Devil's Defender

by John Browne

  And so I give lots of talks and speeches to organizations at conferences and other gatherings but rarely get invited back. The reason, I realize, is my directness and weird sense of humor. I once gave a talk with a prosecutor at a high school assembly of three hundred or more students. The prosecutor told them that the reason he was a district attorney was because of his time in “Nam” and the blight of drugs in America. I followed his speech by telling the students that the reason I was a lawyer was because I was arrested, wrongfully, and there was a difference between drug use and drug abuse. The reaction was immediate. The principal said, “Time is up,” and later wrote me a nasty letter.

  This was similar to the reaction of the Washington State Bar Association when I spoke at a convention (with a thousand or more in attendance) and stated that the ethical rules are “advisory” rather than “mandatory.” The speech got good reviews, but the mucky-mucks at the bar were offended. I was never invited back. I continue to this day to be in conflict with the bar association. My impression is it is an organization of good ole boys protecting the status quo. You rarely, if ever, see a prosecutor or big-firm lawyer sanctioned by this group of elites.

  But if I’m being honest, my belief in the interconnectedness of us all—again, the thing I believe Ted Bundy lacked—is what has made the seemingly impossible possible. My accomplishments required the help of many others and often divine intervention, which continues to make me wonder at the magic in life.

  No one thought I could save the life of a young man who shot and killed thirteen people. But I did. The prospect of getting a plea bargain, with four states, to save Ted Bundy from the death penalty was slim to none, but I did (even if he didn’t ultimately take the deal). Bringing exposure to the corruption of an entire criminal justice system and the corruption of a community seemed a daunting task, but with the help of others I began to unravel the nightmarish reality known as the Wenatchee Witch Hunt, leading to the exoneration of more than thirty wrongfully accused people.

  Recently, with Colton Harris-Moore, I was told it was impossible for nearly seventy criminal cases from two different countries, six different states, the federal government, and many counties in Washington State to be consolidated into two cases and result in concurrently reasonable sentences, but I accomplished that task.

  And, finally, no one thought I could spare the life of Sgt. Robert Bales. But that happened too.

  My fervor has increased over the years as I’ve tried to make sense of our acceptance of unjustified wars fought by the poor for the upper class, of the very government that could allow my father and others to create a device powerful enough to end humankind, of witnessing people beaten by cops, of spending several nights in jail alongside others who were not just oppressed by the system but also utterly destroyed by it.

  While I can’t say I’ve changed the world, I can say it certainly has changed me. And I do know that I’ve made a significant difference in many lives, one case at a time. For me that is enough.

  APPENDIX A

  JOHN HENRY BROWNE’S TEN RULES FOR TRIALS

  1. Know your case from both sides.

  2. Never waive opening statements.

  3. No boilerplate.

  4. Tell a story. A trial is a drama.

  5. Don’t lie to a jury or make promises you can’t keep.

  6. Try all cases you can win. Only plea bargain because you can’t win.

  7. Always hide the ball from the prosecution.

  8. Don’t fight issues that don’t matter.

  9. Always consider resting without putting on a case.

  10. Complex preparation. Simple presentation.

  APPENDIX B

  THE LETTERS OF TED BUNDY

  October 31, 1976

  Dear John:

  Thank you for your letter of October 27. I too, wish the circumstances of our first contact since last February were different. I had intended to write to you on several occasions during the past several months to express my appreciation for the moral and professional support you have given me and my girlfriend and others close to me.

  Recent developments seem to indicate that I will be desperately in need of such support in the near future. I have had a tendency to be overly analytical about the motivations of the Colorado authorities in filing their case at this time. I suppose my real concern should not be “why” they filed but “what,” they filed. Whatever their reasoning, they have taken the plunge and are now committed to follow through. However, according to their own admission, their affidavit outlines the same case they had eight months ago. It is safe to say that bringing the case at this time was prompted by considerations other than the circumstantial evidence contained in the arrest warrant affidavit.

  Whether or not their case is a strong one, and I am convinced it is not, the threat I face is considerable for numerous non-evidentiary reasons. First and foremost is the publicity. Next comes my conviction for kidnapping in Utah. The third strike against me involves the significant potential for official misconduct (i.e., falsifying evidence) on the part of those who, “believe,” in my guilt and feel as it is their duty to bring about my conviction.

  Finally, I am at an extreme disadvantage due to both a lack of funds to hire attorneys, investigators and experts, and to the prosecutors’ seemingly unlimited investigative resources; resources which can, quote, “create” an image of credibility when no case exists. It is this last point [that] most concerns me. If I could fight them on an equal footing, I have no doubt I would be acquitted. One man, an attorney, [name removed], no matter how skilled or competent, is no match to prepare a defense to equal the complex case the prosecution has created. Without more assistance, the consequences to my life could be fatal.

  You have no obligation to come to my aid, but I am begging you to do so because my life hangs in the balance. I am asking you to provide whatever services you can offer, because I am immensely impressed by your legal intelligence and more so because I like you and feel comfortable with you. I need your help now more than I have ever needed help before in my life. What more can I say except “please” help me?

  Sincerely,

  Ted

  PS: I will avoid discussing details of the Colorado case in letters. I will only talk about the case directly to my present attorneys. If you should have questions, submit them through my present attorneys, and if you haven’t read Colorado’s affidavit, I will ask my present attorney to send you a copy, should you be in a position to help, that is.

  November 1976

  Dear John:

  I received your letter of November 10 today and find some encouragement in your news, if only because it indicates your continuing willingness to help. I would like to keep my options open regarding my final choice of counsel. I have had no contact with my present attorney and will be unable to make a decision about him until I have talked to him personally and at length. I hope you will understand my reservations as it is my belief that I must have complete confidence in someone in whose hands my life will be placed. I have written my present attorney asking his opinion on several critical matters, including extradition, and requesting a meeting with him before I go to Colorado.

  Of course I would prefer an alliance between my present attorney and you. If I had a choice at this moment between the two of you, I would choose you, but I am not sure I can afford that choice.

  I am in complete agreement concerning guaranteed reimbursement for expenses and lost salary should I ask you to handle my case. Is there any way you could give me some general estimate of what this might amount to for Ressler and you? I know how difficult this would be, but if I had an idea, I would be able to determine whether or not I am capable of raising such an amount at all.

  I wouldn’t hold you to an estimate in any event, but if you are out of the ballpark, I had better know now.

  The question of extradition carries more significance for me than whether by fighting it I can avoid it. I will be extradited too no matter what, but by opposi
ng extradition, are there advantages which outweigh the disadvantages?

  In your opinion, in a habeas corpus hearing on the matter, would not it be possible to expose more of the prosecution’s case, if indeed there is more, as well as, quote, “freeze” what they already have? I think there is a positive potential here.

  Second, I am convinced that much time will be required to prepare my defense. The prosecution has been investigating and building their case for 14 months. God knows how many man-hours and how much money has been expended. Positions, such as admitting evidence as a, quote, “common scheme and plan,” involving incidents in other jurisdictions have been thoroughly briefed. I need time, and I would rather spend it in the Utah State Prison than in the Pitkin County Jail, fighting extradition. Fighting extradition will buy some time, don’t you think?

  The negative consequences to such a fight would be, as you observed, publicity and inferring my uncooperativeness. This is a difficult issue, which ultimately involves the whole area of pretrial publicity in my case.

  The first question is what is the volume and substance of publicity at this point in the Glenwood Springs/Aspen area, and what is it likely to be in the future?

  I will ask my attorney to make a study of this, should a motion for postponement on grounds of pretrial publicity be warranted. Will my opposition to extradition do any further harm? I am not convinced that it will, especially since I intend to make clear the reasons why I am fighting extradition: 1) I was not in Colorado at the time of the commission of the crime; and 2) Need time to overcome great prosecution advantage.

  Bad reasons, you know, I just thought the effect of fighting extradition is not nearly as damaging as the impact of losing that fight, which will eventually happen.

  Now I have changed my mind a lot, damn it. I think it is perfectly suicidal to rush into a strange state and be represented by an unknown attorney who has but a few weeks to prepare against a case, which the prosecution has been plotting for over a year. I believe it is literally suicide. What do you recommend?

  This is a case which will be won or lost on the ability of the defense to do the following: 1) Thoroughly field investigate; and 2) Suppress testimony related to other crimes.

  I will elaborate more on that issue later. Can’t fit any more paper into this envelope. Thanks again for the letter.

  Hang in there,

  Ted

  November 29, 1976

  Dear John,

  My issue of the Wednesday, November 24, 1976, Seattle Times contains an article on A4 with a bold heading, quote: “FBI Links Hair Samples to Bundy.” This is just not something I expected from the Times. What are they doing, warming up the cross for my crucifixion?

  This is one of the most flagrant examples of prosecution by the press that I have seen. The worst thing about this Seattle Times article is that it will be carried by the wire services and broadcast in the Denver and the Aspen area.

  Damn it, John, I can’t get used to this abuse. The impact of the article is deadly, without the knowledge that hair samples are far from being identification.

  He goes on to mention, quote, “several” eyewitnesses, when, as you may know, there was one woman who picks my picture one year after the Colorado disappearance and stated that she had passed a, quote, “strange” man in the hall the night of the disappearance, who looked like me, an observation she neglected to mention to police until a year later.

  Note also how the fallacious escape materials—also how the escape material allegation is injected to magnify the inferences of guilt.

  The intent of the article is purely malicious and prejudicial. I feel powerless as I watch my conviction firsthand by the media. I see this article as part of a calculated attempt to convince the public of the official belief in my guilt, and to influence the outcome of the Colorado trial.

  I had to do something. Enclosed you will find a letter to the editor of the Times. Would you read it and if it seems appropriate, do what you can to have it published? “Thanks.”

  Best regards,

  Ted

  July 7, 1977

  Dear John:

  Good heavens . . . it has been over three weeks since my early morning call to you upon my return to captivity, and I am just getting around to saying, quote, “thank you,” to you for coming to my aid, coming to Aspen, and just generally making me feel less like a fumbling, stupid idiot I was behaving like.

  Aw, but that adventurous chapter is behind me, or so I would like to think at this moment. The ghosts of my escapade will return [in] the form of five counts and a new information. I will behave like the hardened convict I am and say, quote, “Fuck it. I have got broad shoulders.” That is what a hard con would say, isn’t it?

  Since my return, I have been in procrastination—in a procrastination inspired slump. (“I have got plenty of time; the suppression hearing isn’t for two months.”)

  Instead of working, I have been doing push-ups, pull-ups, jumping rope, and have done my best to emulate Tarzan. I am eating nuts, took vitamins, gagged on nutritional yeast, and in the process have (at least to my own mind) become a superb physical specimen.

  Now I am sitting here wondering what makes me want to be so damned healthy.

  Today I emerged from both my, “slump,” and my Fourth of July depression, and decided to entertain myself with the criminal law again. What a shameful attitude. However, working on the case has become both fun and distracting, an attitude which no doubt reinforces the point of view that I shouldn’t be handling this case—but Christ, if a person can’t enjoy the work, why do it? It is just plain challenging.

  It is also just a bit frightening at times, too.

  Today, for instance, I decided to research the area of suppression of evidence material and favorable to the defense. Since several re-readings of the documents in question convinced me that they alone might warrant a new trial.

  I took the amicus brief that you wrote in the Wright case. I looked up a few cases, the most recent US Supreme Court being United States v. Aggers. What a horrendous case. The Berger Court is very unsound. Agurs [sic], on top of Brady, is like mustard on top of chocolate cake. It just doesn’t make sense and gave me indigestion. Until . . . I talked to an attorney (I knew they were good for something); the attorney just happened to mention that Aggers came down in June 1976 and that all of the discovery in my case took place between November 1975 and February 1976. Thus Brady and its progeny, free of the Aggers sliding rule (this is where the prosecutor slides everything into the police files and says he never saw the stuff, honest!) would be applied in my case.

  Still, this is no guarantee, but I am more confident about receiving a new trial now than ever before.

  At this point, however, I think I would lose a new trial in the kidnapping case, but hell, getting there would be half the fun, anyway. So I am fat and healthy, munching on something called, “peanuts and caramel log,” one of many goodies sent to me by my friends. Sounds disgusting, and it is, but I have a munchy mentality and I truly love it.

  Thanks again. You have done a great deal for me. I want you to know how I recognize it and appreciate it. Now try to take that to the bank. How much is it worth to you to have me tell you that I can’t imagine a finer defense attorney than yourself? It’s true. I consider myself an expert on the good ones and the bad ones.

  Best wishes,

  Ted

  June 1, 1979

  Dear John:

  During the time you stayed in Tallahassee, we had a chance to discuss at length developments in the case. If you feel anything like I do, you are sick and tired of hearing about the Bundy case.

  It was great seeing you and talking with you again. There can be little question as to why you are doing so well in your practice; you are an exceptionally bright and concerned person. You are much more than that, but the way in which you reach out to those whose causes you advocate is extraordinary.

  I am fortunate to have had you on my side and there is no adequate man
ner to express my gratitude for the time and expense you took to come help me, except to give you a deeply felt, quote, “thank you,” in every way.

  Best regards,

  Ted

  October 15, 1984

  Dear John,

  Are you still there? I mean, are you still in the Smith Tower? I hope this is forwarded to you if you are not.

  How are you? Still running? It has been a while since we have been in touch. Carole told me that she and our daughter, Rosebud, just paid a visit to you around Christmas time last year.

  I have a favor to ask of you. Would you mind taking the enclosed letter I have written to someone associated with the Green River Task Force who has some sense and can be trusted to take the right steps to see that the letter both receives proper consideration and remains confidential?

  I know firsthand how professional egos and agency rivalries and conventional police close-mindedness can drastically reduce the effectiveness of an organization like the Task Force.

  I am pretty sure I can provide them with some valuable information if we can transcend such limitations. So please give it to someone with an open mind and a creative outlook on investigating such cases. Does such an animal exist? On October 1, I wrote a letter to the Task Force, which I sent via a superior court judge in Tacoma, a long time family friend. I asked him to let me know that he had received and forwarded it, but in two weeks I have heard nothing from him or the task force.

  Actually, I would have sent the letter through you in the first place, but it just didn’t occur to me until after I mailed the letter.