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

by James S. Kunen

  As for Croft’s statement to his commanding officer, the judge decided it was admissible. It was not “tainted” by Croft’s thinking the cat was out of the bag, because it was made about ten hours after the statements to Luce, in a different place. As for the C.O.’s violation of regulations by bringing Croft in without his lawyer, the judge decided that the C.O. didn’t really know Croft had a lawyer; he had merely heard some talk to that effect.

  Even as we sat in the courtroom haggling over motions, the defense case was being constructed by our investigators. Under military procedure, in contrast to the procedure at superior court, we had been provided not only with the names and addresses of all government witnesses but also with copies of statements they had given to the authorities. Our investigators interviewed all those witnesses and all the people that those people mentioned. We learned what all the witnesses’ testimony would be. And it almost doesn’t matter what they’re going to testify to, as long as you know what it is. All news is good news: Sales had said Croft was going to kill him? Fine—that’s a good reason for Sales to have been carrying a gun. Everybody knows Croft beat his wife? Great—we’ll have Croft “voluntarily” confess to that on the stand—it will show how honest he is. Facts are like atoms. Many different things can be constructed from the same facts.

  As a matter of fact, some of what the witnesses had to say was splendid for our side. Investigator Bert Meyers brought back a gem of a signed statement from Staff Sergeant J. B. Jones, one of Croft’s co-workers who was also a friend of Sales’s. Jones recalled that, sometime back in September or October, Sales asked Jones to point out Croft to him.

  “I asked him why he wanted to see Croft,” Jones said. “He said he just wanted to know who he was. I asked him, ‘What you doing, messing around with his wife or something?’ He just started smiling, chuckling. He said, ‘You know what happens if you don’t take care of your homework.’”

  Nice guy, right? Sleazo. It got even better: “A couple of times after this incident, I mentioned this woman to Sales, and what her husband might do, and he said, ‘I ain’t worried about nothing. I keep my piece [gun] on me.’ Irwin Sales always bragged about his piece. He said he owned a .38 and a .357 Magnum.”

  Jones’s testimony would support the defense theory that Sales died by his own gun. Equally important, the picture he’d paint of Sales would help make the jury want to believe it.

  Meanwhile, investigator Amanda Perwin, a student intern from Wellesley College, was getting a million-dollar signed statement from Sales’s supervisor, Technical Sergeant Ken Yates. Perwin felt slightly queasy about the enterprise in which she was engaged, but she believed in hard work—that was the main thing—and she did her job well.

  Yates was loath to speak ill of Sales in particular, or the dead in general, and had a profound aversion to involvement in legal proceedings or anything else that he could more readily imagine doing him harm than good. Yet Amanda got him to sign this:

  Irwin Sales was a lady’s man. To be frank with you, he used women. He saw them as just a piece of ass, and he’d do anything to get inside their pants. He had a lot of girlfriends, and he told everybody about them, and he’d tell you all the details. He’d tell me about it, he’d tell you about it, he’d tell the guy in the hallway about it. I mean, the bad thing about it is that if he went to bed with you tonight, tomorrow morning, everybody would know about it.

  Last summer was the first time he told me about Arlene Croft. Sales was concerned. He said, “I have a problem, and I need your advice.” He said that Arlene had told her husband she was seeing this guy Irwin Sales. Not only did she tell his name, but where he worked, and where he lived, and everything. At that time, I told him I’m a little concerned about a person who tells a spouse that they’re going out with someone, and gives the person’s name and address. I view that as possibly destructive behavior. I told him to stop seeing her.

  The next morning he came in and told me that he and Arlene had talked, and they agreed they weren’t going to see each other again. I asked him why, if he had so many girlfriends, why did he care so much about this lady. I mean she’s married and has five [sic] kids. What was so special about her? He said he hated to give her up because she was just the “best lay” he had ever had, just the “best piece of ass.”

  Yates also remembered that Sales had once told him that he had an unregistered pistol.

  And an airman on duty at the headquarters building on the day of the shooting told Perwin that Sales reported to work that day carrying a gym bag with something in it.

  §6-08

  After three days of motions, we got down to the business of jury selection, right after our renewed motion for a continuance—we wanted more time for investigation—was denied. We exercised our right to have at least one third of the jurors be enlisted men—the defendant’s peers. We thought enlisted men, the military equivalent of blue-collar workers, might be more sympathetic to shooting your wife’s lover as a mode of resolving marital difficulties than would the “white-collar” officers.

  Each side was allowed one peremptory challenge. We bumped the jury pool’s highest-ranking officer, a colonel. “Get rid of the weight,” my co-counsel Captain Arnold said. Sergeants have a hard time holding their own against colonels in deliberations.

  Any number of jurors could be challenged by either side for cause. The judge let us get rid of three who said that they did not believe in the right to use deadly force in self-defense.

  I challenged a recently divorced enlisted man, on the theory that the prosecution, thinking they had missed something, would object to his removal, instead of insisting on it themselves. When they offered no objection, I said, weakly, that I had changed my mind.

  “Oh, come on!” the judge barked. “You’re a lawyer, aren’t you? This isn’t a game.” The most promising juror was whisked away. Croft looked at me with a combination of disgust and amazement. He sighed audibly. I shook it off—chalk it up to experience. Onward.

  A jury of eight was sworn—four enlisted men, three male officers, one woman officer. Our military justice system, based on the code of Gustavus Adolphus, a seventeenth-century Swedish king, requires only two thirds of the jury to concur in a conviction. The prosecutor would need six votes to win; we would need three.*

  Captain Biscket delivered the prosecution’s opening statement, the purpose of which is to give the broad outlines of the government case, alleging facts sufficient to prove the elements of the offenses charged. I was busy writing down everything she said, with a view to moving for a mistrial if she later failed to present evidence that she said she was going to, when I noticed that I had written, “Sales’s friend Dave Johnson will testify that Sales told him, ‘If anything ever happens to me, you’ll know it was Peter Croft that did it.’”

  That’s hearsay! I realized—an out-of-court statement offered as the equivalent of testimony: “Sales told me …” Oh, well. There’s not much point in objecting to something after it’s already been said. All the judge can do is tell the jury to disregard it, which has the effect of searing it into their memories. Then she started saying it again. “I object!” I heard myself say, finding myself on my feet. “That’s hearsay,” the judge said. “The jury will disregard it.”

  (My P.D.S. supervisor said later I could have moved for a mistrial and probably gotten it, so serious and prejudicial was the prosecutor’s breach.)

  As she outlined the government’s case—Croft had the motive, the means, and the opportunity; fled; deep-sixed the evidence; and fabricated an alibi—Biscket spoke in an unvarying tone of what was probably supposed to be righteous indignation, but sounded more like personal annoyance. It was as though the thought of the shooting gave her a headache, and she was going to give everyone else a headache, too, until she got a conviction, until she got some relief.

  My turn. As a civilian, I faced the jurors across a cultural chasm, as well as a physical one: they were seated in one long row along a dais, their faces two fe
et above my head. I was foreign to them, but therein lay an advantage: I aroused their curiosity. I set out to exploit that curiosity in the most ancient and proven of ways—by telling them a story. Everyone prefers a story to a statement. Everyone prefers a story to anything.

  I eased into it with a stock defense attention-grabber:

  “In the opening statement, I have the opportunity to outline for you what we expect the evidence will show. As you listen to the evidence, I’d like you to remember this [I held up my hand, palm toward the jury]: Have you seen my hand? [Pause.] No, you haven’t seen my hand. [I turned the back of my hand toward them.] Now you’ve seen my hand. There are two sides to this story. As you listen to the government’s case, remember to keep an open mind until you’ve heard Peter Croft’s case.”

  Good. The jurors hadn’t heard that one before. You could see just the hint of a smile on their faces from the satisfaction of “getting it.” Hand. Two sides. Clever. We’re all clever here.

  “As you listen to the evidence, you will hear the story of a nightmare, Peter Croft’s nightmare. As nightmares often do, it started out as a pleasant dream.”

  The pleasant dream began with Croft and his wife-to-be meeting, as teen-agers, at a country picnic. It floated along through their wedding, the birth of their two little boys, Croft’s enlistment in the service of his country.

  “When the Crofts moved to Washington, their future looked bright. They were happy. Then things started to go bad; and they went bad for a reason; and the reason had a name; and the name was Irwin Sales.” The prosecution had neglected to acquaint the jurors with Irwin Sales, referring to him simply as the victim, never fleshing him out. So I took care of it. Predicting exactly what various witnesses would say about him, I introduced Sales the womanizer, Sales the homewrecker, Sales the liar, Sales the gun-toting macho man. I did strike one sympathetic note: “Sales is afraid. He’s afraid because of what he is doing. He’s looking over his shoulder all the time. He’s so afraid that he always carries one of his handguns.”

  Although I didn’t explicitly say so, it was perfectly clear that Sales, by having an affair with a married woman, had violated the moral order of the universe, thus assuring his own destruction—only the details of time, place, and manner remaining for God to work out. By this account, precisely what transpired on November 14 was the least important aspect of the story—it was just unfortunate for Croft that he was selected as the divine instrumentality. Nonetheless, just to tie up loose ends, I concluded the story with the struggle for the gun, the accidental shot into the wall, Croft wresting the gun away. “Peter falls back and, fearing for his life, starts firing. The first shot knocks Sales’s tooth out and passes into his brain—Sales is falling dead as Peter’s last two shots hit him.

  “Peter flees to his car and starts driving home. He realizes he still has the weapon. He throws it in the Potomac. He feels he’s in big trouble—he’s a murder suspect. He visits friends, tries to create an alibi. But the police suspect him, as well they should. He is the man who fired the shots. And the truth will out. And the truth will set him free. Because Peter Croft fired the shots with Sales’s weapon, in self-defense.”

  §6-09

  The prosecution called its first witness, Sarah Joswick. The prim military wife testified that as she waited outside the headquarters building for her husband, she’d heard shots and seen a man run away.

  “By saying ‘bang’ for each shot, could you demonstrate for the court exactly the pattern of shots you heard?” Captain Arnold asked on cross-examination.

  She lowered her eyelids for a moment as she called up that instant from three months ago.

  “BANG—BANGBANG—BANGBANG,” she said.

  What we were interested in was the pause after the first shot—the gun was changing hands.

  “One other thing,” Captain Arnold said. “I’d like to show you what’s been marked defense exhibit A, and ask you if you recognize it.” He showed her a beautiful pencil sketch of the headquarters building, which Bert Meyers had drawn the day before when it occurred to me that our case could use some art—we hadn’t found time to take photos.

  “Yes. That’s the front of building twenty.”

  “There’s a sign on the door, isn’t there?”

  “Yes.”

  “That same sign was there on November fourteenth, wasn’t it?”

  “Yes.”

  “What does it say?”

  “It says, ‘Warning: This Building Is Under Continuous Surveillance by Closed-Circuit Cameras.’”

  “Thank you.”

  We would argue that no one would choose to commit a murder on videotape, so it must have been self-defense. As it turned out, the video system was out of order on November 14. Croft didn’t know that. Sales might have.

  The next two government witnesses, like Mrs. Joswick, testified that they had heard shots and seen someone run away. The government was establishing a boring but necessary element of its case, the corpus delicti—“the body of the crime”—the objective proof that a crime was committed. You can’t prove the defendant committed the crime unless you prove a crime was committed. Somebody shot somebody.

  One witness remembered the shots as we liked them: “BANG—BANGBANG—BANGBANG.” The other thought he heard “BANGBANGBANG—BANGBANG,” but he was standing right at the door of the building and may have been confused by echoes.

  Officer Straus, a Metropolitan Police Department crime scene search officer, identified the photos he had taken of the scene. He was then shown a floor plan of the building, which the prosecution had prepared. Asked by Captain Hooton the routine question for getting a picture accepted into evidence, “Is it a fair and accurate representation of the entrance area as it appeared that day?,” he answered, to our delight, “No.” It seemed that what was depicted as a wall was actually an opening to a hallway, and that a piece of furniture was misplaced.

  Even though these details were of no significance, on cross-examination we had Officer Straus stand up and meticulously draw in and initial the corrections. Every time the jurors looked at that chart it would deliver a defense message: the prosecution is slipshod.

  We also had him point to, identify, circle, and initial a little item visible in the background of one of the photos, on a chair behind Sales’s desk: an open gym bag. We would argue that Sales carried a gun to work in it. And, since Officer Straus had participated in a search of the decedent Sales’s house, he was also able to tell us what he had found lying on the living-room table there: a .38, in a holster; a .357 Magnum, in a holster; and an empty holster for a .38.

  “That’s how many handguns?”

  “Two.”

  “And how many holsters?”

  “Three.”

  “Two handguns, but three holsters?”

  “Yes.”

  “And the empty holster was for a thirty-eight?”

  “Yes.”

  When the trial resumed the next morning, the prosecution called Metropolitan Police Department crime scene search officer Stahler, who described the recovery of five slugs: two in the body, one in the wall, one on the floor, and one from the ambulance’s stretcher. He admitted that he had no way of knowing whether these were all the bullets that had been fired.

  Special Agent Boston of the Air Force’s Office of Special Investigations added to the government’s floor plan a curved line denoting blood droplets which made a seven-foot path from a point in front of Sales’s desk to a large puddle of blood—the path Sales staggered before hitting the floor, presumably. He also marked the spot where he found “an apparent tooth” on the floor in front of the desk.

  On cross-examination, Boston acknowledged that he had written in his notebook (which we had seen, through discovery) that there “appeared to have been a struggle,” a conclusion he based on the presence of the bullet hole high up the wall behind the desk. Boston had made no mention of a struggle in his direct examination by the prosecution.

  Our objection to the i
ntroduction of Sales’s jacket, complete with bullet holes and blood, was sustained. It was kept out of evidence because it was likely to “inflame the passions” of the jury and it didn’t prove anything new. The guy was shot.

  Detective Haviland of the security police was called to describe the apprehension of Croft and the recovery of the shotgun from his trunk. Captain Arnold got him to admit, in cross-examination, that Croft had been cooperative—he didn’t struggle or attempt to flee, and he volunteered the information that the shotgun was in the trunk and gave Haviland permission to open it, pointing out the proper key.

  At the pretrial motion to suppress the shotgun, we had argued that Croft was coerced into helping Haviland find the gun, because we were trying to show that the seizure was illegal. Now it suited our interests to argue that Croft had voluntarily turned over the gun. Conversely, at the suppression hearing the prosecution wanted to prove that Croft had consented to the search; now it was in their interest to downplay his helpfulness as they tried to paint a picture of a guilty man. This sort of nimble dance is perfectly proper and takes place all the time, but it does have an effect on how lawyers think of “the truth”: the truth is what the evidence proves, and the evidence proves what you want it to.