“Roberto says, ‘Oh my God, this guy’s gonna take this gun away from me and kill me,’” I said. “And he falls back, and there’s an explosion. And the guy’s lying dead. What can Roberto do to make that moment not exist? Does he really have to spend the next twenty years locked up because of that quarter of a second? The court’s saying, ‘Don’t do that!’ But he already did it. What effect will twenty years have that ten years wouldn’t have?”
“Deters his friends,” Jan said.
“Then ‘justice’ is ‘screw somebody over to affect somebody else’s behavior’?”
“What about the ‘villain’ who happened to be walking down the street with the camera?” Jan demanded.
“What does it have to do with him?” I asked.
“You’re talking about justice,” Jan said.
“What does it accomplish? Twenty years does nothing for the victim. As far as deterring others, it’s not fair to use Roberto for that.”
“Roberto crossed the line when he went out there with a gun,” Jan said—the archetypical “reasonable person,” she had just invented the felony-murder law.
Judge Davis sat impassively and Roberto stood still, two poles between which my co-counsel Lloyd and I vibrated as we argued for an indeterminate sentence under the Youth Act.
Touching the highlights of our previously submitted sentencing memorandum, I reminded the already decided judge that Roberto’s record of prior offenses was “not indicative of a hardened heart,” and that “the instant offense” had not involved an intent to murder; rather, Mr. Lewis had set in motion a chain of events that ended in tragedy. According to his “uncontroverted confession,” he fired in a moment of panic. He had expressed remorse on more than one occasion.
The judge’s eyebrows slowly rose, then her chin elevated and her face tipped back, as though her whole head were hydraulically controlled by the brows. She looked through the bottoms of the big square glasses balanced on her tiny nose, and carefully blinked. Blinking was her broadest gesture. She would vary the speed and the height to which she lifted her eyelids, and might blink anywhere from one to three times, depending upon how emphatic she wanted to be. This was merely a “Continue, Counselor” blink.
I pointed out that Roberto’s problems had not begun with himself. The eighth of thirteen children of an alcoholic father, Roberto was himself an alcoholic; he read at the third-grade level; and he had, according to the pre-sentence study, a “feeling of inadequacy which creates anxiety feelings and causes him to withdraw into emotional apathy.”
I concluded by quoting a D.C. jail guard: “‘Roberto’s not a bad guy, really. He has a mental problem. If you pay attention to him, he’ll respond.’”
The judge blinked “thank you” and turned to Ken Lloyd.
Lloyd, having delegated the emotional appeal to me, got down to facts: we were asking that Roberto be given an indeterminate sentence under the Youth Act and be sent to a federal prison facility,* where he would come under the authority of the Federal Parole Commission. According to the federal commission’s “salient factors” formula, which weighs factors such as the defendant’s age, the severity of the offense, the number of his prior convictions, and his history of narcotic dependence, there was no way Roberto could get out in less than eight years; so the judge could give him the indeterminate sentence we sought, without fear that he’d be right back on the street.
Lloyd then addressed himself briefly to a troublesome new problem: while in jail awaiting sentence, Roberto had been involved in a brawl among inmates, one of whom sustained a skull fracture and died. Roberto was charged with another first-degree murder. He had yet to be tried, and was “presumed innocent,” but the judge was free to take the new charge into consideration when she decided on Roberto’s sentence.
Lloyd stressed that Roberto was charged with criminal responsibility for the jail death as an “aider and abettor.”† No one claimed that Roberto, personally, had fractured the dead man’s skull. Anyway, there was strong evidence that the decedent was done in not by the head injury, but by malpractice at D.C. General Hospital. And Roberto’s involvement “could best be characterized as stupid and impulsive, not calculated or cruel.”
It was Roberto’s turn to speak.
Sentencing is no time to start being honest. It would not do for the defendant to say, “I don’t like the consequences for me of what I did, so I won’t do anything like that again.” Renunciation and transformation are what’s called for.
The big favorite with judges is “I thought a lot about it, and I realize I wouldn’t want somebody to do it to me.” Personally, I always find it hard to believe that the defendant just discovered the Golden Rule. Nor can I believe that, after long familiarity with the Golden Rule, he suddenly understood it. I don’t understand it.
What is the logic of the Golden Rule? Is it utilitarian: if each of us does no harm, then harm will be done to none of us? Or does it rest on a belief in a just world: if I do no harm, then I won’t merit being harmed, so I won’t be? Or is it something about harmony/unity/integrity (Walk it like you talk it) as an end in itself? Or is it just God’s law: I won’t do this because God doesn’t want me to? (That’s a reason?) I try to observe the rule, but I don’t claim to understand it.
Judges love it, anyway. And lawyers know that, so they tell their clients to say it. The clients say it, and the judges figure, “Of course he doesn’t mean it, but at least he was willing to recite his catechism, he’s tractable,” and they don’t feel annoyed, and they don’t spontaneously add a couple of years to what they’ve already decided on.
Standing beside me in his blue jail clothes, Roberto looked like all the other prisoners in their blue jail clothes, just as Lloyd and I in our pinstriped suits looked like all the other lawyers in their pinstriped suits, uniform interchangeable parts in the criminal justice system. Roberto’s one touch of individuality was his belt buckle, which read “DIOR.”
Roberto told the judge that he’d been doing some thinking, and he wouldn’t want someone to make his mother cry the way he’d made someone else’s mother cry, and he was sorry, and he wanted to improve himself and make something of his life. I thought he did very well, although he might have spoken with more feeling.
Judge Davis, with one emphatic blink, “hit him over the wall.” Her bright-red lipsticked mouth barely moved as she stated in an emotionless, seemingly prerecorded voice, that Roberto had committed this crime while an escapee from incarceration for an earlier crime, so that he had demonstrated that he was not a good candidate for rehabilitation. Therefore, she would not sentence him under the Youth Act. She sentenced him to a minimum of fifteen years, a maximum of life, in prison.
I had to hand it to her. She didn’t discount the value of the victim’s life just because he was a person of no account. Roberto got exactly what he’d have gotten for murdering, say, a white lawyer.
As was generally true at sentencings, there was no hint of moral condemnation, because judges know that society is unjust and the defendants started the race way behind the line; or because they are steeped in a psychologically deterministic outlook and feel that no man creates himself; or because they are racist and feel that the defendants are less than human and thus do not inhabit the same moral universe as they; or because they expect the world to be nuked out of existence, so what does it matter? Still, like engineers aboard the Titanic, the judges do their jobs, because they have to be done to keep the ship moving, for as long as it can move.
I followed Roberto back to the lockup. “Now that’s behind you,” I said after the door was closed. “You can get on with your life. You’re seventeen now. When you get out, you’ll be thirty-two. That happens to be exactly how old Mr. Lloyd and I are—not that old.” I shook his hand through the bars and told him I’d call his mother. That was the one thing he was concerned about—call his mother. He didn’t seem to “get” what had just happened to him, or care, if he did.
On the escalator down from the
courtroom, Lloyd commented on what a good speech Roberto had made to the judge. “He’s a much improved individual,” he said, “a very likable young man.”
I told Lloyd I was worried about what was going to happen to me in the next courtroom, as, concentrating on Roberto, I had not prepared for the guilty plea I had to do there. I said I was sure I was going to catch shit from Judge Morrison.
“You have to get used to that,” Lloyd said. “To a large extent, that’s what lawyers are for. That’s what you do for your clients.”
“Act as a buffer?”
“That’s right. Be a shit buffer.”
§5-06
I held my shoulders back and my head high as I walked across the street to begin Billy Pepperidge’s jury trial—my first. “Here’s Bernie Carbo,” I thought, “striding to the plate in the sixth game of the ’75 Series, two on, two out, down by three runs …” Bernie hit one out, as everybody knows. Just keep your eye on the ball, Jim.
The prosecutor looked at home in the courtroom. He was handsome in a smooth, regular way. All the men in the U.S. attorney’s office, like the television sportscasters whom they generally resembled, seemed to use electric shavers, leaving an even shadow instead of discernible stubble—a polished look which I have never been able to bring to my own face. This uniformity of visage, no doubt, resulted from the same hiring system that prevails in all organizations at all times, namely, the selection of hirees who remind the hirors of themselves; so that this electric look was no longer consciously sought, but simply borne forward by the prosecutors’ culture from some long-forgotten primordial Norelco.
In their uniforms of charcoal gray, the prosecutors appeared dignified and orderly. We defense attorneys wore easier clothes day-to-day, slacks and jackets, and those donned grudgingly, scarcely concealing the denim souls within. We were individuals, we were free. We worked for freedom, not justice, not freedom when merited, not freedom for the innocent—for freedom itself, for being loose, for staying outside.
When actually in trial, we’d suit up, of course, suit up for the jury, with a nod to the judge. Then it was haircut time and shoeshine time, because we were dignified and sincere and above all professional; the jurors dressed up when they came to court, so it was only fair to dress for them. Myself, it was the vibrant colors I put my stock in, and the only place for that was the necktie. I wore bright, happy ties—a flowered number on this particular day. The jurors would keep their eyes on a splash of pink and yellow in the beige courtroom. And what they’d see, I hoped, was that no one wearing such a necktie could possibly have a guilty client.
There was a rattling at the door behind the bench.
“All rise!” barked the clerk as he put down his newspaper. “The court is now in session, the Honorable May Wexler presiding. God save this honorable court!” Judge Wexler swept through her private doorway to the bench. “Please be seated,” she said with the quiet authority of a grammar school teacher. Everybody sat down.
The case was called: United States of America versus Billy Pepperidge. Some match-up! (But wait! Who’s his lawyer?)
The first order of business was jury selection. Billy and I stood respectfully as fifty prospective jurors filed into the courtroom, filling the spectator seats one row at a time, left to right, front to back, as they were instructed. They all had white plastic tags clipped to their chests with a red superior court seal in the center and the word JUROR in large black letters at the bottom—as close as many of them would ever come to having “credentials.”
“Good morning, ladies and gentlemen,” Judge Wexler said, folding her hands on her desk.
“Good morning, Your Honor,” fifty-seven* voices sing-songed in unison.
We’re all in our places, with bright shiny faces …
For the next two minutes, as the judge explained the procedure for voir dire*—examination of the prospective jurors—I frantically flipped through the list I had just been handed, which gave the name, date of birth, job title, and home address of all the jurors. I was trying to pick out those who were old (bad), young (good), rich (bad), poor (good), residents of white neighborhoods (bad), petty bureaucrats (bad), people who lived near the complainant (very bad). At the same time, I was exchanging a few friendly words with my client—I like this guy; glancing appreciatively at the jurors—we’re all in this together; and attempting to project a look of quiet confidence mixed with just a hint of boredom—this is no contest at all.
I was given a chance to pose questions to the jurors en masse, supposedly for the purpose of ferreting out prejudice. Since no one in his right mind is going to explicitly avow opinions that are only tacitly acceptable—“I think every black defendant is guilty”—I had been trained to ask questions that tell the jurors things: “Do any of you know Mr. Pepperidge’s mother Rose, who’s active in the First Baptist Church ladies’ auxiliary? His little sister Grace, the Cardozo High School cheerleader? You wouldn’t give extra weight to the testimony of a police officer just because he is a police officer, would you?”
There were a few useful questions people could be expected to answer truthfully: “Are any of you employed by the police, FBI, or other law enforcement agency?” Enemies you don’t need. “Are any of you lawyers or law students?” You don’t want anybody with legal knowledge on the jury, not because they’d see through your arguments—it’s just as likely that their training would help them understand your arguments—but because they might control the jury. There’s only one person in the room you want to control the jury.
Each side was given unlimited challenges to jurors “for cause”—that is, because they had disclosed information suggesting that they would be influenced by anything other than the evidence. I tried to get rid of a lady whose own car had recently been stolen. The judge denied my request. Each side also got ten “peremptory strikes”—bumping jurors because you don’t like their looks. Each judge had a different procedure for striking, all designed to keep the jurors from knowing who had objected to them. Judge Wexler used an arcane system, which I won’t even attempt to explain, some combination of musical chairs and “hangman” involving marching the jurors through the jury box while the lawyers passed little scraps of paper to the clerk. I did not then—nor in any subsequent trial—have as clear an idea of what was going on during jury selection as I might have wished. I cling to the belief that it didn’t much matter. Street dudes see through your client’s scam and convict. Right-wingers lean over backward to acquit. And vice versa.
“Raise your right hand,” the bailiff told the middle-aged white woman who owned the stolen car. “Do-you-swear-the-testimony-you-are-about-to-give-will-be-the-truth-the-whole-truth-and-nothing-but-the-truth-so-help-you-God,” he said—it sounded less like a question than a ritual incantation.
“I do.”*
The woman testified that she had left her car in a parking lot and had next seen it seven days later, all crunched up. I dripped sympathy for her—terrible thing somebody did.
Sergeant Fox and Sergeant Doan, the arresting officers, testified next. They had found personal papers bearing Billy Pepperidge’s name in the car. The D.A. introduced these in evidence.
Each cop said that he had clearly seen my client driving the car, even though they were chasing it down a midtown street at 60 m.p.h.
“You must have been looking back and forth to avoid pedestrians, weren’t you?” I asked Sergeant Fox, who had driven.
“No. I just keep my eyes on the suspect vehicle at all times,” he said. “We’re trained to do that. If he hits his brake, I hit my brake.”
“Suppose a lady with a baby steps into the street just as the stolen car goes by? You’re counting on the thief to lead you around her?”
Ahh. What a wave went through the jury. The working-class blacks who are the majority of D.C. jurors tend to be churchgoing people with a firm belief in law, order, and morality. Unbefuddled by “liberal guilt,” they are eager to rid the community of hoodlums, particularly the drug dealers
who poison their young people. However, as black citizens until recently ruled by whites via a white police force, they have a realistic and not unduly respectful attitude toward cops. And these two, white guys in polyester western wear, were real beauties.
Sergeant Fox maintained that he was absolutely positive Pepperidge was the driver.
“How long have you been on the police force?”
“Twelve years.”
“How many identifications have you made?”
“Thousands.”
“Have you ever made a mistaken identification?”
“Never.”
Never! Another wave crashed through the jury box.
Sergeant Doan said the same magic word: “Never.”
Our case was to begin with Billy Pepperidge’s younger brother, a clean-cut high school student, who would supply an alibi for Billy for the whole day the car was stolen, rebutting at least the grand larceny charge. They’d watched a lot of TV together, listened to a certain amount of radio, and then seen Up in Smoke, Invasion of the Body Snatchers, Deathforce, and Silver Streak at an all-night movie theater. “We were crackin’ jokes and havin’ fun. There was nothin’ else to do,” the brother had told me.
Ten minutes before he was to take the stand, the younger brother informed me that he was not going to tesify.
“Are you serious? Why not?”
“I’m afraid they’ll recognize me.”
“Who’ll recognize you? From where?”
There was a long silence. “The police. From the car. I was in the car with Billy.”
Oh, my God. It was bad enough that I’d just lost my alibi witness, but what about the defendant? Pepperidge was going to testify that he didn’t know the other two people in the car. “Think on your feet, not with them,” I always say, but this time I made an exception. I ran to the first respected attorney I could find. “How can I put on testimony that I really know isn’t true?” I asked him.
How Can You Defend Those People? : The Making of a Criminal Lawyer Page 24