf of his brand-new client—Arthur seemed to be reliving his past as a prosecutor while enforcing his present as a partner concerned about the bottom line—but the contemplation of a future without Stern, Pale & Covin paychecks and benefits gave him pause. Arthur pressed on, savoring the unsavory: “According to the wife, your new client pointed the gun at the man’s head and threatened him. And she screamed, ‘He’s deaf, he doesn’t know what you’re saying!’ Then the gun was pointed at her, wasn’t it? And your man said something to her about sign language, didn’t he?”
“The defendant hasn’t told us what happened yet,” said Watson. “You’re convicting him on the basis of some reporter’s reading of the police report.”
“It gets worse, doesn’t it?” said Arthur. “Because the defendant’s seven-year-old son is deaf. And after he killed the poor man, he forced his wife at gunpoint to call military security and report an attempted rape. He didn’t want her taking sign language lessons. He kept insisting the boy could lip-read and learn to talk. Cruelty itself against the specialness of the child, which builds into the federal bias-crime charges. This fellow has a malignant, displaced hatred of some kind, a short step from hating deafness to hating the deaf. And the poor wife, not knowing where to turn in her desperate attempts to learn the language of the deaf, falls in love with a deaf man who gets killed for his trouble.”
“Are you the prosecutor?” Watson exclaimed, stopping just shy of a shout and tempering what could have been an outburst with an ironic smile.
“Just getting the bad facts out where we can deal with them,” said Arthur.
“What about the good facts?” asked Watson. “Let’s say he’s a faithful husband with a seven-year-old son. He comes home from work in the middle of the day and finds his wife holding on to the headboard with another man on top of her. And the government comes along and says his motive was deafness or race?”
“The circumstances go to the murder charge,” said Arthur. “The remarks put him under the hate crime enhancements. Didn’t he say, ‘You want me to learn sign language? Teach me some sign language. I need to know three signs—dead, deaf, and nigger’?”
“I haven’t asked him what he said yet,” Watson replied. “I haven’t met him yet. So far, she has the luxury of doing all the talking, because she’s not in jail.”
“We’ll know more when we get the reports from the army’s Criminal Investigation Division,” said Arthur. “Because the defendant is a civilian, the FBI will come in, too, under the Posse Comitatus Act. All we know now is that this case is trouble. And the client is a bad client.”
“How do we know that?” Watson asked, deciding at the last second not to suppress an argumentative tone.
Arthur sighed and assumed the demeanor of Fermat teaching the multiplication tables to an eight-year-old. “Good clients are friends of yours seeking assistance in conducting their affairs and businesses. You give good advice to good clients; it saves them money and trouble, and they gladly pay you.”
Arthur stabbed his desk with a forefinger, clearly ticked that Watson would even consider a trial instead of a suitable plea. “Bad clients are also seeking assistance. But when you give good advice to bad clients, they don’t pay you, and after you represent them for little or no fee, they sue you for your trouble. This fellow is a bad client. I know. I used to put his kind in jail.”
“The government doesn’t just want to put him in jail, they want to execute him. And you don’t stop being a good lawyer just because you’re stuck with a bad client, do you?”
“Of course not,” said Arthur. “But we—this firm—and you, in the interest of our professional integrity—and, yes, in the interest of our financial well-being—we do our best to avoid bad clients and cultivate good ones. You should be investing your time establishing relationships with our good clients. An appointed case is a nuisance to be summarily disposed of in the most expeditious fashion. If you have a different idea, then …”
The unthinkable met the unutterable. Stern, Pale was the best firm in town. Many lawyers and most corporate counsel knew that; the only question for corporate clients was whether they could afford the best. And the only question for Watson was whether he wanted to work at the best firm in town or at another, one that was not the best. Worse, how about going to a firm that was not the best, having left the best firm two weeks before semiannual bonuses were due?
He broke into a sweat just imagining the explanation: Sandra, remember that job I had at Stern, Pale? The one I got because you put me through the last two years of law school, so I could study real hard and graduate in the top ten percent of my class? Well, San, guess what happened?
The look on Arthur’s face convinced him this scenario was possible if Watson chose, now or later, to put any real work into defending his hate criminal.
“You may have noticed that our firm doesn’t do criminal law,” said Arthur.
That wasn’t quite true. The firm represented white-collar criminals with money.
Drug dealers, murderers, and rapists had to go elsewhere, whether they had money or not. Drug dealers, murderers, and rapists who happened to also be immediate family members of huge clients also went elsewhere, but their cases were quietly supervised by Stern, Pale lawyers whose names appeared nowhere on the pleadings.
“I know people in the U.S. Attorney’s office,” Arthur said. “I’m going to tell you this once: I want to know the instant anyone contacts you with an offer. Hear me? This case will not go to trial.”
“Wouldn’t the trial experience be good for me?” Watson implored, again not quite sure he wanted a murder trial but resenting Arthur’s interference in his appointed case.
“Withdraw,” Arthur commanded. “Failing that, plead him out.”
CHAPTER 3
“You don’t know what to do?” asked Sandra through the door of the powder room, where she was getting ready for bed. “Arthur told you what to do. Get out of the case if you can. If you can’t get out of it, then get rid of it.”
Watson was propped against the headboard in his underwear, his state-of-the-art subnotebook computer supported by a pillow in his lap. He was scrolling through the memorandum in support of his motion to withdraw from the Whitlow case, which he was scheduled to present to Ivan the Terrible at informal matters in federal district court, 10:00 A.M. tomorrow. Like most associates, he often worked at home, but not even he worked in bed … except in emergencies, which happened only once a week or so. Even then, he didn’t ordinarily bring files or his computer to bed—he simply thought very deeply about the matter at hand and made a billing entry the next morning to account for the time.
Watson had written a succinct, compelling memo about how an inexperienced first-year associate could easily lose a death-penalty case, creating crabbed constitutional bugbears, not to mention loss of life, which could, in turn, engender ten years of postconviction litigation on the issue of ineffective assistance of counsel. The memo appealed directly to Judge Stang’s renowned hatred for being reversed on appeal and getting the case sent back to his crowded docket.
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