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

by James S. Kunen

  The test for the second element—that the defendant believed the amount of force he used was necessary—is subjective: what matters is what he thought was necessary to protect himself, whether “reasonable” or not; so the defendant’s particular intellectual and emotional makeup is relevant. In other words, once it is objectively established that the defendant reasonably thought he was in danger of death or grievous bodily harm, whether or not he actually was in such danger—some toy guns would fool anyone—the only question remaining is whether he really thought he had to do what he did. “Detached reflection cannot be demanded in the presence of an uplifted knife,” Justice Holmes observed.1

  The judge continued the instructions by drawing a distinction between direct and circumstantial evidence, and then explaining that there was no practical difference between them: “Direct evidence is the testimony of a person who asserts actual knowledge of a fact, such as an eyewitness; circumstantial evidence is proof of a chain of facts and circumstances indicating the guilt or innocence of a defendant. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. Nor is a greater degree of certainty required of circumstantial evidence than of direct evidence. In reaching a verdict in this case, you should weigh all of the evidence presented, whether direct or circumstantial.”

  The judge continued in this vein for an hour. Then the jury retired to deliberate.

  Captain Arnold and I went to his office and drank coffee while Croft chatted with his guards in the anteroom. I was too exhausted to feel much of anything beyond relief that the trial was over, although I certainly hoped that we’d win, so that all of our effort would not have been for nothing.

  Before we had a chance to reflect, we were called back to the courtroom. Forty-five minutes had passed. After evaluating the testimony of thirty-three witnesses, the jurors were back with their verdict. The “president of the court” (foreman), a John Wayne look-alike lieutenant colonel, stood and, grim-faced, with a faltering voice, read the following: “The court, two thirds of all members present concurring in each finding of guilty, finds the defendant: of the charge, not guilty; of the specification, not guilty; of the additional charge, guilty; of the additional specification, guilty.” Not guilty of murder, guilty of carrying an unregistered firearm. The jury, which had been unanimous in both findings, pronounced sentence: ten days’ incarceration, with credit for the ninety days he had served in pretrial detention. Croft was a free man.

  Croft smiled and shook my hand. “I never doubted for a second that we were going to win,” he said. “Can I get my shotgun back?”

  Croft’s guards threw their arms around him.

  The judge came up to me in the hallway. “If you’d like, I’ll give you that continuance now,” he said, smiling. Judges like it when the best lawyering wins—they’re lawyers, too.

  §6-15

  “‘Get away with murder,’” I thought, upon hearing the verdict. “I have gotten away with murder.” I was awed by the enormity of it. The Sixth Commandment.* It made me feel bad—my stomach, particularly—but not as bad as losing would have. To those turkeys? Yet another client of mine locked up? I preferred to grapple with the moral problem of winning. That’s the sort of problem you want to have.

  Anyway, I really didn’t know whether Croft had committed murder. There was certainly some evidence to suggest that he had, but, on the other hand, how account for the wild shot high in the wall? Why would he pick the middle of the afternoon in a public lobby in front of a video camera? In any case, it didn’t matter what I thought.

  Asked by Boswell what he thought of “supporting a cause which you know to be bad,” Dr. Johnson replied, “Sir, you do not know it to be good or bad till the Judge determines it…. An argument which does not convince yourself, may convince the Judge to whom you urge it: and if it does convince him, why, then, Sir, you are wrong, and he is right.” Dr. Johnson’s observation is reprinted in the A.B.A. Code of Professional Responsibility.1

  Croft was not guilty. The jury said so.

  Regardless of what Croft had or had not done, there remained the problem of what I had done in preparing him to testify. A popular handbook for defense attorneys reflects the mainstream thinking of the defense bar when it suggests, “Although he should not tell the witness specifically what to say, it is certainly within the province of counsel to discuss the witness’s answers, highlighting possible problems with proposed answers and suggesting ways in which they could be avoided. The witness should also be instructed as to any potential pitfalls in his testimony and how best to deal with them.”2

  What I did would have fit that description if I hadn’t been so direct. I don’t think Chief Justice Warren Burger himself would find fault with my saying to Croft, “There are inconsistencies in your account, and here they are … There are gaps in your account, and here they are … There are parts of your account that I disbelieve, and that I predict the jury will disbelieve, and here they are … Now I’d suggest that you try to remember what really happened.” Warren Burger might quibble, but few other lawyers would, if I went a little further and tried to jog my client’s memory: “Maybe you spent some time alone, and went for a walk or something?” But I definitely went too far when I said, “Isn’t this what happened? Didn’t you go for a walk?” I guess under the pressure of the moment, I just couldn’t see the difference.

  I do think it’s better to be overzealous than underzealous. Over-zealousness can be corrected by the prosecution. (They might at least have asked, “Did you go over your testimony with your attorney?,” an innocent question with an innocent answer—“Yes”—but one that nonetheless communicates a certain suspicion to the jury.) Underzealousness cannot be corrected by anyone.

  An hour after the verdict, the defense team—not including Croft, who’d gone back to be processed out of the stockade—sat around the kitchen table in Captain Arnold’s Florida Avenue row house, drinking Scotch and champagne and smoking. We relived the trial amid gales of laughter, the responsibility off our shoulders and our hearts exultant—we were the victors.

  “I couldn’t believe it when you said, ‘Maybe the Cannery Row Club doesn’t exist’!” Arnold laughed.

  “I didn’t realize I said that.”

  “It didn’t matter what you said. You were rolling, and the jury was rolling with you.”

  As my mood got more and more elevated, it dawned on me that my patriotic rap to the jury about the United States’ being different from most of the nations of the world, because we put the burden of proof on the government, was true. I had thought I was being cynical and manipulative when I’d said it, but it really was true. And if the government doesn’t prove its case, the accused should go free.

  I felt proud to be an American.

  It was around this stage of my career that the image of someone in my own family being the victim of a violent crime started coming to my mind more and more frequently. I imagined that the criminal would be put on trial, and that I would walk up to him in open court and shoot him dead.

  §6-16

  Howard Robbins had been ordered by the court, upon the government’s motion, to be held under mental observation in St. Elizabeths. He’d been there six months. After the first month, the St. E’s doctors reported that “although he has a factual understanding of the proceedings pending against him, he is considered incompetent for trial by virtue of not having a rational understanding of the proceedings pending against him and not being able to consult with counsel with a reasonable degree of rational understanding.” He was diagnosed as “schizophrenia, paranoid type,” and, the doctors concluded, “The alleged offenses, if committed by him, were the product of his mental disease; as a result of his mental disease, he lacked substantial capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law.” He was insane at the time of the offense, in their opinion.

  I had requested a hearing at which Howard could contest the finding o
f incompetency, and Judge Milmoe finally did appoint an amicus—an independent counsel—to argue that Howard was competent.

  Howard Robbins’s competency hearing was postponed many times, for many reasons, none of them having to do with Howard Robbins.

  Howard, meanwhile, continued to insist that he was competent, sane, and innocent. And St. Elizabeths periodically reported that he remained incompetent.

  “He thinks we don’t know what we’re talking about. He thinks we’re relying on untrue information from his mother and you,” one of the St. E’s psychiatrists told me. “He thinks we’re colluding to harm him. He hates the idea of an insanity defense, because he fears he’s lost his mind, which is a nightmarish feeling.” Howard’s insistence that he was sane was instrumental in convincing the psychiatrists that he was not. “Where there’s a danger of long incarceration, only a very sick person refuses to raise an insanity defense,” one doctor said.

  Howard telephoned me daily, and I visited him every so often. He always had new witnesses for me to interview, who, he claimed, would tell me he was never jealous of Sheila, and would never have shot her. “I’ve seen her with hundreds of men. I’ve seen her with millions of men. It’s cool.” But the witnesses never knew anything about it. They hardly knew Howard. His mother called them his “dream friends.”

  Howard continued to profess confidence that he would win at trial, because Sheila would “hang herself” on the witness stand. “It would be easier for her to reach up and grab the sun than to come in and tell the truth,” he said.

  Finally the hospital shrinks, after plying him with Thorazine for six months, concluded that he had become competent. Our own doctor told me that Howard was getting competent, “but he may be pretending that he’s incompetent, by continuing to insist that he’s competent, just as he did when he was incompetent.” I could see which way the wind was blowing. There was no sense destroying my relationship with Howard by arguing for incompetency when all the shrinks were lining up against me. I did not contest the findings of the St. Elizabeths doctors. The court found Howard Robbins competent and set his case down for trial in four months.

  I could see that Howard really was coming around, gradually. Fissures were appearing in his delusional system, though he tried to shore it up.

  “For a while, I thought, ‘I’m in trouble. I better face up to it,’” he told me. “I thought the paperboy saw me shoot them. But then I realized that he was lying.

  “And my friend Lenny can’t testify that I gave him the gun,” Howard reasoned, “because he got rid of it, and that’s a crime, destruction of evidence.”

  “Who said you gave Lenny the gun?” I asked, taken aback.

  “You told me that,” Howard said.

  “I never told you that, Howard. This is the first I’ve heard of it.”

  He frowned thoughtfully. “Well, it must’ve been somebody else.”

  One day he called me up and told me he was “ready to tell the truth.”

  I drove over the bridge onto the small-town main street that is Martin Luther King Boulevard in Anacostia, past the World’s Largest Chair (19½ feet tall, 4,600 pounds, mahogany, presented to Curtis Brothers Furniture Company for their outstanding leadership and service to the public, 1959), to the top of a hill, where a nine-foot brick wall on the right side of the road and an iron fence on the left signified that I was traversing the St. Elizabeths grounds. I continued by three gates, until the wall on the right gave way to normal society’s border crossing, a forlorn frontier outpost whose vandalized sign read

  nald’s

  RGERS

  LION SERVED

  I hung a left into gate number 4 and parked. I walked along Dogwood Street (the sign said), between a number of gloomy, forbidding Victorian brick buildings with orange tile roofs. A faint odor of disinfectant wafted on the spring breeze.

  An elderly man with spindly white legs, in denim shorts and a rumpled checked sports shirt, walked by me without appearing to see me. He seemed to be concentrating on putting one foot in front of the other, as though counting his steps. Several other old men sat on park benches, one to a bench, silent, still. A young man lay half-asleep in the shade of an oak tree, his hands in his pants. A crewcut fellow walked over, and, smiling amiably, sat down beside him. “You got a hard-on?” he asked. A little orange Cushman work vehicle puttered by like a lunar explorer.

  Don’t you want me, baby?

  Don’t you want me, o-o-o …

  Another thirty-minute free ride from

  D.C. 101!

  I could hear a radio blasting in the John Howard Pavilion. A six-story brick building which looks like a phone company office, it holds defendants undergoing pretrial mental observation, as well as those who have been committed following verdicts of not guilty by reason of insanity. As I drew nearer, the radio was joined by the solitary thump-thump-thump of a one-man basketball game inside.

  Entering, I was frisked, and walked through a metal detector, then through a turnstile. (Another turnstile would count me on the way out.) An electronic lock was activated, and I shoved open a steel door. It clunked shut behind me. A steel door ahead of me was buzzed open. I was met by an attendant holding a big ring with about fifty keys on it. He walked me through a twisting course, unlocking doors and locking them behind us, to an elevator operable only with a key. After the elevator, there were more doors, more locks. Altogether, I had passed through seven locked doors when I arrived on Ward 7. A dozen pajama-clad lunatics shuffled up to me in zombielike Thorazine trances. They all appeared to have poorly fitted glass eyes—too large, and too dull. Howard and I went into an empty office, shut the door, and sat down, alone. There I was, with a homicidal maniac, and seven locked doors behind me. He won’t hurt me. You’d have to be crazy to hurt your own lawyer.

  Howard solemnly announced that he had decided he could trust me, and he was going to tell the truth. I played a drum roll in my head.

  “It was an accident,” Howard said. “Sheila had got me five hundred dollars’ worth of drugs, and I owed her the money. I kept telling her I would get it soon. Then, that night, I bumped into her and David on the street. David was drunk. He started arguing with me about the money. Then Sheila said she was going to kill me if I didn’t pay up right then. She pulled a gun. I grabbed it, and while we were struggling for it, it went off three times.”

  This story wasn’t true; or, I should say, I didn’t believe it. The paperboy saw Howard fire at Sheila. But the interesting thing was that Howard was now using facts to construct his story, very much as a lawyer does. The paperboy said that David did appear drunk—he stumbled off a curb; and he did hear an argument in which one of the men—he didn’t know which—said, “Give the lady her money.” And he did hear just three shots, not the fusillade Sheila had said was fired at her on the ground.

  (Still more of what Howard had said from the beginning turned out to be true. To my surprise, the Citizen Complaint Bureau ultimately found complaints by Howard against Sheila in its files, which had resulted in two face-to-face hearings. The hearing officer had concluded, “It is quite clear to me that the complainant [Howard] hates the defendant, but why, I could not make out. I could not tell who was telling the truth.”)

  “Howard,” I said gently, “I have to advise you that, in my professional opinion, a jury will not believe that the gun went off accidentally three times. And the paperboy will testify that he saw you stand there and shoot Sheila.”*

  “Well, it’s obvious the paperboy’s lying,” Howard explained with a shrug.

  Howard’s partial reconciliation with reality led him to compromise. He agreed to let me move for a two-stage trial. We would proceed with the defense of “accident,” and then, if and only if he was found guilty, we would advance the defense of insanity. The judge denied that motion, however. We would get only one trial and only one jury. We could choose between accident or insanity, or we could argue both to the same jury—“he was insane at the time of the accident”—an unde
sirable way to proceed, since the jury would be skeptical of our insanity defense once we had squandered our credibility on the accident theory.

  Howard had no trouble understanding the problems this ruling raised. He modified his plan: he would plead not guilty by reason of insanity outright if there were nicks on the sidewalk at the crime scene, corroborating Sheila’s story that he had fired at her on the ground.

  There weren’t any nicks on the sidewalk. I considered lying to him—saying that there were. That one little lie might avert a twenty-to-life sentence. But I had never lied to a client, at least not about anything important.

  I decided to tell him the truth and persuade him to go with the insanity plea anyway. I thought the truth might have a special aura, visible to the insane, which would cause him to accept it.

  I fortified myself with Wild Turkey—trying to get on Howard’s wavelength—and drove out again to see him, and to test the power of truth.

  The moment I walked in, he said, “I’ve been thinking this over, and I’ve talked it over with some people here, and I think I better go ahead and go along with that insanity plea. I mean, if they’re going to be making up evidence, there’s not much sense trying to fight it.”

  You may be crazy, but you’re not dumb.

  The government, in a last-ditch effort to develop evidence that Howard was sane, obtained a court order to have him evaluated by the city’s most prosecutorial psychiatrist. (“They roll back a stone and pull him out of his cave for situations like these,” my supervisor said. “He never finds anyone insane.”) But even this doctor reported, “Schizophrenic behavior is not necessarily completely disorganized. If Mr. Robbins’ behavior showed indications of reflection on the consequences of his behavior, it would not be inconsistent with schizophrenia.” He concluded that the shooting was a “product” of Howard’s mental disease.