Ms. Vogel responds by letting me know that they are aware of our affidavits and that they still deny all liability. She goes on to state that her office will accept Service of Process in this matter. Suzi likes this because it means that we won’t have to spend the money to have the Summons & Complaint for Vinnie’s case served on them by Jack B., or the Marshall’s office.
Come to think of it, she’s really got some nerve. Not only is she denying the claim, she’s daring me to sue and even offering to let me mail the papers to her office. This is the first time I’ve come across this much boldness, which probably means that they know something that I don’t know - and that worries me.
My cell phone rings and I recognize Myra’s number on the caller ID display. “Hey, what’s up?”
“Pete, I’m calling to apologize.”
“For what?”
“For the way I acted yesterday in the courthouse cafeteria. I totally lost it when you brought up that insanity defense and I shouldn’t have. You’re representing a client in a capital murder case and you certainly have the right to assert any defense on his behalf that you think is warranted.”
“Gee, that’s nice of you Myra. I really appreciate your consideration like that.”
“Yeah, well, listen, I know you’re going to try and visit with your client again today, so after you’re through, why not call my office and maybe we can get together for another cup of coffee… one that I promise to finish without going ballistic.”
This looks encouraging, but I’m still worried. That’s twice in the same week that a female lawyer has been agreeable with me. First it’s Patty Vogel agreeing to accept service by mail for her restaurant client and now it’s Myra, apologizing for being the ball-buster that she is. If things keep going this well for me, maybe my own client will grant me the honor of his presence. I should know soon, because I’m now pulling into the jail’s parking lot.
After going through the usual check-in procedure, I’m led back to the attorney interview room, where I sit down with a magazine to wait for my client to either show up or send a jailer back with his refusal to see me.
To my pleasant surprise, the steel door opens and in walks my esteemed murder client, Harold Blitzstien. He looks like shit – even worse than he did in court yesterday. He sits down on the other side of the table and gives me a blank stare. I ask him how he is but as usual, he doesn’t answer. Okay, the silent treatment. I can take that. It’s a step in the right direction – at least he came to the meeting. I figure that at least one of us should talk, so I start in.
“Mister Blitzstien, do you mind if I call you Harold?” No response. “Okay, I’ll take that as a yes. Harold, we’ve got a serious problem here. You’re charged with murder in the first degree and the prosecution has a videotape of you committing the crime. Just in case you weren’t aware of it, the hospital has security cameras all over the place. Now that doesn’t give us too many ways to go. We can deny that it was you on the tape, which would be tough since you looked right into one of the cameras in the hospital corridor, and they’ve got a beautiful shot of your face. Self-defense is probably out of the picture because the guy in bed looked like he was unconscious when you held the pillow over his face… he didn’t even put up a fight.
“With self-defense and it-was-someone-else gone, the only things left for us are NGRI or GBMI, which mean Not Guilty by Reason of Insanity, or Guilty But Mentally Ill.” Still no response. I know he’s listening but he won’t give me even an inch of acknowledgement.
“Can you at least nod to let me know that you’re hearing everything I’m saying?”
Success. He gives me a slight up-and-down ‘affirmative’ nod. Now that communication between us has actually begun, I continue. “I don’t want to fight with you about the defense we use. If I stand up in court and tell the judge that we’re pleading insanity, I don’t want to be surprised by your vanity kicking in and making you jump up to deny that you’re insane. I’m trying to save your life here… will you work with me?” Another slight shrug. That’s okay, I’m not expecting a well thought-out legal discourse from him. At least he’s letting me know that I can try something in court without any surprise reaction. Now I’m going to try to push it one step further. “Harold, can you at least tell me why you did it?”
He gets up and walks towards the door. The jailer and I both know what this means… he has decided that today’s interview is over. So much for the fine art of client control. Just as he starts to leave the room, he turns around and says the exact four words I didn’t want to hear. “I needed the money.”
Damn. That makes it a murder for hire – a special circumstance case that qualifies for the death penalty – and I know about it. Now I’m in deep doodoo. Putting him on the stand has just become an impossible option. If he tells the court he’s a paid killer, both of our careers are over. And now that I know he’s admitted to doing it as a murder for hire, I can’t put him on the stand as a witness, because I can’t allow him to perjure himself by denying the crime.
Criminal defense attorneys walk a tightrope whenever they interview a client. You want to find out all you can about the case but you really don’t want to hear the client confess to the crime by admitting that he did it. If he does, then as the defense lawyer, you’re between a rock and a hard place. The only reason to ever put your client on the stand in a criminal trial is to tell his or her side of the story, deny guilt, establish an alibi, or try to point the finger of accusation at another person. If you’re the one doing the questioning and know that the client actually committed the crime, then every question you ask to help his defense is soliciting an answer that will be perjurious… and as a sworn officer of the court, you just can’t do that. It’s never worth it to put your entire career on the line like that.
Of course there’s always the possibility that even if your client confesses guilt to you, he might insist on testifying on his own behalf. That’s an even stickier situation. Some criminals are such sociopaths that they think they can convince a jury of their innocence. In cases like that, a criminal defense attorney should advise the court that the defendant insists on testifying against the advice of counsel. This way, the attorney is at least on the record as having been against the defendant testifying, so he may be off the hook if the client gets nailed for perjury. The only danger there is to watch out that you don’t ask your client if he did it or not. Let him tell the story in his own words, but leave that question for the prosecutor to ask… and get lied to.
There’s nothing I can do to help Harold keep his career of crime going, but I’d at least like to continue with mine. And if the court orders the prosecution’s shrink to examine him, I’ll be shot down that way too. If he readily admits things to me, he’ll admit them to the shrink too. I’m afraid it’s all over for Harold.
It’s time to call Myra’s office and make arrangements to meet her for lunch. I now know that I can’t assert any kind of defense for him, but she doesn’t know that yet. Maybe there’s still hope I can get some kind of deal out of her. If she at least takes death off the table, maybe I can talk him into a plea.
Driving over to the restaurant, I mentally go over all the ‘designer defenses’ that have been tried by various dream teams over the years, seeing if anything might be worth a shot. One after another, they all get ruled out in order. Starting with the Twinkie Defense, PMS, Sleepwalking, Black Rage, Post Traumatic Stress Disorder, Battered Woman Syndrome, Postpartum Psychosis, Adopted Child Syndrome and Brief Reactive Psychosis. Not only will none of them work - I don’t even understand what half of them mean, but every defense lawyer worth his salt can usually rattle them off for conversational purposes, to show how smart he thinks he is.
What really bothers me isn’t just that I can’t figure out a defense for this guy, it’s that I can’t figure out why the hell he did it. He says it was for the money, but why should anyone want to have a slip-and-fall claimant killed? I know that the insurance companies can be pretty ev
il at times but I can’t believe they’d have a nuisance claimant whacked. There’s got to be something here that I’m missing, and if I don’t figure it out soon, Harold Blitzstien will be looking at a visit from doctor death.
Wait a minute. If I can think this thing through, so can Myra. She’s got me up against the wall, so why the hell is she being so nice to me and wanting to get together? I smell a rat. Looks like it’s time for a change of plans. I call Myra’s cell phone and tell her voicemail that something urgent just came up and I’ll have to take a rain check on our lunch – maybe we can reschedule it for next week. I’ve got to get back to the boat to think all of this out and come up with some defense for Harold. Maybe I can find something in all that video footage that might help.
B ack at the boat I draft a complaint against the Mexican restaurant, mail it to the court for filing and send a copy to their attorney Patty Vogel’s office with a note that I’ll email her the court case number once I get my conformed copy back. Just to cover all the bases, I also send a short set of written Interrogatories over too.
I tell our office manager to use whatever connections we have with the local cops to run background checks on both Mike Drago, the deceased slip-and-fall claimant, as well as the defendant drunk driver in Vinnie’s case. There’s got to be something somewhere that will give me a clue as to what’s happening with these cases.
I was told that all those videotapes were digitized into some computer. The courthouse newspaper rack has a selection of magazines, one of which specializes in digital video, so I bought a copy on my way out of the building, the last time I was there. While reading through it, I learned quite a bit about non-linear video editing, which is all done on a computer after the footage is loaded in. From what I understand, you can isolate any frame you want out of the video and there are plenty to choose from because, as my magazine education revealed, videotape runs at a speed of about thirty frames a second.
Once a frame is chosen, a hard-copy print of it can be made. I think they call if ‘frame-grabbing.’ With this knowledge, I once again go back to that single videotape and take a look at it. Although it’s only a compilation of the other tapes, there is a timecode marker running at the bottom of the screen, which tells what reel it’s from, as well as the day, minute, hour and second of the action that took place. I start to make a list of the frames I want pictures of.
And while I’m in this scientific detective mood, it might also be a good idea to do the same with the security camera footage from the bank. I’d like to see how Mister Drago fell and hurt himself, so I send a message requesting that those tapes get digitized too. I may not be learning much, but at least I feel busy.
I save the most interesting stuff for Jack Bibberman, who gets the assignment of trying to find out from under what rock the mass fax spammer who counter-sued Stuart crawled out.
Now that we know the fax-spammer wants to play hardball, we might as well make the game interesting. I draft a set of Interrogs for them to answer.
The standard rule for trial lawyers is to never ask a question that you don’t already know the answer to. When non-lawyers hear that rule, they always ask the same thing. “If you already know the answer, why ask the question?” The reason is really quite simple. When you’re in court, you want to tell your client’s story to the trier of fact, whether it be a judge or jury. It’s not good enough to have your client or his mother take the witness stand and lay things out. You’re much better off having it come out of the mouths of some independent witnesses – people who have no apparent agenda or desire to help either side.
In order to do this you should have a list of the things you can’t use to build your side of the case up. Along with the list, you should also know which witness will testify to each item on the list. Then like a puppeteer, you call witness after witness, ask the questions in any order you want, and elicit the answers you need. There’s no need to worry about the proper order, because you can straighten all that out in your closing argument, when you ‘sum up’ all the answers you received and put them in the proper order for the jury.
Of course if you’re going to have the answers to all the questions, you must have some way of getting them in advance of the trial, so the courts allow for what’s called ‘civil discovery,’ which takes the form of written ‘interrogatories’ (Interrogs), or the taking of oral testimony under oath at a ‘deposition.’ There are also some other tools in our kit, like the right to subpoena documents, demands for admissions, statutory offers, and some other tricks that are better left to qualified paralegals. All the trial lawyer wants are the answers.
On Stuart’s case, I plan to use the Interrogs not only as a means of getting answers to some questions I’d like to ask, but also as a ‘spear,’ to give them some indication of how deep I want to probe the other side’s affairs.
Accordingly, my questions to them include information as to how they get the fax numbers they send their junk out to, as well as what those numbers are, what their procedures are for removing people who complain, how many faxes they’ve sent out over the past year, and on and on. They’ve obviously retained an attorney to help them, so there’s no reason not to make him work for his fee.
I’ve always had the suspicion that when you get one of those unsolicited junk faxes containing a number you can contact to be ‘removed’ from their list, it’s a number that doesn’t really work to remove you. Instead, it lets them know for sure that yours is a valid fax number – one that they should continue sending their junk to and sell to other junk fax broadcasters. With that in mind, I send Jack Bibberman to the nearby Santa Monica courthouse to do a naughty errand for me.
The written Interrogs are completed and sent along to the defense firm’s office, along with a formal Answer to their complaint – a general denial of everything. The real trick to sending Interrogs is to disguise the question you really want the answer to along with all the others, and hope that they don’t figure out which one you’re most interested in. My big question is in there and if Bibberman does a special task for me, that answer might make our case.
9
V
innie is calling. He want s to know if anything’s happening on his lawsuit. I try to be tactful. “Vinnie, you don’t have any property damage, you don’t have any lost wages and you have no medical bills to speak of, so let’s not get greedy on this one. It’s not going to be your retirement nest egg.”
“Yeah Mister Sharp, I know that, but they should still have to pay something… even a little maybe, for my inconvenience.”
“You’re right Vinnie, but if you’re looking for big numbers, I don’t want to see you disappointed. Just to give you an idea, I filed the case in Municipal Court, so if we get a settlement offer above five hundred dollars, I’d recommend that you accept it.”
“Okay, Mister Sharp. Stuart says to trust you completely, so I’ll leave it in your hands.” It took a few days, but now I’m starting to get results on some background checks that I requested – and there aren’t any surprises. Mike Drago, the slipand-fall claimant has no record. He’s a single guy who lives alone with no family to be found, and not even a parking ticket. Same results came back for Harold Blitzstien, with the exception of the fact that Harold has an ex-wife and a couple of kids somewhere. They both appear to be honest, hard working blue-collar types who never got into trouble with the law. The only real difference between them is that one is dead and the other is headed for death row, and both show the same amount of concern for their respective conditions.
The other one isn’t as clean, because as expected, Vinnie’s drunken stolen-car driver Harry Michaels has several ‘deuces’ on his record over the past couple of years. The section of California’s Vehicle Code pertaining to drunk driving was number had formerly been 502. When the code was re-written, the code section became number 23102. Because both sections ended in the number ‘2,’ that particular violation took on the nickname of a ‘deuce,’ which is a term instantly recogniz
able by anyone remotely connected with the criminal justice system in California.
Being a repeat offender, it’s no wonder that he didn’t drive his own car any more. Some judge probably lifted his license for at least a year. I don’t see any need to waste our assets going deeper into his record, because there’s no doubt he did what we think he did. Our case will depend on whether or not I can get the facts within the purview of the Dramshop laws and how bad of a guy the driver is or what his past record shows isn’t really relevant to our case. He could be either a mass murderer or a choirboy and the law should still be applied the same. Maybe a slightly different sentencing, but no change in the law on the way there.
The same goes for Mike Drago, the murdered slip-and-fall claimant, and Harold Blitzstien, the murder-on-video client. Add Stuart’s spammer into the mix and you have four cases where background, criminal history and character don’t come into play. All that counts is their actions.
If I have to go to trial with these cases on matters where all that counts is the evidence, and there’s no problem interpreting that evidence, then I’m going to have to come up with some strategies that test the law itself, and not the character or credibility of any witness.
Almost two weeks have gone by. Answers to both sets of Interrogs have just come back on Vinnie and Stuart’s cases. I’d like to spend some time going over them but I’ve got an appearance to make on Harold Blitzstien’s case. His arraignment was continued ten days last time and it’s set for this afternoon. I still don’t know what I’m going to do for his defense.
by Reason of Sanity Page 5