The fleeing man, they pretty much agreed, was white, five foot eight to five foot ten, medium build, about thirty years old, with medium-length brown hair, wearing a blue three-quarter-length jacket and khaki pants. He seemed to be tucking something into his right jacket pocket as he fled. Joswick thought she saw the outline of the barrel of a gun in the pocket.
Rendle and Joswick rushed into the building. They saw a young white man lying on his back on the floor in front of a desk in the employment office, a dozen feet from the building’s entrance. Blood was gushing out of his nose and mouth, making a loud, gurgling sound. It was 2:55 P.M.
When the D.C. police arrived ten minutes later, the victim had already been rushed to the emergency room of a nearby hospital. Detective Miller from the Homicide Bureau, looking like a Princeton professor in his leather-elbowed tweed jacket, spoke to people at the scene, jotting down a few notes in his spiral pocket notebook. He spoke with Dave Johnson, a big, bearded man who resembled the Popeye cartoons’ brutish Bluto. Johnson, a former airman, described himself as a close friend of the victim, an Air Force enlisted man named Irwin Sales. As he spoke to Miller, he was still clutching a Gino’s bag containing two hamburgers, one for him, one for Sales. The hamburgers were getting cold.
Johnson told Detective Miller that Sales had told him three months earlier, “If anything happens to me, you’ll know who did it: Peter Croft.” Sales, an Air Force staff sergeant, had been having an affair with his fellow staff sergeant Croft’s wife, and Croft knew it; and Croft had been following Sales around, Johnson said.
At 3:45 P.M., Sales was pronounced dead.
At 3:50 P.M, a D.C. Metropolitan Police Department crime scene search team arrived, roped off the employment office, and “processed the scene.” One officer diagrammed the room on grid paper while another took photographs. There was a lake of blood three feet long. The ambulance men had walked through it, leaving a trail of crimson-brown ripple-soled footprints. There was a bullet hole in the wall behind Sales’s desk, about one foot below the ceiling. A spent slug was found on the floor at the base of the wall on the opposite side of the room. A human canine tooth lay on the floor in front of the desk. The exact location of these items was marked by the search officer on his grid-paper map. Then he picked them up and put each in a four- by four-inch plastic bag, which he numbered, sealed, dated, and initialed.
The police called the Bureau of Motor Vehicles for a description of Croft’s car and began searching for a green 1978 Datsun B-210. At 7:30 P.M. it was spotted, parked in front of the N.C.O. Club, not far from the scene of the shooting. A stakeout was established. At 8:00 P.M. a brown-haired man of medium height and build, dressed in a stylish gray three-piece suit, came out of the club and approached the car. Two Air Force security police plainclothesmen jumped out of the bushes, one leveling a sawed-off shotgun at him, the other holding a .38. The one with the .38 told him to lie face down on the street with his legs, arms, and fingers spread wide. He removed the wallet from the prostrate man’s back pocket and looked at his driver’s license. “Sergeant Croft, you are under arrest,” he said.
He began searching Croft for weapons or evidence. “I haven’t got anything on me, but there’s a weapon in my trunk,” Croft said. He handed his keys to the officer, who found a shotgun in the trunk. The officer cuffed Croft’s hands behind his back and helped him to his feet. He was put in a car and taken to the local D.C. police precinct, where Detective Miller was waiting. Miller read him his Miranda rights from a Metropolitan Police Department rights card (form P.D. 47).
He then uncuffed Croft and had him answer in writing the Four Questions printed on the back of the card, which he did as follows:
1. Have you read or had read to you the warning as to your rights? Yes.
2. Do you understand these rights? Yes.
3. Do you wish to answer any questions? No.
4. Are you willing to answer questions without an attorney present? No.
Croft signed the card. Miller filled in the time, “2035 hours,” and the date, and signed it too. Miller did not question Croft. He called for a car to take Croft downtown to the homicide office at Police Headquarters.
Meanwhile, a Detective Simon was at the N.C.O. club questioning the hostess, Kathy Foster. Foster, a tough-but-fragile-looking young woman with high cheekbones and a low neckline, said that Croft, a friend of hers, had picked her up at her apartment that afternoon at 2:30, driven her to work, stayed with her until 3:30 P.M., and dropped by again at 7:00 P.M.
“You’re a material witness,” Simon told Foster. “You’re going to have to come down to headquarters and answer some questions.”
“Do I have to?” Foster asked.
“Yes, you do,” Simon responded, lying. He knew that you don’t have to answer a police officer’s questions, and that an officer can’t hold you at the police station unless he has a warrant, or probable cause to believe you’ve committed a crime.
Croft arrived at 300 Indiana Avenue, N.W., Police Headquarters, at 9:00 P.M. Detective Miller handed him over to Homicide Detective Luce. Miller told Luce that Croft had asserted his right to remain silent. Luce, a stocky, greasy-haired man, took Croft to one of the six- by ten-foot windowless interview rooms in the rear of the homicide office on the third floor of the Municipal Building and handcuffed him to a chain locked to a desk. Croft asked Luce to get his lawyer’s business card, which was in his wallet. Luce did not comply with the request. He walked out of the room, leaving Croft alone. Downstairs Kathy Foster was being questioned by detectives. Frightened and confused, she quickly broke down and admitted that Croft had not been with her that afternoon. The first time she’d seen him was at 7:00 P.M. He had looked upset. When she asked him why, he said he had “a lot on his mind” and asked her to say he had been with her from 2:30 to 3:30 P.M. if anyone inquired.
Croft sat alone for several hours, except for a few minutes while an officer took biographical information on him—isolating the suspect is a standard technique of interrogation. At 1:15 A.M., Detective Luce, accompanied by a Detective Gennetti, walked into the interview room and asked Croft, “Do you understand your rights?”
“Yes,” Croft said.
“Do you know Irwin Sales?”
“No.”
“Where were you late this afternoon?”
“I was with my girlfriend.”
“We know you’re lying,” Luce said. “We have your girlfriend outside.” Luce told Croft he’d be better off to say what really happened. “It can’t hurt you. It can only help you, if it was self-defense.” Croft said he wanted to think about it.
The detectives walked out of the interrogation room. They returned at 2:35 A.M.
“Did you kill him?” Luce asked.
“Yes, I did,” Croft replied.
Luce, a veteran detective, had just made a kindergarten-level mistake. Croft had filled out a rights card with Detective Miller, asserting his right not to be questioned; and he had done nothing to retract that assertion when he acknowledged to Luce that he “understood” his rights.
After Croft answered, “Yes, I did [kill him],” Luce reread Croft his rights and had him make out a new rights card.
Croft filled it in “Yes. Yes. Yes. Yes,” and signed it at 2:42 A.M. Luce spent the next half hour questioning Croft about the shooting, getting as much out of him as he could before Croft might change his mind. At 3:10 A.M., after Croft had been over everything once, Luce told him to repeat it all, one sentence at a time, while he typed it out.*
The written statement began “Q: Mr. Croft, did you shoot Irwin Sales on November 14? A: Yes.”
Asked what led up to the shooting, Croft explained that, back in August, his wife told him she was having an affair with Sales. Croft decided to “question” Sales, so, having located his workplace and his car, he followed him one August evening. Sales suddenly pulled over, jumped out of his car, ran back to Croft’s car, stuck “a large caliber pistol” in his face, said “If you ever come around
me again, I’ll blow your fucking brains out,” and told Croft to drive off, which he did.
On the afternoon of November 14, Croft told Luce, he went over to the office where Sales was a clerk, intending to talk to him. “I wanted to know why he was messing with a married lady, and why he would want to destroy my family.
“I walked into the building. Sales was sitting at his desk. When he saw me, he reached down, walked out from behind the desk, pointed a gun at me, and said, ‘I told you if you brought your ass around me again I’d blow your head off.’ I grabbed for the gun, and the gun discharged once into the wall. We both froze for a second, in shock, and I was able to take the gun from him. I started to back out the door. He kept coming toward me. I was in fear of my life, so I shot him.”
At this point, Croft interrupted himself and asked Luce if he could leave the next thing out of the statement, because “it wouldn’t sound good.” Luce agreed and stopped typing. Croft then confided, “I put two shots in him after he was on the floor.” Luce left that out of the signed statement but, unbeknownst to Croft, noted it down later in his “running résumé” of the investigation.
(Luce’s testimony about Croft’s verbal statement could be as damaging as a signed statement. There’s a widespread, erroneous belief among defendants that only what is written down and signed can be used against them, as though the written word had some substance that invisible, spoken words lack. The law doesn’t see it that way. Anything said by the defendant to anybody is admissible against him in court, unless it was a response to an in-custody interrogation that violated his Miranda rights.)
The signed statement continued, “Then I backed out the door, and ran to my car, and drove toward home. Then I realized I still had his gun in my car, so I threw it out the passenger window over a bridge into the river. Then I went home.”
“What did you do at home?”
“I took a shower and changed clothes.”
Croft said that he fired three or four times, and that he didn’t really look at the gun, but he thought it was a .38. Later that evening, he said, he phoned his wife, who had moved with their kids to Illinois, but he didn’t tell her about the shooting. She told him about it, having heard from friends. (Mrs. Croft told the police that Peter “sounded surprised” when she told him that Sales had been shot.)
Croft said he had never owned a handgun. The statement concluded in the ritual fashion: “Q: Mr. Croft, can you read and write the English language?
“A: Yes.”
Croft signed it at 4:54 A.M.
§6-02
It was my day to pick up cases. I looked over the mimeographed assignment list: “Name: Peter Croft. Charge: Homicide. Attorney: Kunen.” All right! A heavy case.
(Croft, an airman charged with killing another airman on an Air Force base, should have been processed through the military justice system, but, in the confusion following the shooting, he was turned over to the D.C. police, who took him to D.C. superior court, where he claimed indigency and his case was assigned to the Public Defender Service.)
I went down to the cell block and called out my client’s name. Over to the window came a man, about thirty years old, in a nicely tailored three-piece gray suit—the first three-piece suit I had ever seen on that side of the lockup. I introduced myself, handing him one of my business cards, which, atypically, I had remembered to take with me that morning. “I’m really glad to see you, man,” he said, showing more appreciation than was usually evident amongst my clientele.
“I have to write down your description today,” I said: “Medium-length brown hair, light complexion, tortoise-shell aviator glasses, gray tweed three-piece suit, blue tie with white checks, cream shirt—stand up, please—five foot nine, one hundred fifty pounds, brown shoes, digital watch with steel band.”
(The description has to be just right, not only because it may be important identification evidence, but to satisfy the client. “Maroon sweater,” I once said to a juvenile purse-snatcher. “Burgundy,” he said.)
Croft’s clothes looked better than he did. He had dark circles under his eyes, sweat glistened on his brow, and he needed a shave.
“Ever been arrested before?”
“Never.”
“Well, then, we may be able to get you out today. Now, how come you’re in there? Did the police tell you why they arrested you?”
“The cop said that witnesses saw me leave the place where it happened,”* Croft said wearily. “They described me and my car to the cops. I’ve had trouble with this man before. He pulled a gun on me in August. The cops have a sworn statement from his best friend that he—”
“Who?”
“—the guy who got shot told his best friend that if anything ever happened to him, it would be me that did it. Man, can you get me something to eat? I haven’t had anything to eat since yesterday afternoon.”
I never did like clients’ calling me “man.” Very few did. “I’m sorry, I can’t help you there. The marshals will bring you a sandwich around noon. Did you know the victim?”
“His name’s Irwin Sales,” Croft sighed, his eyes focused on a far-off sandwich.
“Where’d the incident happen?”
“The headquarters building at Bolling, building twenty. It was on the first floor, near the front door. Man, I’m really hungry.”
A whiner. “I’m sorry about that, but right now the best thing I can do for you is get down this information. Did you make any statements to the police? I mean, tell me anything at all that you said to them. Any words that came out of your mouth.”
“I told them that he pulled a gun on me again, we struggled, and I shot him.” Croft rubbed his nose.
“When did you say that?”
He turned his gaze upward, as people do when they try to remember times. “The shooting was about three P.M. yesterday. I was arrested at about eight o’clock last night. I gave the statement at about four A.M. I was questioned until six o’clock this morning. And they never gave me anything to eat.”
Croft’s innards were being gnawed at by the injustice of his hunger as much as by the hunger itself. “They searched you, right? Did they take anything from you?”
“My wallet. And they swabbed my hands with some kind of chemical, to see if there was gunpowder on them.”
“Did they find a gun?”
“No. Except a shotgun in my trunk.”
“What was the situation when you gave that statement?”
“The detectives at the Homicide Bureau took the statement. I hadn’t had anything to eat. I was handcuffed to a desk—too tight. My wrist still hurts,” Croft said defensively, sensing my displeasure at his having talked. “I told Detective Luce that I wanted to talk to my lawyer. I had a lawyer for a car accident I was in. He wouldn’t let me. He told me that if I called him, he’d just tell me to keep my mouth shut, and then the judge would think I had something to hide. If I talked, because it was my first offense, and it was self-defense, he said, the case could be thrown out.”
I found Croft’s account of what Detective Luce did amazing, if it was true, not because he had violated Croft’s right to counsel, but because he was so blatant about it. It was as though there were no tomorrow, no court review. Detective Luce wouldn’t play by the rules, but acted impulsively, and destructively to the interests of the state, which he apparently did not see as his own interests. He just wanted to exert his power right at that moment, with no view to consequences. No system can function with men like that. Luce had jeopardized the government’s whole case.
What wasn’t so surprising was that Croft had gone along with the cop’s “advice.” What Luce said did seem to make sense, after all, and the circumstances had a certain persuasive force, too: you are in a bad situation. You are handcuffed to a desk. It’s the middle of the night. You are somewhere deep in the labyrinth of police headquarters. The only people in the room with you are police. The only people in the next room are police. The only people in the room after that are police. The only
people in the world who even know where you are, are police. This is a bad situation. It is a static situation. God only knows—besides the police—how long you’re going to be in this situation. What will end it? You have tried not talking, for hours, and it hasn’t done you any good. There is only one other thing you can try—talking. So you try it.
Croft held out a long time. The cops played him well, though. They never had an unkind word for him—just the opposite.
“The detective said he talked to Master Sergeant Merritt, Sales’s boss, and he said Sales was a cocky smartass and no one liked him,” Croft said. “The cops showed me Merritt’s statement and the statement of Sales’s friend, saying that I would be the one that did it.”
I told Croft that the statement he had given might be thrown out; the jury might never hear it. He should start all over again, and say nothing to anybody. “No matter what anybody promises you or threatens you with, just say, ‘I’m sorry, my lawyer told me not to talk about it.’ Okay?” He said he understood.
In due time, our case was called. Croft and I stood before the judge. No sooner did I state my name for the record than the assistant U.S. attorney announced, “The government has no-papered [declined to prosecute] this case because jurisdiction is being transferred to the military.”
A picture flashed into my mind from four years back: there was Steve Pokart, my mentor at New York Legal Aid, making a break for the courtroom door with his client the minute a juvenile court judge said she had no jurisdiction over him because of his age.
I immediately sprang, not into action, exactly, but into words. “Well, Your Honor, if the government has dropped the case, then there is nothing holding Mr. Croft, and I am advising him to leave.”
How Can You Defend Those People? : The Making of a Criminal Lawyer Page 27