Her Kind of Case: A Lee Isaacs, Esq. Novel

by Jeanne Winer

  Toward the end of her examination, Lee asked Ethan to describe his last interaction with Jeremy in Colorado Springs.

  “It was right after his parents threw him out,” Ethan said. “He called and asked if I would meet him at the Denny’s on Academy Boulevard. He sounded upset. I got there an hour later and tried to calm him down. He couldn’t stop crying.”

  “Did he tell you why he’d been thrown out?” She knew her client hadn’t told him the real reason.

  “For just, you know, not honoring his parents’ wishes.”

  “Regarding?” Lee prompted.

  “Regarding almost everything, I guess.” Ethan blew out a breath. “His father was incredibly strict. Nothing Jeremy did was ever good enough. His mom was actually okay, but his father was always mad at him for something.”

  “Did Jeremy have a plan for the future?”

  “Well, he wanted to stay with me, but my parents wouldn’t have allowed it. They’d never go against their pastor.”

  “So then what?”

  “We were both pretty hungry, so we ordered grilled cheese sandwiches and apple pie. I kept begging him to apologize and ask for forgiveness, but Jeremy said no, his father would never take him back. So I gave him all the money I’d brought, about a hundred dollars that I’d been saving since I was twelve, and made him take it. I also gave him my leather jacket.” He wiped a few tears away. “It was really hard because he was my best friend and I wasn’t sure when I’d see him again.”

  Lee gave him a few seconds to compose himself.

  “Do you know where Jeremy went that night?”

  “Well, at nine o’clock, he took a bus to Denver. I waited till he got on. He was going to look for a place to stay, you know, like a youth hostel. And, well, that’s all I know.”

  “Did you ever hear from him again?”

  “Just once,” Ethan said. “He called on May 5th, which is my birthday. He said things were finally looking up and that someday we were going to laugh about all this. I wanted to come and see him, but he said it was impossible, that we lived in different worlds now. And then he hung up. I never heard from him again.”

  “Thank you, Ethan.”

  After Lee took her seat, Dan asked a couple questions and then sat down. At trial, he probably wouldn’t ask any. He would make it clear to the jury that the witness, a nice, sympathetic kid, was irrelevant to the only issue that mattered: whether the defendant aided and abetted a murder.

  At that point, Judge Samuels announced a thirty-minute recess and started to rise.

  “I’m guessing you’ve both prepared written briefs. If so, could you hand them in now? You don’t have to exchange them until after you’ve argued, but I’d like to read them during the recess.”

  Dan and Lee both pulled out their briefs, approached the bench, and handed them over. While they were still in front of the judge, Dan asked Lee if she wanted to exchange them now; he would if she would.

  Fat chance, Lee thought, but smiled sweetly and said, “What would be really gallant is if you’d give me yours and wait for mine at the end of the hearing.”

  Dan smiled just as sweetly.

  “If only I could be gallant but, alas, I must be cowardly. You’re just too good a lawyer.”

  “You’re both full of shit,” the judge said, laughing. “I’ll see you in thirty minutes.”

  Lee walked back to the defense table. As Mr. Clean was preparing to take Jeremy back to the holding cell, Ethan approached them. He wore a short-sleeved white shirt and a clip-on bow tie. With his reddish hair and wide-open face, he reminded Lee of Andy Griffith’s fictional son, Opie. In this episode, Opie’s long lost friend from Mayberry resurfaces as a skinhead arrested for murder.

  “Hi, Ethan,” Lee said. “Thanks for testifying.”

  “You’re welcome.” He was staring hard at Jeremy.

  “Hey, man,” Jeremy said. “I’d shake your hand, but I can’t.” He showed Ethan his handcuffs. “Do your parents know you’re here?”

  “Uh-uh. I’m hoping they won’t find out.” He hesitated. “Look, I just want to apologize.”

  “For-for what?”

  “Oh, you know, for not helping you more.” His face was pink with embarrassment.

  “Hey, man, you gave me your money and the jacket off your back. What more could you have done?”

  “I should have gone with you. I’m really sorry.”

  “That’s ridiculous. You wouldn’t have survived. I barely did.”

  “Still.”

  “Hey, man, it’s all good. Take care of yourself, okay?” Jeremy turned toward Mr. Clean. “I’m ready to go now.”

  “Yeah,” Ethan said, checking his watch. “I’d better go too. My bus leaves in half an hour.” He was trying hard to smile.

  “Well, thanks for coming.”

  “I’ve really missed you,” Ethan blurted and then quickly walked away.

  “He’s just a kid,” Jeremy murmured.

  After the recess, Dan slipped quietly to the podium and spread out an impressive number of pages. Since he usually argued without notes, it was his way of signaling to the judge that the motion really mattered and that he needed to prevail.

  His argument was vintage Dan: smart, organized, and cogent. As Lee expected, he spent almost half his time on the issue of voluntariness, arguing that even if the defendant wasn’t emancipated, his statements to the police weren’t coerced and were therefore voluntary.

  “Ultimately,” he said, “it’s a question of fairness. Allowing the defendant to take the stand and deny any participation in the murder without also allowing the state to impeach him with his voluntary statements would be grossly unfair and seriously hamper our ability to prove the defendant’s guilt beyond a reasonable doubt. We only want what is fair. Thank you, Judge.”

  Lee closed her eyes for a moment. Dan’s argument made perfect sense; it would be a hard sell to convince the judge otherwise. But she had to.

  As she walked to the podium, she made a number of decisions. First, no passion—it would only make her seem desperate. Second, she would address the issue of police coercion head-on. And third, she would hijack Dan’s fairness argument and make it her own.

  “Your Honor,” she began, “we, too, only want what is fair. And what’s fair for my client is to grant his motion to suppress and to prohibit the prosecution from using any unlawfully obtained statements against him.” She took a drink of water. “It’s been over thirty years since the Colorado legislature enacted section 19-2-511, recognizing that juvenile defendants needed special protection when dealing with the police and the criminal justice system. Recently, the American Psychological Association, the American Psychiatric Association, and the National Association of Social Workers filed amicus briefs in two landmark cases before the United States Supreme Court, Graham v. Florida and Miller v. Alabama, arguing that research in developmental psychology and neuroscience documents juveniles’ greater immaturity, vulnerability, and changeability.

  “These organizations urged the Court to treat juvenile defendants differently than similarly situated adults because juveniles are less capable of mature judgment than adults, are more vulnerable to external influences, and their psychosocial immaturity is consistent with recent research regarding adolescent brain development. These amicus briefs have been included in my written material along with some of the newer research on adolescent brain development.”

  Lee waited until the judge nodded, then began again.

  “According to section 19-2-511 (1) of the Colorado Revised Statutes, a statement given by a juvenile during custodial interrogation is not admissible unless a parent, guardian, or legal custodian is also present during the interrogation. Under section (2), however, the statement may be admissible, notwithstanding the absence of an adult, if the court finds that, under the totality of the circumstances, the juvenile made a knowing, intelligent, and voluntary waiver of rights and was emancipated. An emancipated juvenile, as defined in section 19-1-103 (45),
means a juvenile over fifteen years of age and under eighteen who has, with the real or apparent assent of his parents, demonstrated independence from his parents in matters of care, custody, and earnings. The term may include, but shall not be limited to, any such juvenile who has the sole responsibility for the juvenile’s own support, who is married, or who is in the military.

  “According to Ethan Mitchell, who was my client’s best friend in Colorado Springs, my client grew up in a strict, religious home. His life, as the son of a strong-willed pastor, was extremely sheltered and narrowly circumscribed. He rebelled by drawing the line at four church services a week and by occasionally sneaking off to see a ‘normal’ movie. He’d never been in trouble with the police and had never been questioned by them. Just after his sixteenth birthday, his parents threw him out and he was forced to live on the streets. At some point, a group of skinheads saved his life and adopted him. They allowed him to live in their attic and taught him how to survive. To fit in, he shaved his head and got the same tattoos that they had.

  “At the time of his arrest, he wasn’t in school or in the military. He wasn’t married. He had no job, no bank account, and no visible means of income. He lived in an attic, had almost no possessions, and was very, very hungry. If, at that time, he’d petitioned a civil court for emancipation, the judge would have laughed at him.”

  She stopped again, checking to make sure Judge Samuels was still with her.

  “Judge, there’s no question my client was alone when he was interrogated by Detective Roberts. If he was emancipated and the court finds he made a knowing, intelligent, and voluntary waiver of his rights, then his statements are admissible. But, given the definition of emancipation and the facts surrounding my client’s exodus from his home and his subsequent living arrangement with a group of older skinheads in Denver, there’s no way this court can find he was truly emancipated.

  “And, because Detective Roberts was aware of these same facts, there’s no way he could have made even a good faith determination of emancipation. Calling my client’s parents and asking them if their son was emancipated just isn’t enough. If it were, then any child who gets thrown out of his house would automatically be emancipated and wouldn’t be entitled to any of the special protections that the courts and legislatures have determined to be necessary.”

  Now for the hard part, she thought, although her face gave nothing away.

  “Because my client wasn’t emancipated and his rights were intentionally violated, section 19-2-511 requires this court to suppress his statements and to prohibit the DA from using them. The statute also states that if the juvenile wasn’t emancipated, it doesn’t matter that he voluntarily waived his rights. The statements are still inadmissible. Implicit in this is the determination that, under such circumstances, any statements made by the juvenile are to be considered involuntary. Which means that the DA should be prohibited from using these unlawfully obtained statements in any way, either in its case-in-chief or to impeach my client should he decide to testify. That is what’s fair.”

  Both the judge and the DA looked surprised. Lee immediately put up a hand.

  “Judge,” she said, “I’m fully aware of the DA’s argument: that there should be a separate voluntariness inquiry apart from the statute, that even if the court rules that my client’s statements should be suppressed, unless he was subject to undue influence or police coercion, his statements should be considered voluntary under the due process clauses of the Fifth and Fourteenth Amendments and therefore available as impeachment material.”

  She looked at Dan and said, “That’s your argument in a nutshell, correct?”

  Dan hesitated but eventually nodded his head. To nitpick her language would appear peevish and obsessive.

  “Okay then,” she told the judge. “So, for all of the reasons stated, it is still our contention that the statute precludes using the statements for any purpose. If, however, Your Honor agrees with the DA that there is in fact a separate voluntariness inquiry, I will address it.” She took a deep discreet breath. What she said next would very likely determine where her client would spend the next forty years of his life.

  “According to the Court in People v. Lucas, a case concerning an obviously emancipated juvenile who ran away from home and was arrested for murder, statements are inadmissible for any purpose unless they are made voluntarily. Whether statements obtained during a custodial interrogation are voluntary depends upon the totality of the circumstances surrounding the interrogation. Primary factors to be considered are: (1) the juvenile’s age, experience, background, and intelligence; and (2) his capacity to understand his Fifth Amendment rights and the consequences of waiving those rights.

  “In that case, the Court found that the statements were voluntarily given, and not the result of undue influence or coercion on the part of the officers. But unlike the defendant in Lucas, my client had no experience dealing with the police, and because he wasn’t emancipated, had every right to have an adult assist him to understand his rights and the consequences of waiving them. This much-needed assistance, however, was deliberately withheld by an officer who wished to take advantage of his youth and immaturity. An officer who knew exactly how to get a scared, hungry, sleepy kid to talk.

  “So how much coercion is necessary? Do the police have to slam my client around to obtain his confession? Why bother, when all you need to do is feed him, withhold any information that might help him, and ignore any answers you don’t like. It’s easy. But just because it’s easy doesn’t mean you haven’t used undue influence to get him to talk. In this case, Detective Roberts knew or should have known that my client was not in fact emancipated. He should have ordered my client’s parents to either come to Boulder or arranged for another relative to stand in for them. He should have told my client that he didn’t have to decide whether to waive his rights without the advice of an adult. My client obviously thought he was alone. His so-called brothers were elsewhere. There was no one to help him except the nice friendly detective who gave him sandwiches and acted kind. Undue influence? You bet.

  “Judge, for all of the above reasons, I’d ask you to suppress my client’s statements and to prohibit the DA from using those statements for any purpose. Thank you.”

  After everyone was seated, Judge Samuels told the parties to return at five o’clock for his ruling. Then he banged his gavel.

  “The Court is in recess.”

  Both the judge and the DA immediately left the courtroom. Phil and Carla crowded close to Lee.

  “Whew,” Phil said. “I think we actually have a chance. I couldn’t imagine how you’d argue against the Connelly case, but you did. I’m very impressed.”

  “What’s the Connelly case?” Carla asked, her hand on Jeremy’s shoulder.

  “It’s our biggest hurdle,” Phil explained. “The case where the U.S. Supreme Court held that a confession is voluntary unless the defense can prove it was the product of police misconduct.”

  “But we argued that, right?” Carla asked.

  “As best we could,” Lee answered. She was tired and didn’t feel like discussing anything with anybody. She stared at her watch. “I have to be somewhere at 3:30.” Somewhere was the Boulder Teahouse on 13th Street, where she often hid during trials and major hearings. Even if it was busy, she never ran into anyone there who knew her.

  “How are you holding up?” she asked Jeremy.

  “Just, you know, kind of scared.” His chin and fingers were covered with blue ink. The pen she’d given him to take notes or draw pictures must have leaked.

  “But basically okay?”

  “Basically? Um, I guess so. Yeah, sure.”

  She studied his face, but it was unreadable.

  “Great,” she said. “I’ll see you at five.”

  At exactly five o’clock, Judge Samuels entered the courtroom, sat down and cleared his throat.

  “First of all, I want to congratulate both parties for their professionalism throughout the day
. I know how much you both want to win. And I realize my rulings will very likely affect Mr. Matthews’ chances at trial.” He then picked up his notes and began reading them into the record.

  “After reviewing the written material, the witnesses’ testimony, and the arguments of counsel, I find the following: Concerning whether the defendant was emancipated at the time he made statements to Detective Roberts, I am not convinced that he was. Although Mr. Matthews had been on his own for almost eight months with his parents’ consent, there wasn’t nearly enough evidence to show he could actually take care of himself. It seemed from the limited amount of evidence presented, that in lieu of his parents, he was simply living off another set of adults.

  “I also found it highly persuasive that unlike the defendant in Lucas, Mr. Matthews hadn’t chosen to live on his own, that he’d been thrown out of his home and was distressed by his parents’ action. Because the defendant wasn’t emancipated, section 19-2-511 of the Colorado Revised Statutes requires that I suppress his statements. The DA is hereby prohibited from referring to or using any of these statements in its case-in-chief.

  “Now, as far as the issue of voluntariness goes, I disagree with Ms. Isaacs’ contention that a violation of the statute requires me to find that her client’s statements were involuntary. Instead, I agree with Mr. Andrews that a separate voluntariness inquiry is required and that according to Colorado v. Connelly, a statement will not be considered involuntary unless it was the product of coercive police activity. Which means more than the usual amount of coercion required to get someone to talk.

  “Ms. Isaacs argues that because Detective Roberts knew or should have known that her client wasn’t emancipated, his interrogation amounted to coercive police activity and that he used undue influence to extract those statements from him. Mr. Andrews argues that the Connelly case requires much more coercion than that. I agree with Mr. Andrews. Although I disagreed with the detective’s preliminary determination of emancipation, there’s no evidence, beyond Ms. Isaacs’ allegation, that it was made in bad faith. Furthermore, I am unconvinced that the detective used undue influence to get Mr. Matthews to talk. In fact, I find the opposite: that Mr. Matthews was inclined to talk and was easily persuaded to do so.