Judge Quinn wore his black robe in such a way that his white collar looked like a priest’s, and he had a priest’s pallid complexion. The only color in his face was a small red triangle on each cheekbone. He had small eyes, small ears, a small nose, and his mouth was a downturned lipless slit that barely moved when he spoke, perhaps accounting for his Cagneyesque gangster pronunciation, which I otherwise might have suspected was put on. What vitality he had was all in his big, athletic hands, which had a seemingly endless list of personal tasks to attend to. His thumb grazed one cheek, his index finger the other, as though checking how close his shave was. (Not very.) His index finger scratched his sideburns. (Scratching the top of his head was his gold-ringed fourth finger’s job.) Sometimes his nose needed support, which was provided by his finger as joist transferring the weight to the cheekbone via the thumb. Sometimes his nose needed other services.
His handling of the cases before mine was not encouraging. Upon being told that the trial date he had set for two black respondents was Lincoln’s Birthday, he chuckled and mumbled audibly, “Lincoln’s Birthday—that’s ironic.” When a lawyer argued that his client should be released to his mother, who was in court, Judge Quinn said, “I don’t think much of your client, and I don’t think much of his mother, either.” He locked up a kid for violating a condition of his pretrial release—“no further arrests.” The defense attorney, a quiet but courageous fellow, stood with his hands clasped in front of him, examining the tabletop. “Well, Your Honor,” he said, “unless he’s guilty of the crime, being arrested really isn’t something he’s responsible for.”
“The presumption of innocence is a legal fiction!” Judge Quinn shot back. “He’s guilty! He knows he’s guilty, and I know he’s guilty!”
I composed a rejoinder to have ready should the judge ever dare say such a thing about a client of mine: “Your Honor, are you saying that my client’s guilt is a foregone conclusion, that everything from here on out is a charade?” Because that’s what the client must have been hearing, and that’s what he’d think of the whole system. Judges like Quinn were tremendously destructive to the law and order of the system, which lawyers like me tried to preserve.
(On being told of my planned retort, an older defense attorney said, “In fact, what the client’s probably thinking is, ‘Who is this man? How can he possibly know already that I did it? I just got through convincing my lawyer that I didn’t do it.’”)
Juveniles do not have a right to bail. The judge can order them detained pending trial if he has grounds to believe they will not show up for trial or are a danger to themselves or others.
I argued that Wyatt should be released because in his past dealings with the court, he had never failed to appear; he was in school, and had a job; his mother would keep an eye on him; and he could be adequately supervised by the probation department’s “home detention program,” under which he’d be checked three times a day to make sure he was in school or in his house, and nowhere else. “Your Honor,” I concluded, “Wyatt is eager to come to trial, because he steadfastly maintains his innocence.”
“You know,” Judge Quinn responded, looking past Wyatt and me to the courtroom in general, “I’ve been to lots of fish markets, and the signs I see always say ‘Fresh Fish.’ I’ve yet to see a sign that says ‘Stale Fish.’” His upper lip rose slightly, exposing his teeth in a mirthless smile.
The fraudulence of fishmongers notwithstanding, Judge Quinn released Wyatt Clayton to home detention until trial.
Rennie Jefferson, my other client that morning, was eleven years old, but looked like the cutest eight-year-old you ever saw. He’d been picked up on a custody order (juvenile arrest warrant) for having failed to appear at a probation review two months earlier. He’d been charged with burglary during the summer, pled guilty to unlawful entry, and been put on probation. He told me that he had actually come to court when he was supposed to, but then had turned and run because he was afraid he’d be locked up.
Judge Quinn ordered Rennie detained overnight so that he could be brought before Judge Wexler, who had sentenced him and therefore was responsible for reviewing his probation, in the morning.
I followed him back to the lockup behind the courtroom, where he sobbed quietly. The other, older boys backed against the wall to leave him alone as best they could in the five-by-eight-foot cell.
“Do you feel like a bird in a cage?” I asked.
He shook his head no.
“Do you feel like a boy in jail?”
He nodded yes.
I told him I would be in court the next morning to argue for his release.
The next morning I found his mother, a rotund woman in a worn-out cloth coat, outside Judge Wexler’s chambers. We went over what the judge would want to hear, what she should say, what I would say. I was confident we could get Rennie released. All he’d ever done was one crime, and in three months of probation he’d been in no trouble, although he was flunking everything in school and seldom kept his appointments with his probation officer.
Just then, the private attorney who had been appointed by the court to represent Rennie in his original burglary case arrived, a bald man with hair flying in random directions over his ears. He hadn’t shaved in two days. He was wearing a ratty tweed overcoat, and red and gold checked pants tucked into black army boots. This was Mr. Wickersham. He would have made a charming Royal Doulton figurine, but it was extremely unsettling to have him as your lawyer.
I had to defer to Mr. Wickersham. It was his case. I explained to him what had happened, and what we were planning to say: “Obeys his mother, goes to school, keeps curfew, no trouble with the law.” I asked if I could observe the hearing.
“Certainly,” Mr. Wickersham said as he fumbled through his briefcase, looking for Rennie’s file.
We went in. I sat down at the opposite end of the table from Judge Wexler, an intense woman who seemed to think that everybody in the world was a member of her own family, so disappointed in them was she. Mr. Wickersham sat by the judge. Rennie sat by me.
“Sit by your lawyer,” the judge said. Rennie moved to Mr. Wickersham’s side. Mr. Wickersham did not look at him.
“I’ve seen his probation report. It’s a very bad report,” Mr. Wickersham said. That was all he said.
Mrs. Jefferson leaned over to me and whispered, “I don’t like him. He never says anything.”
The judge decided she wanted a full probation review. The probation officer was on vacation, and since Rennie couldn’t be trusted to come in, he would have to be locked up for a week. Rennie pulled his sweater up over his eyes to hide his tears. He had learned a lesson: he was right to run away the first time—you come to court, you go to jail.
After the hearing, Rennie’s mother asked me to take Mr. Wickersham’s place. I explained that her request involved a sensitive area of legal ethics: thou shalt not take another lawyer’s client without the approval of the other lawyer.* Mrs. Jefferson would have to write a letter to Mr. Wickersham asking him to withdraw—she had asked him twice already—and send a copy to the judge, with a cover letter asking that a new lawyer be appointed. But she had to make it clear that she was not trying to “pick and choose.”
The court won’t let an indigent client dump his assigned counsel just because he happens to think the lawyer’s doing a lousy job. Half of the defendants have lawyers who are doing a lousy job, and the other half might ask for new counsel just to delay their trials. The calendar won’t move at all. Beggars can’t be choosers.
Mrs. Jefferson would have to say Rennie needed a new lawyer because he couldn’t communicate (buzzwords, B-ding! B-ding!) with Mr. Wickersham. That would give the judge a palatable reason to appoint new counsel. I typed out the letters for Mrs. Jefferson.
Later that morning I found myself standing in a men’s room beside none other than Mr. Wickersham. I told him that Mrs. Jefferson was unhappy with him, and that I had suggested she take it up with him.
“I can’t get off
the case,” he said with a shake. “I need the money.”
Mr. Wickersham was one of the private attorneys who put themselves on a list from which the judges appoint counsel for three quarters of the indigent criminal defendants (and juvenile respondents) in D.C., the Public Defender Service representing the remainder. (This is the reverse of the ratio in most cities, but Washington is not most cities. For one thing, 37,000 lawyers are members of the D.C. Bar, 13,000 of them actively engaged in private practice. The entire state of California, with thirty times the population of Washington, has 72,000 lawyers.) About two hundred attorneys accepted such appointments regularly. Many of them were young attorneys just starting out, or old attorneys fading out, or incompetent attorneys hanging on. Some of them were diligent and capable, but the amount they were paid by the court was totally inadequate to support proper preparation of a case. They were theoretically entitled to $30 for each hour spent in front of a judge, and $20 an hour for out-of-court work, the total compensation not to exceed $400 for a misdemeanor or $1,000 for a felony. Trial judges could get authorization from the chief judge to pay over the limit for a long trial. They could also decide arbitrarily to pay less than what the lawyer billed. The lawyers never knew what they were going to get paid and had to wait anywhere from three weeks to eighteen months to get paid at all. Only a couple of dozen earned the $27,000 per year which was the maximum the court would pay until 1981, when the limit was raised to $42,000, a level attained by only three or four.
Public defenders, on the other hand, work for a salary and therefore have no economic motivation to stint on the number of hours devoted to a particular case. In some cities, public defenders are so overburdened that this economic factor has no practical effect, since they haven’t enough time to do anything. At New York City’s Legal Aid Society, for example, criminal defense attorneys each often have from seventy to a hundred active cases—one of the reasons they went on strike in 1982. But the Public Defender Service for the District of Columbia, which has been declared an “exemplary” defender office and held out as a national model by the Law Enforcement Assistance Administration, handles manageable case loads, about thirty-five active cases per attorney, with the politically touchy result that its indigent clients often get better representation than the unrich nonpoor can afford.
Ironically, many defendants prefer private attorneys to public defenders, on the theory that anything “public,” like public transportation or public schools, must be crummy. (An extreme example of this image problem prevails in New York, where, in the argot of the street, Legal Aid attorneys are called “Leeg-aides” and are widely thought to be something less than full-fledged professionals in their field, like teachers’ aides or nurses’ aides.)
Private attorneys paid by the court, though at least not “public,” suffered along with public defenders from the stigma of representing their clients at little or no cost to them. (Indigent defendants found to be not utterly destitute were required to contribute at most $300 toward the cost of their defense. If they could afford more, they had to get their own lawyers.) If you get what you pay for, how good can a free attorney be?
Rennie Jefferson never did get a new lawyer.
§3-02
The elderly black woman walked up to the bus stop on the corner of Eastern Avenue and Varnum Street with short, stiff steps, as though the January cold had made her sticklike legs brittle. The sun had just sunk behind the white-columned Northeastern Presbyterian Church, casting a long shadow over the brown Plymouth sedan parked in front of it. Across the street, the silver coin-return lever on the Coke machine by the door of the Citadel gas station glinted in the day’s last light, even as the illuminated plastic canopy over the pumps grew brighter against the fading lavender sky, its orange letters proclaiming DISCOUNT CIGARETTES SODA PET FOOD. The air was so clear that it looked to the two burly white men in the Plymouth as though they could reach out and touch the red knit cap on one of the boys who were running up behind the woman.
Sound, too, had a winter sharpness, the men in the car hearing with equal clarity the screech of starlings in the church steeple, the thup-dup, thup-dup of tires on the seams of the concrete avenue, and the old woman’s cry for help when the boys grabbed her purse. One of the men reached through his window and attached a flashing red light to the car’s roof. Whoop! Oh wow! Oh wow! Oh wow! …
I didn’t see or hear any of this, of course.
Richard Joe Madison—the boy in the red hat—and his friend had made the mistake of attempting a purse snatch right in front of two plainclothes cops. Richard became my client and ended up pleading guilty to assault. A shy sixteen-year-old, blind in one eye, he never would have punched the lady if she hadn’t refused to let go of her purse, or even then if he had thought for a second that she was a human being, who felt pain, like his mother.
His mother called me almost every day, always reminding me not to identify myself if someone else answered when I called back. She worked as a domestic for a rich family who would not have wanted crime-in-the-streets dusting their furniture. Her deep, strong voice faltered when she talked about Richard. She was concerned, she was saddened, and she was perplexed: Richard was a good boy. How could he do such bad things?
“Thoughtless,” I said.
* * *
At the plea, Judge Quinn told Richard he was letting him out for now—he’d been detained for the month since his arrest—but his only chance to avoid getting locked up at sentencing was to go to school (which he hated, maybe because he was two years too old for the ninth grade, and was reading at the fourth-grade level), work at his part-time job, see his probation officer regularly, go to his tutoring program, avoid his past associates, and cooperate with his counselor at Washington Streetworks, the community-based counseling program in which I had enrolled him.
No sooner did Richard walk out of the courthouse than the probation officer who was to write his pre-sentence report told me that she was going to recommend that he be locked up “unless I hear all the right noises from him.”
The “right noises” are to admit your guilt, take full responsibility, and say you are sorry.
“You have to make the right noises,” I told Richard when I prepared him for his pre-sentence interview with the probation officer. “You shouldn’t say anything that isn’t true, but I’m sure you can say you’re sorry and mean it, because you don’t want to be locked up.”
He said he understood.
§3-03
My wife Jan and I left our house at three o’clock in the afternoon one Saturday in my first winter as a public defender. We returned a few hours later. I was thinking, “We’ve got to clean this place up. It looks like it’s been ransacked,” when Jan shouted, “Jim, the stereo!” Burglarized. All of our negotiable instruments were gone—the stereo, the camera, the cassette recorder. Nothing else was taken—in and out quickly, that’s the key to success in that business—and we were insured, but I felt like looking up “booby traps” in the Yellow Pages.
(It is fair to say we were unlucky. There were 16,260 burglaries reported in Washington in 1980, which is only about 26 for every 1,000 people. The average in twelve American cities of comparable size to Washington, in 1980, was 30 per 1,000 people. St. Louis had 45; Denver, 40; Oakland, 39; Boston, Cleveland, and Minneapolis, about 31; Milwaukee, only 15. Overall, Washington is not a particularly crime-ridden city, as American cities go, although many whites assume it is, simply because its population is 75 percent black, and years of racist demogoguery have forged an association in whites’ minds between race and crime, which obscures the meaningful correlation between poverty and crime. Of the twelve cities, Washington ranked tenth in reported property crime and fifth in reported violent crime. St. Louis had the highest crime rate in both categories, Milwaukee the lowest.1 Compared to other national capitals, Washington’s property crime rate is moderate—lower than Paris’s or Ottawa’s; its violent crime rate astronomical.2)
At work, everyone expressed since
re outrage that such a horrible thing had happened to us—“It’s the idea of someone invading your home”—then went back to work defending alleged burglars, as did I.
Reginald Chatsworth Dickinson, a slight, stammering, fifteen-year-old burglar, studied the green industrial carpet on my office floor as he told me what he had told the police: he had successfully hit two houses in Georgetown (my neighborhood) before he was caught in a third.
I fought back the urge to ask him if he happened to have burglarized my house. Any suggestion that I identified with the victim—let alone that I was the victim—would taint the lawyer-client relationship. It was always a challenge to convince my clients that they could trust me. I was very good at it—maybe because I looked them in the eye, maybe because they could trust me. I did ask him about his modus operandi, and learned that he and an adult friend would knock on the front door of a house; if someone answered, they’d ask for “Tony.” If no one answered, they’d go around back, put lots of adhesive tape on the windows to keep them from shattering noisily, and then smash them with a stick. My burglar had very neatly sawed out the wood between two windowpanes, lifted out the glass, and waltzed through. Satisfied that Reginald had not burglarized me, I didn’t have to worry about any conflict of interest in representing him.
According to the police report, Reginald had stolen, among other things, a Canon camera (just like mine). I asked him if he still had any stolen property. He said he’d sold the last of it yesterday.
“Reginald, that’s another crime!” I said, not quite accurately.* “You’ve got to stop doing this stuff.”
He smiled. He had a beautiful smile. He tipped his head back slightly; his eyes sparkled. Then the smile vanished, and he returned to his stolid self.
How Can You Defend Those People? : The Making of a Criminal Lawyer Page 7