How Can You Defend Those People? : The Making of a Criminal Lawyer

by James S. Kunen

  The fountain on which the statue stands doesn’t run anymore. It fills up with rainwater and other stuff, and smells like a sewer. Diana’s gold finish was half-covered with brown crud, or so I thought, until Jan and I tried to polish her up one Saturday and found that she was not gold covered by brown dirt, but brown base metal covered by gold leaf, half of which had worn away. Score one for the pessimists.

  I went on in to the weekly lunchtime staff meeting, which was devoted for the most part to comparing notes on judges and prosecutors so we could have the benefit of one another’s experience, rather than to planning concerted action, such as “Let’s all refuse to plead anybody guilty until the U.S. attorney’s office has to improve its plea offers or face a complete breakdown of the system.” We weren’t a radical organization. Anyway, our first duty was to our individual clients. You can’t force one client into a road accident of a trial in order to win better plea offers for other clients in the future.

  I interrupted the meeting toward the end by excusing myself with the announcement, “I have to leave now. I am going to win a case with my final argument.” I was trying to paint myself into a corner, after the manner of Dr. Norman Vincent Peale, deservedly the most influential clergyman of our century—influential on me, anyway. I had decided that there was too much complaining in our office about the judges’ being biased toward the prosecution. Of course they’re biased toward the prosecution. That’s like a baseball player complaining that first base is ninety feet away. Just get on! Little bingle!

  In summation I argued that Mr. Park’s English, like that of the interpreter provided by the prosecution, was incomprehensible; that Mr. Jesse was blind; that Mr. Mulberry’s testimony was a shambles; and that, unfortunately, it was therefore impossible to know with any degree of certainty what had happened on that fateful day, ergo there could not but be a reasonable doubt, ergo the only possible verdict was not guilty.

  The judge agreed. Todd walked out a free man, and a free man he remained, for two weeks, until he was convicted in his other case, of burglarizing Mr. Park’s store, as the prosecutor gloatingly informed me.

  §4-18

  Roberto Lewis’s camera-robbery murder trial was one week away.

  Our shrink reported that Roberto “claimed that he had ultimate freedom in the jail and could come and go as he pleased. As evidence, he offered that he had yesterday visited his mother’s home.” Roberto also described hearing voices “just laughing at me.” Nonetheless, the psychiatrist concluded that Roberto was “not suffering from a substantial mental illness, at least in the customary interpretation,” and advised us to forget about an insanity defense. He emphasized Roberto’s “hostility and capacity for harm … [Roberto] warned that if anyone tried to make him plead guilty, he would ‘punch him in the mouth.’ Obviously, he should be approached with caution.”

  Roberto was his same old laconic self as he shuffled into the jail interview room and gave me his hand. I had nothing to fear from him. We grew up in court together.

  “If we go to trial on Monday, you’re going to be found guilty of first-degree murder,” I said, “and you’re going to get twenty to life. The judge isn’t even going to have a choice. How old are you?”

  “Seventeen.”

  “Twenty years is even longer than your whole life. Do you follow basketball?”

  “No.”

  “Well, anyway, picture this.” I wasn’t prepared to switch metaphors. “A young kid, just out of college, a hot prospect, joins a pro team. He’s a rookie, and no one’s sure if he’ll make it. But he’s great, all season long, all eighty games. And he comes back the next season, and he’s great again. And the year after that. Year after year. He becomes the backbone of the team, the main man. He gets older. He slows down. They have to rest him a lot. But he’s the grand old man of the team. Finally, after ten years, he quits because he can’t run anymore, and they have a celebration for him, and they retire his uniform, they put it in a museum, because he is the team, people don’t know how the team is going to get along without him. But the team is lucky because they’ve found a great college player, and they sign him. He’s a rookie. He does great all season long, and the next one, and the next. He carries the team, he’s Mr. Basketball, for ten years, until he’s too old, and they put his jersey in a museum.

  “You take those two careers, those two whole lives in basketball, that’s twenty years.”

  Roberto didn’t say anything.

  “Let me put it to you this way,” I said. “It’s forever.”

  Roberto just kept looking at me.

  “And the worst thing about being locked up isn’t that if you walk twenty feet in any direction you hit a wall; the worst thing is that you don’t have any control over your own life, isn’t it? You’re like a crate in a warehouse. If you plead guilty, the judge could give you the Youth Act, and you could work toward getting paroled. That means you’d have some control over your life. You’re a Muslim, right? In the Muslim religion, there’s a lot of importance put on learning, isn’t there?”

  “Uh-huh.”

  “Do you have a high school diploma?”

  “I’m workin’ on that now.”

  “You could work on that, then you could start taking college credits. And if you were studying and doing well and behaving yourself, they could take account of that, and they could release you. In maybe five years, seven years, ten years, you could get out. It’s a long time. But, the point is, what you do could affect your life. If you don’t plead guilty, you are going to do twenty years. You could invent a cure for cancer, and you’d just stay in prison and read about it in the newspapers. Nothing you could do could affect your life.”

  Roberto smiled and lowered his eyes.

  “If you want to think it over, we can ask for a mental observation to determine if you’re competent. That would put the trial off sixty days.”

  “What’s ‘competent’?” he asked. I’d explained it to him before, but he hadn’t been interested.

  “First of all, it means you understand what’s going on in court. Like, do you understand the judge is like a referee between two lawyers—one for the government trying to convict you, one for you trying to get you off. You understand that?”

  “Yeah.”

  “But some people don’t. They’re not competent. Like they think the judge is Rockefeller and the defense attorney is somebody from the CIA.”

  Roberto threw his head back and laughed. I always liked to tell him little jokes.

  “I think you’re competent. We just need the sixty days for you to think. One thing for sure, you don’t want to plead guilty and then feel you were rushed into it.”

  “Well, I think I want to plead guilty,” Roberto said, “but would you call my mother and tell her about it? And I want the sixty days to think.”

  “Okay. But if you do plead guilty, and the judge sentences you to twenty to life anyway,” I hastened to add, lest he think I was promising him anything, “we’re not going to go, ‘Oh, my God! Why did we plead guilty?’ because that’s only the same thing you would have gotten anyway.”

  Remembering his Muslim religion, I said, “I hope I’m not offending you, using God’s name in vain.”

  “It’s all right,” he said.

  As I was driving away, it occurred to me that it was a little bit ironic, my saying, “I hope I haven’t offended your sensibilities, taking the Lord’s name in vain,” to someone who shot somebody for a camera. What it is—I put myself in my client’s position, entirely. I don’t think about the victim very much, nor should I.

  “You forget that this is just a kid,” Ken Lloyd told me when I related Roberto’s request that I talk to his mother. “What his mother thinks is very important. Try to get her on board for a plea.”

  Roberto obviously had denied to his mother that he’d shot the guy. And the biggest obstacle to pleading guilty, all along, had been that if he pled guilty, he’d be admitting to his mother that he’d killed someone, and th
at he’d lied to her when he said he didn’t.

  When I called Roberto’s mother to make an appointment to see her the day after next, she said that she’d lined up a ride to go shopping that day, and asked if it could wait. I accommodated her.

  (“You wonder why he kills people?” Lloyd said.)

  A few days later I took Pennsylvania Avenue a mile and a half southeast from the White House, across the John Philip Sousa Bridge, over the Anacostia River, to Anacostia. The beauty of that sequestered fourth of Washington would surprise the nine out of ten white Washingtonians who, having no reason to go there, and being afraid to go there, have never been there. (When Air Florida Flight 90 crashed into the Fourteenth Street Bridge on January 13, 1982, Ted Koppel, the Washington-based ABC News anchorman, said that the rescue helicopter had taken off from “Anacostia, Maryland.”)

  Pennsylvania Avenue rose steeply from its river crossing, past stately fieldstone mansions into the woods of Fort Davis Park, where Alabama Avenue veered north, along the forested border of Fort DuPont Park, site of summer public jazz concerts which I was never sure it was “all right” for me to go to. As Alabama descended, the big houses of the hill’s crest gave way to neatly kept working-class cottages, and those, in turn, to the projects in the scrubby hollows along Benning Road.

  The projects, depending upon their vintage, were different from one another, but they were more different from everything else. One type, with a tall brick smokestack at the end of each two-story, four-entry apartment block, looked like ancient mills in need of a stream. Another type, squat, rectangular buildings with cracked concrete steps leading to green iron doors, looked like so many cell blocks. A third type, product of a more recent and liberal time, was distinguished by façades that stepped in and out, and gabled roofs—a reasonable facsimile of lower-middle-class “garden apartments,” except that there were no bulbs in the fixtures over the torn screen doors; the rot of the window frames, which had not seen paint in ages, had been accelerated by cascading water from the rusted-out roof gutters; and erosion had transformed the lawns into backyard badlands of six-inch buttes and canyons. All of the projects were clearly projects, designed to communicate the same reassuring message to the subsidizing taxpayer: you wouldn’t want to live here.

  Mrs. Lewis lived in one of these “garden apartments.” She invited me to sit down on the gray plush sofa in her living room, which was decorated with faded color graduation and communion photos, in Woolworth’s gold frames, of some of her thirteen children, and a dozen high school football trophies won by one of Roberto’s brothers. Behind the sofa, a single row of gold-flecked mirror tiles crossed the middle of the wall as far as the exposed water pipes in the corner. A K-Mart stereo radio pumped rock and roll from the windowsill across the room.

  Mrs. Lewis was an enormous freckle-faced black woman of about forty-five. The great weight of her body matched the great weight of her life. (Besides Roberto, she had one other kid in trouble—a son doing time for armed robbery—and he had enemies in prison, and she feared he might be killed any day.) With an effort she lowered herself into one of the matching gray chairs facing the sofa.

  Speaking loudly over the stereo, which only I seemed to hear, I explained to her, not for the first time, her son’s limited options. She nodded expressionlessly and said, “Um-hum, um-hum, um-hum,” at regular intervals. I said that I thought Roberto was reluctant to plead because he didn’t want to admit his guilt to her.

  “Okay, then,” she said when I had finished. “I’ll tell him to go ahead and plead guilty.” She looked weary.

  I thanked her and drove back over the bridge to my world.

  §4-19

  That Saturday I got home from the office at 8:00 P.M.

  “Hi, I’m home!” I called brightly as I came through the door. Silence. “I’m home!” I shouted again.

  From downstairs, quietly, “Hello.” Amazing how much the intonation of one neutral word can convey. I went downstairs and was not surprised when Jan turned her back to me, her skinny little body a fortress, rays of anger shimmering off her golden-brown hair. That’s when I noticed the champagne, fresh fish, and strawberries she’d bought. I’d promised to be home for dinner by seven, and she’d taken off time from her own work as a graphic artist to put together this meal.

  You see, I had chosen to wait for the bus rather than pay for a cab. I should have known that was a mistake when I saw three buses leave, bumper to bumper, just as I ran up to the bus stop. But I was hoping against hope that there would be a straggler. I was made optimistic by the first foggy warm spring air of March, by distant lightning flickering silently behind the white Capitol dome, by the world-historic, here-I-am-in-Imperial-Rome presence of the Archives of the United States of America across the street from the bus stop. I let twelve cabs go by. Then I said, forget it, I’ll take a cab. Then there weren’t any more cabs.

  As I was waiting, alone except for some dauntless nineteenth-century hero (and his horse), I was thinking, it’s frigging Saturday night and I’ve just spent five solid hours writing a motion for someone who wants to withdraw his guilty pleas (to possession of drugs and a pistol) and go to trial. He pled guilty basically because he was guilty, and if he goes to trial, he’ll be found guilty. But I’m his lawyer now, and I know that a good motion to withdraw guilty pleas before sentence will succeed. It might accomplish nothing in the long run, but the point is he wants his guilty pleas withdrawn, and a good lawyer will prevail at that. The precedents are on his side.

  I’m thinking, what a way to spend my energy, my substance, my life—this is my life, this is it—on this deadbeat who’s guilty anyway, and who’s going to be found guilty anyway, all for some principle, that he should be getting the ultimate of my ability in service to him. That would be fine if I were fighting for welfare rights, or tenants’ rights, or any important cause that you could apply your legal talents to; but for some deadbeat—what the hell is the point of that?

  That’s what was creeping up on me at the bus stop: if I’m going to work till 8:00 P.M. Saturday, I should either be setting a precedent benefiting all poor people, or making a lot of money.

  “You have to remember that ‘frontiers of freedom’ stuff,” Jan said. “If he can withdraw his plea, you can withdraw your plea. It’s important.”

  If I had it to do over again, I’d take the first taxi I saw.

  §4-20

  Any crazy lead Howard Robbins gave me, I investigated, to fulfill my duty to investigate,* to convince him I was on his side, and to turn up evidence of his insanity. To convince a jury that a defendant is insane, what you want is lay witnesses, people like the jurors, who can testify to crazy things they have seen him do. Just because Howard was mad as a hatter, that by no means meant that a jury would find him not guilty by reason of insanity. My supervisor had a case in which a parade of psychiatrists retained by the defense, as well as the usually prosecutorial shrinks on the court payroll, testified that the defendant’s act was the product of a mental disease, and the prosecution couldn’t put on a single psychiatrist to disagree. The jury convicted him.

  Exactly what insanity is has always been subject to debate, but the debate has heated up considerably since a federal court jury found presidential assailant John Hinckley, Jr., not guilty by reason of insanity. Critics called the Hinckley verdict an unprecedented case of coddling the criminal, a verdict symptomatic of the degeneration of our courts, culture, and cojones. But the verdict was not unprecedented. In 1835, one Richard Lawrence was tried—in what was to become the P.D.S. office building—for attempting to assassinate President Andrew Jackson. Lawrence said that he was heir to the British crown, and that he had to get Jackson out of the way to strengthen his claim to the throne. He was “proven of unsound mind,” acquitted, and committed to a lunatic asylum.1

  Letters to the editor expressed outrage that Hinckley had been “let off” and would “go free.” In fact, like anyone found not guilty by reason of insanity (N.G.I.) in Washington, h
e was automatically committed to the John Howard Pavilion of St. Elizabeths Hospital, a facility sufficiently secure* and unpleasant to satisfy the most vengeful of penologists; and he will stay there until he can prove to a judge that he is no longer a danger to himself or others. Getting a psychiatrist to testify in support of that proposition is harder than ever, now that there are precedents for holding psychiatrists liable for damages when their released patients hurt someone. It’s a safe bet that Hinckley will be incarcerated as long as or longer than if he had been convicted and sent to prison.†

  All the controversy surrounding the Hinckley case has created the impression that insanity is a very wide loophole through which criminals commonly escape. In fact, of the 934 felony cases handled by the Public Defender Service in fiscal 1980, one ended with a verdict of not guilty by reason of insanity after a trial. (Five N.G.I. pleas were not contested by the government.)2

  After the Hinckley verdict, more than forty bills were introduced in Congress to modify or abolish the insanity defense in federal courts, and many state legislatures are considering changes.

  Insanity is a legal concept, not a medical one. In the federal courts, those of half the states, and in the local courts of the District of Columbia,‡ a person is “not responsible for criminal conduct if at the time of such conduct as a result of a mental disease or defect he lacked substantial capacity either to recognize the wrongfulness of his conduct or to conform his conduct to the requirements of the law.”6* A “mental disease or defect” includes “any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.”7