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

by James S. Kunen

  Everyone in the system knows roughly what a given case is “worth.” By balancing the seriousness of the crime and the defendant’s record (how much time the prosecutor wants the defendant to do), against the strength of the evidence and the skill of the defense attorney (how likely the prosecutor is to get a conviction), a specific deal is arrived at. Only when a deal cannot be agreed upon is it necessary to go to arbitration (a trial). Although prosecutors’ plea offers theoretically conformed to specific guidelines, in practice some prosecutors routinely dropped charges that could easily be proved, while others refused to give an inch, even trying to get the defendant to “eat the whole beef” (plead to all the original charges) by claiming to have all sorts of evidence—“positive” identifications, for instance—that didn’t exist. It was generally acknowledged that better offers were extended to defendants with P.D.S. attorneys than to those with most private attorneys, because of P.D.S.’s reputation for winning trials, or at least making them arduous. The particular plea bargain struck for a particular defendant, then, depended to a large extent on who his lawyer happened to be and who the prosecutor happened to be. In that respect, it was similar to the outcome of a trial.

  A primary function of the defense attorney is to advise his client whether the bargain offered is a fair deal, just as a personal injury lawyer tells his client with considerable exactness how much a particular injury is worth. The weaker the government’s case, the better the plea offer will be—so that an innocent person will likely be offered the greatest inducement to plead guilty. Conversely, a person caught dead to rights, of whose conviction the prosecution feels confident, will be offered very little and may have little to lose by going to trial.

  No decent defense attorney would ever urge an innocent person to plead guilty. Most innocent people simply will not plead guilty, anyway. The same is true of many guilty people. Since I couldn’t be sure with which category of person I was dealing, I would in every case ultimately give the same advice: “It’s your ass.”

  §5-01

  It was my second summer as a public defender.

  I could hear the Baltimore City Jail from a block away—a cacophony of blaring radios and shouting men. As I approached, I saw a few young women on the sidewalk, leaning up against the fence, bantering suggestively with the captive audience inside. The men were invisible from the street, but they could see me. “Hey, Slim! Slim!” someone yelled through a slit in the sooty stone wall. “Back up! Are you an attorney?”

  I was the attorney for Billy Pepperidge. He had been on parole from a Maryland auto theft sentence when he was arrested in D.C. for stealing another car, and had been shipped back to Baltimore to await a parole revocation hearing.

  A handsome young black man in an absurdly large gray shirt and gray pajama pants, prison garb intended to preclude his blending in with the populace in case of escape, was ushered into the jail’s interview area and sat facing me through an iron screen. He was wearing a tight white cap. The baggy clothes and tight cap made him look like an elf or forest creature.

  I thought my visit would be brief. Somehow I’d gotten the impression that he wanted to plead guilty in his D.C. case. Any reasonable person would have. Plead guilty to unauthorized use of a vehicle (five years), the government will drop grand larceny/receiving stolen property (ten years) and drop destruction of property (ten years). The evidence against him was overwhelming. The cops said he was driving a gray Scirocco in a “suspicious manner.” (He didn’t fit the young-and-white-in-Georgetown Volkswagen profile, I supposed.) They looked on their “hot sheet,” a printout of all the license numbers of cars reported stolen in the metropolitan area. The license was on the list. They radioed in to headquarters and asked whether the car was still unrecovered, a question quickly answered in the affirmative. They put their flashing lights on. The Scirocco sped off. High-speed chase. Crash. Three males got out and ran. The police caught only Billy. They found personal papers bearing his name in the car, which had been stolen seven days earlier.

  (A typical car parked on a street is worth $4,000 retail, twice that if cut up and sold for parts. A lucrative proposition, in some towns car theft is big business. You’ve got to figure the guy who does the stealing must get at least $1,000, be on easy street for a couple of weeks. In Boston, where the business is organized, there were 3,085 cars stolen per 100,000 population in 1978. In Washington there were only 472 cars stolen per 100,000 population in 1978.1 My clients had no connections. They’d steal cars and ride around in them until they got caught.)

  I explained the elements of unauthorized use of a vehicle: even if Pepperidge did not steal the car (grand larceny), if he “knew or should have known” that the car was being used without the owner’s permission, he was guilty of U.U.V.

  (All kinds of factors are relevant to the issue of whether a defendant “should have known” that a particular car was a stolen vehicle. One client of mine, a Black Muslim who had bought a two-year-old Camaro on a street corner for $2,000 from a blue-eyed blond man in a blue blazer, told me, “I didn’t think the car was stolen because he was a white guy. If he was one of my people, or any minority type, I would have figured there was something wrong, but he was a white guy.”)

  Pepperidge had fled when the police approached—strong evidence that he knew the car was stolen.

  “I was sitting in the back seat,” he said. “I didn’t know anything about the car.”

  “The best Perry Mason could get you is U.U.V.,” I said, “so why not waltz in now and have U.U.V. guaranteed, plus the sentencing advantages of pleading?”

  He looked me in the eye and said, “I’m not worried about the time.” He said that he pled guilty once, and he wasn’t going to make the same mistake again. He was promised certain charges would be dropped, and they weren’t.

  “Yeah, you’re not going to make the same mistake, you’re going to make a different mistake,” I said. “Last time you pled when you shouldn’t have; this time you won’t plead when you should. You’ve got to make a new decision for a new situation.”

  He said he would not plead because he was not guilty, and because a conviction would lead to the revocation of his parole: he would have to serve out the remainder of his Maryland sentence before even beginning to do his D.C. time.

  The air-conditioning was making me cold. I wanted to leave. “Okay,” I said, “it’s your ass. So, what happened?”

  He said that he wanted to buy drugs, but not on the street. So he told the drug dealer he’d make the buy in the dealer’s car. He got in the back seat. The dealer and another man, neither of whom he knew, were in the front. They drove around. A police car put its lights on. The driver sped off. He figured the driver was fleeing because he had drugs. When they crashed, he jumped out and ran.

  It was a good story. I thought it might be true. I should have listened to it before I urged him to plead.

  I told Pepperidge he had a chance, we’d give it a shot, and I’d give him a good trial. I didn’t tell him that I had never tried a case in front of a jury.

  §5-02

  I was sitting across the table from Roberto Lewis in the interview area upstairs at the D.C. jail. To prepare for his sentencing. I was trying to get some character references, which were, understandably, hard to come by.

  “There’s Mrs. Wayne. She was the general manager of the Sixty-fifth Street Apartments, but we had to move three years ago. Aunt Jean—she used to be a nurse—she’s knowed me all my life. My brother is in Lorton. He’s down there for accessory to a murder. I worked for PRIDE, Inc. My supervisor lived on Southern Avenue. My brother down at Lorton used to go with my supervisor’s sister. There’s Barbara Valley, my friend’s mother. She’s knowed me since I’m small.”

  “She’s nuts, isn’t she?”

  “People think she’s crazy because she goes to church all the time.” Roberto got up, walked to the window, and shouted to some girls hanging around outside, “I’m in for twenty years! I choked the President! Hold up! Ho
ld up! I’ll be out in a few minutes. I get out today.” He came back and sat down. “Her minister knows me. I went to that church.”

  §5-03

  At about 7 P.M. on July 14, 1980, two young black men boarded a Metrobus at Fourteenth Street, N.W., heading east on U. They were arguing about something. As they sat down in the rear of the bus, one said to the other, “I’m going to shoot you, nigger!” and did, with a .38, in the face. He jumped off the bus at Thirteenth Street opposite Ben’s Chili Bowl and ran away. The police arrived within minutes, talked to witnesses from the bus, and broadcast the following description of the gunman:

  “Black male, five foot seven, slim, twenty-one to twenty-two years old, white T-shirt, black Levi’s.”*

  At about 6:50 P.M., William Buie, a quiet twenty-two-year-old tree trimmer, had gotten off a Metrobus headed west on U Street, at Eleventh Street, right by Eaton’s Modern Barber Shop. He walked three blocks north to his home, washed up, and was walking toward his girlfriend’s house, toward the scene of the shooting, when, at 7:20 P.M., a policeman pulled up beside him and told him to stop.

  Buie was wearing black jeans and a white T-shirt bearing the words “Kansas, You Are the Sunshine of My Life,” a green four-leaf clover, and a brown and yellow sunflower. The officer radioed back to the scene, “Was there a design on the T-shirt?” He was answered, “Negative. Just a plain white T-shirt. But bring him back anyway.”

  Buie was put in the back seat of the police car and driven to the scene of the shooting. Two passengers from the bus were waiting with the police there. One was asked to close his eyes while the other looked at Buie, still seated in the police car. She nodded affirmatively. Then Buie was taken out of the police car and was walked a few paces away. The second witness then opened his eyes and affirmed that Buie was the perpetrator. A third witness, a little girl in the crowd which had gathered at the scene, also told an officer that she recognized Buie. He was placed under arrest. Two other black males brought to the scene because they were wearing black pants and white T-shirts were not identified, and were released.

  The victim arrived at the Washington Hospital Center MEDSTAR unit at 7:25, “with a history of gunshot wound to the leftside face,” according to the hospital records, “with cardiac arrest en route.” A .38-caliber slug was lodged in his brain. “After vigorous resuscitation, cardiac massage, with pharmacologic support, cardiac activity resumed. No spontaneous respiration. Neuro consult: brain dead at 9:09 P.M. Patient declared officially dead. Resuscitation stopped. At 9:13, spontaneous return of cardiac activity. Family consented to organ donation. Patient went into asystole [his heart stopped] before Harvest Team ready to receive him.”

  The next morning, Buie was herded into the lockup at superior court with four dozen other men arrested the previous day. He was sweaty and bleary-eyed after a sleepless night and wasn’t entirely sure that he wasn’t dreaming. Nothing made any sense, and everything was unfamiliar. Even the clothes he was wearing were strange and didn’t fit. They’d been given to him by the police when they took his shirt and pants for evidence.

  Finally a young white man on the other side of the iron screen called out Buie’s name. Buie rushed over. The man said his name was Kunen, and he’d been assigned to be Buie’s lawyer. It wasn’t clear exactly who this Kunen was or who had “assigned” him. Nevertheless, he was Buie’s best hope, and, in a torrent of words, Buie desperately tried to explain that a ghastly mistake had been made. The white guy seemed unimpressed, laconically observing that Buie’s innocence wasn’t “the issue” that day. He was more interested in a lot of biographical information which Buie had already given to the police the night before, and to somebody from the bail agency that morning. At last the white guy let Buie tell him his alibi. He said it was very good that Buie was able to remember everything he’d done, everywhere he’d been, everyone he’d seen the previous day. He said it was “unfortunate” that Buie had waived his Miranda rights and given all this information to the police in a signed statement.

  Five dirty, hot, tired, hungry hours later, Buie was passed in front of a judge for ninety seconds. Because he was a lifelong resident of D.C. with no criminal record, because he was employed full-time, because he lived with his mother, he was allowed to leave on “personal recognizance.”

  “Don’t worry, you have a good lawyer,” Kunen said.

  “I’m still worried,” Buie said.

  “What a dream case!” Kunen thought. “Innocent (?) man takes a BUS RIDE TO DESTINY.”

  §5-04

  I walked through the simmering sun of early Washington summer to the National Bank of Washington, being careful to give a wide berth to the side door in case some progressive elements had deposited a bomb at the office of the Argentinian naval attaché, which for reasons known only to the Argentines shares that obscure little branch bank’s building. Once safely inside the bank, I got eighty dollars out of the money vending machine, as pocket cash for a weekend trip to Virginia Beach.

  As I walked back to my office, I was dismayed to see Johnny Angell swinging toward me on crutches. Johnny Angell was a somewhat unsavory character, as was often true of my clients who had committed only trivial crimes, or, as in Mr. Angell’s case, no crime at all. An elderly man had told a police officer that someone had hit him in the head from behind and stolen a paper bag containing jewels. The policeman had driven the complainant around the neighborhood, and the complainant had pointed out Mr. Angell. Although Mr. Angell had no jewels and no bag, he was arrested.

  Mr. Angell had lived in doorways, shelters, and mental hospitals for most of his forty years, occasionally joining the work force as a dishwasher during periods of lucidity or self-discipline. He received workmen’s compensation checks, which, rather remarkably, he deposited in a savings account against a truly torrential day.

  I cited his history of employment and frugality as “indicia of reliability” at his arraignment, arguing vehemently that Mr. Angell should be on the street (literally, in his case) while awaiting trial. Judge McCord, one of the more earnest fellows on the bench, asked me if I weren’t concerned that Mr. Angell, who was both ranting and raving even as we spoke, might harm himself, were he at liberty. I suffered one of those inexplicable lapses into guilelessness which beset me from time to time, and replied that it was not my job to worry about that; my job was to get what my client wanted, and my client wanted out. (After all, no one would question my arguing for the release of an accused murderer, and if a possible murderer, why not a possible suicide? It’s a distinction without a difference.)

  The little judge flew into one of his daily earnest rages, upbraiding me for being an “idealist” with abstract notions of legal duty and no contact with reality, adding that I typified everything that was wrong with the Public Defender Service. I was pleased to hear all that, because I did not believe in the doctrinaire statement I had just made, and I shared the judge’s preference for doing what you think is right, as opposed to what you are supposed to do—although I know such thinking causes horrendous traffic jams, among other things.

  The judge ordered Mr. Angell held at the jail until such time as he posted his two hundred dollars’ life savings for bail. As he was being led away, Mr. Angell, to express his displeasure with the court and its functionaries (me), ripped his forearms with his fingernails. This earned him a “thirty-day inpatient mental observation.” The judge pointed out to the entire courtoom that Mr. Angell’s self-destructive behavior had proved just how wrong Mr. Kunen had been. Of course, the judge had his causal chain hopelessly snarled—Mr. Angell had mangled himself because the judge detained him. I let it go. It was just one of those days.

  There was nothing wrong with Mr. Angell that a little Thorazine couldn’t control, and after a mere five weeks of incarceration, he was allowed to bail himself out.

  And here he was hobbling toward me outside the bank.

  “What happened to your foot?” I asked, glancing at the filthy cast on his ankle. He mumbled something abo
ut a bus.

  “Could you lend me some money, Mr. Kunen?” he whined.

  “I can’t do that, Mr. Angell. Do you know how many clients I have? If I give it to you, I’d have to give it to everybody.”

  “Please, Mr. Kunen. I only have two dollars, and I can’t go to my cousin in New York because I have to stay in town until the trial.”

  Like all conversations with unwashed, urine-soaked people in the hot sun, this one had gone on too long.

  “What am I supposed to do, Mr. Kunen?”

  “How do I know? Do what you always do—be poor,” I thought. “Okay,” I sighed, and reached for my wallet. I was damned if I was going to give him a five. I gave him three singles.

  He looked at the bills with undisguised disappointment, but he thanked me. He was nothing if not polite.

  “Take care of yourself,” I said.

  The case against Mr. Angell was dropped a month later. The U.S. attorney’s office makes a practice of not revealing why a case is dropped. In Mr. Angell’s case, it is likely that the complainant could not be found by the government. I know we couldn’t find him. Mr. Angell was not in a position to recover damages from the government because he would have been unable to show that the police had acted in “bad faith.”

  §5-05

  Jan and I were lying on a broad yellow beach by the dark-blue sea of Block Island. The sun was so bright and the air so clear that everything, even distant objects, took on that hyperclarity, that surreal sharpness that renders all beach scenes dreamlike and inseparable one from another. Roberto Lewis was at that time being “studied” in a federal prison, to be sentenced right after my vacation, and we were talking about him.