Friday, December 22, 2006
Since I am nearing the end of a long, dismal career in that field, I feel qualified to advise the young in this one area. More than that, I feel it is my obligation.
Don't make the same blunder I did, please!
Thirty six years ago I entered into this quagmire still flushed with that optimism that JFK had inspired when I was a Junior in High School - you remember: “...The torch has been passed to a new generation ... Ask not blah blah blah, but what yada yada yada ...”
In law school I was brainwashed by the hope that the legal system might change the world. Courts had discovered civil rights and civil liberties, corrected past injustices, led fights against discrimination, abuses of police power, narrow mindedness of all brands.
My mistake was to believe that this era of enlightenment was the norm, would progress. In the telescope of years, I see now that it was a kind of Golden Age, a tsunami that comes rarely and yields to the bitter reaction that is society’s norm.
By the way: "tsunami" is a better metaphor than "pendulum" because experience teaches that return to balance is not inevitable - once given up, liberties are harder to win back. Societal stasis favors Order over the chaos of freedom. Take a poll among your peers. How many would agree that it is better to release a guilty person than convict an innocent one?
In my time, the tide receded almost immediately, at first impelled by good intentions as always. In the Seventies, the feminist movement raised consciences about injustices in rape laws. Then came the Drug War, spousal abuse, child abuse, gangs, guns, victims’ rights - hysterical responses to increasing crime rates then blamed on the progressive reforms of the previous decade.
That the real causes of the upswing in crime were demographics, economics, drug technology, not the basics of the legal system hardly mattered. Perception counts more than truth. Every change was perceived as needed reform, not dangerous tampering with Justice.
Nonetheless, The System has crashed. Judges from top to bottom, drawn from the ranks of prosecutors, now see themselves as prosecutors in robes. Draconian laws, many passed through our “democratic” Initiative Process mandate long prison sentences while also making it easier to convict. Prisons are hellholes, overcrowded with hopeless exiles, death row packed with waiting skeletons. Ghetto streets are filled with a permanent underclass of guys with rap sheets.
Most of the advances of the Golden Age have been cancelled.
Appellate courts - federal and state - permit most hearsay and illegally seized evidence. The most egregious violations of rights and rules in trials are deemed “harmless error” if the appellate judges make up their own minds that the defendant was guilty anyway. No matter that the prosecutor withheld evidence, jurors lied, the defense lawyer slept. “Strict interpretation” of The Constitution and the “will of the voters” uphold laws that would have been struck down 30 years earlier.
It is not much fun to be a defense lawyer anymore, especially a public defender.
The L.A. Office grew enormously over the years and evolved into a cog of The System. The old motto was: Provide the most effective lawyers for the lowest cost. Now, it is: Provide cost effective lawyers, period. The change in emphasis is subtle but disastrous. Morale is at an all time low.
Imagine being assigned to defend a shoplifter with two prior felony convictions who can be sentenced to life in prison. A one day trial with no issues to argue, before a judge who last week was prosecuting these cases. The trial DA may sympathize - she’ll go to her supervisor for permission to offer a plea bargain - “strike a strike” and take a plea for six years in prison.
Back in the day, we felt we were the “best and the brightest,” winning against The System because we were smarter, more dedicated, more prepared than anyone in the courtroom. It was still hard to prevail, we lost more than we won, and it took a psychic toll. Now, it is impossible. Not only is The System stacked against the defense, prosecutors are the perceived heroes of The Culture. Most believe that it is noble to defend victims, not criminals.
So here's my conclusion:
I know now that nobility for lawyers is a snare and a delusion. But if you must become a lawyer and still want to think yourself noble, save the environment, or a doomed animal, or an artist ... but most of all, make lots of money and save some so you can tell them all to screw themselves.
Saturday, October 21, 2006
The signs of a decaying civilization may be subtle. Like temblors that merely rattle glassware for an instant, they foreshadow a cataclysm to follow. Case in point: an article buried on page B-5 of the L.A. Times of Saturday, October 21, 2006.
A Riverside County judge dismissed an “indecent exposure” charge against a woman. The controversy that made it news in the eyes of the Times editor was the judge’s reverse sexism, holding that the statute only prohibited conduct by males.
Whether the judge is right about that is of less interest to me than the underlying (no pun intended) facts, which the article didn’t get to until the 8th paragraph. A lady (age 40) complained that a neighbor boy (no age given) was making too much noise playing basketball in his yard. When he ignored her demands, she went onto her sundeck and “’He looked up at her, she looked down at him, and she disrobed.’”
What happened next is the scary part. “The boy ran inside and told his parents, who complained to [the woman]. When she threatened to do it every time he played basketball, his parents called police…. The family has since moved out of the neighborhood.” The “D.A. spokeswoman” commented, “’The whole incident is strange.”
Uh, yeah. Sure, the lady should have complained to the parents instead of taking such drastic action, but the misdemeanor the DA filed (P.C. §314.1) would require the lady to register as a sex offender for life.
Yet, even that is not what I worry about. My concern is for the boy’s well-being. It reminded me of a case I ran across as a public defender years ago in Pasadena. An 18 year old “woman” working as a playground counselor was charged with child molestation for fondling a 12 year old boy on a swing.
I place these stories in the same file as scandals about middle and high school teachers having affairs with students.
I try to imagine myself as a boy faced with these situations. Things were certainly different way back then. Sexism was not even a word. No one’s consciousness was raised above a leer. Sex was a mystery shrouded in an enigma, barely discernible through innuendo and snickers.
If I had been exposed to any of the situations set forth above, I believe we would have told my pals about it. Indeed, I dimly remember whispered hyperbole about such subjects. Someone would claim – to the awed, but skeptical listeners – that he had seen a naked lady, or been groped by “an older” woman. There were teachers whose endowments inspired soaring fantasies, sometimes related as facts.
But try as I might, I cannot conceive of any such event which would have impelled me to rush home after school or play and tell my parents. I can’t imagine a dialogue like this:
“Morty, how was your day? What did you learn?”
“Well, mom, it was a great day. Miss Smith, the substitute, er, taught me a lot, and then at the park, a girl gave me a, whatchacallit, a hand job, and – you know, Mrs. Anderson, she, er, complained about the noise we were making, and she took off all her clothes.”
Now that I think about it, I don’t think my mother would have rushed me to the local shrink – I doubt if she even knew of one – or the principal – and definitely not the police. My mother was - well I guess the word would have been - “earthy.” She delighted in telling a story about how my brother finally beat up the neighborhood bully in front of the kid’s mother who hit her son every time my brother did.
She might have giggled, been a bit shocked, but then might have bragged about it to her friends.
I’m not saying that it was a better world back then. Consciousness raising, over all, is probably a good thing. Adam and Eve had theirs raised – the old “knowledge of good and evil” idea. We were sexist – and racist – and a lot of other evil assumptions.
But I wonder sometimes about lost innocence.
Sunday, October 15, 2006
Paranoia is one of the prime constants of Borenstein’s Law. The Fates and The System all too often conspire to bring our clients down despite the righteousness of their cause.
We are attuned to this defense because we understand paranoia all too well. From the very start, we have felt its force. When we enter courtrooms for trials, the shock wave of contempt directed our way is palpable. Court staff – judge, clerk, bailiff, D.A. – irked that our presence means work and stress, often a tedious trial with a recalcitrant defendant making spurious arguments that must be tolerated.
Yet, the finest rage is directed at the lawyer, not the client. We are to blame. We have failed to “control” the client, to make the case go away by accepting the generous sentence offered. And we will be reminded of it and punished for it all the time we are there.
So I get it when I’m appointed to represent Horace. He threatened to kill his girlfriend and her (probably imaginary) lover, who he thought had come through the bedroom wall and was hiding in the mattress. Horace has been pro per for months beating his weary head against the legal wall. The police, DA, judge, and his public defender had formed a cabal to help the lovers get rid of him.
Horace has made another fateful choice. In a moment of coherent thought, he’s conceded his ineptitude. In a moment of extreme mental fatigue, I accepted the case.
Like most pro pers, Horace has made a hash of all the documents in the file. They are soiled, dog-eared, a mess. I spend too much time putting it into a semblance of order.
Horace has serious problems. He’s charged with PC 422, which used to be called “terrorist threats.” That title was a bit hysterical, so the legislature changed it to “criminal threats.”
It is a crime to threaten harm, even if you don’t really intend to carry it out. If the target thinks you mean it, you’re a felon.
Horace has a bad record. In 1994, he tried a “till tap,” a grand theft of a mini-mart clerk. He got probation. Two years later, he tried it again, and this time there was a struggle. That was a robbery, and he got 2 years for it.
The prior “serious felony” carries a mandatory 5 years consec, and it is also a strike, which doubles any base term and requires doing 85% of the time before parole. His max is therefore 11 years.
At the prelim, his girlfriend Alma, the victim of the threat, testified that on Saturday, Horace had accused her of her tryst with the wall invading mattress hiding guy. Horace had been drinking, and she assured him that he was deluded. Horace then ordered her to leave, saying he would get a gun and shoot her.
Sensibly thinking to spend the night at her mother’s to let Horace sober up, Alma called her mom, who panicked and called the cops. When the cops arrived, Alma didn’t tell them about the threat, because, she testified, she didn’t want Horace arrested. But when she came back the next morning and noticed that Horace had slashed the mattress, she was angry and concerned. So she called the cops and told them about the threat from the day before. The cops came and arrested him.
Alma testified that Horace was not a bad person. He only got crazy when intoxicated, and that hadn’t happened until he lost his job and got depressed. They’d been together for 4 years and he hadn’t been abusive toward her.
I get along well with Horace. He’s been chasing his tail trying to prove tangents. I pursue his diversions, but keep my eye on the crux – the guy needs help, not prison. No history of domestic violence or abuse. He was depressed and went a little nuts. Who hasn't, in a fit of momentary anger, yelled "I could kill you" to a lover ... or a teenager ... or a client?
The calendar DA agrees. He’s been coping with Horace for months and knows he’s more cracked than bad. But his office wants the 5 year prior, so he offered low term (16 months) + 5 years. The law forbids judges from discretion. The DA has all the power and they won’t budge. The DA’s office is suffering from its own paranoia. If they are lenient with this crime and the defendant goes OJ, they might look bad.
I do some investigation, research, subpoena records from prison and his job, verify both his mental illness, drug & alcohol problem, and his work history. I get a shrink appointed. His report is no help. Horace hears voices, hallucinates when loaded, but he’s sane and if he did the act he must have had the intent to do it. Thanks.
So we go to trial. It is a short one. One day to pick a jury, one day for the DA’s case, a half day to argue. They go out at 11 and return at 12. NG.
The trial DA says, “See, I told you there was nothing to worry about. Justice prevailed.”
Sure. No problem. Just a few sleepless nights worrying about every decision. A sore neck from keeping Horace from screwing it up. Second guessing myself every inch of the way. Thinking something was going to go wrong. Hoping for the best and preparing for the worst takes it out of me. The NG is a relief, not a thrill.
Horace can get his own help. Maybe. I’m beyond help. So is The System.
Tuesday, September 26, 2006
Nate chortles. "Did I ever tell you about Johnny Fuck Fuck?"
I tell him no, because I am certain that if I heard that name, I would remember.
"Johnny was a character who I ran into a lot in those days. He was a small time crook and sometime snitch, doing us little favors to get out of his many jams. He had Tourette’s and when he got excited everything he said was punctuated by "fuck fuck."
"Well, you mention Wallich’s Music City. It was at Hollywood and Vine. And right next to it was Stuff, a seedy bar that for some reason became an in place when I first made detective, I think it was in ‘66.
"It’s my first week at the Hollywood Division as a detective and this senior detective, Van Vleck, says to me, 'hey kid come with me, I got to make an arrest.'
"Van Vleck was one of the old timers, and I'm new so I just tag along. He’s looking for this guy who’s supposed to be a big receiver of stolen goods in Hollywood.
"We go into this little bar, Stuff, and it’s real seedy, but it’s jammed. Van Vleck goes over to the bar and asks for a particular bartender, who’s not on duty yet. Then the owner, Johnny Vera was his name, he comes over and he obviously knows Van Vleck real well.
"He invites us up to his office to wait. I follow the two of them up these winding stairs that are like hidden near the restrooms, and we enter this office. I swear, the office was like the size of one in the White House, and furnished like for a king. Right above this tiny seedy little bar.
"Johnny Vera points to his private bar, and its bigger than the one downstairs. He says, 'Drink?' Van Vleck says, 'Sure.'
"Well, we’re sipping our drinks and guys are coming in and out, Vera gives them orders, and time goes by. Then two big guys come in carrying these marble pedestals, that must have weighed twenty, thirty pounds each. There were three of them, and these wrestler looking guys set them down in the middle of the floor of the office.
"Vera says 'Ok,' and he continues to talk with Van Vleck. I don’t remember what they were talking about. I was just a kid, and I was just soaking in the atmosphere. Some time goes by.
"Then, three girls come in, each one more gorgeous than the other. And Vera nods at them, and they take off their clothes. Right there in the middle of the room.
"I don’t know what’s going to happen. I look at Van Vleck and he’s got a big shit-eating grin on his face. So, I’m wondering. There’s three of them and three of us. And my first thought is, Gee, being a detective is gonna be a lot more fun than I thought.
"Then the girls get up on the pedestals and just stand there smiling. And some guys come in with paint cans and start painting their bodies. Swirls and flowers, you know, in these da-glow colors, red, blue, green. All over their bodies.
"We’re just sitting there, I’m sipping my drink and Van Vleck and Vera are talking away, and the girls are turning around and lifting their arms and spreading their legs so the painters can get into all the nooks and crannies, and then the phone rings. Vera says to Van Vleck, 'He’s here.'
"The three of us go downstairs to the bar and the new bartender gives Van Vleck a piece of paper and we leave, go to the address on the paper, which is a boarding house on Fountain.
"Van Vleck knocks and a guy opens the door. He’s dripping wet, just out of the shower. Van Vleck grabs him by the wet hair and drags him into the room, asks him if he’s got the goods, which are a bunch of men’s suits stolen from a store.
"The guy is scared of Van Vleck. He says, 'No, I don’t have any.'
'What do you call these,' Van Vleck says, pointing to some suits in a closet.
'They’re not hot, they’re mine,' the guy says.
"Van Vleck grabs him by the throat and pulls him up from his seat, puts his nose up to the guy's and says, 'You better not be fuckin’ lyin’ to me.'
'The guy says, I’m not fuckin’ lyin.’
"Van Vleck makes a phone call and ten minutes later a uniformed cop comes in with the owner of the store, the victim of the heist. He checks out the guy’s suits and says, 'They’re not mine.'
So then Van Vleck puts his nose in the victim’s face and says, 'You better not be fuckin’ lyin’ to me.'
"The guys scared, and I have to step in because Van Vleck’s face is red.
"Finally Van Vleck stalks out, really steaming and cursing, and I follow him down the stairs. 'Where we going?'
'That fuckin’ bartender fuckin’ lied to me.'
"By the time we get back to the bar, I have Van Vleck calmed down a bit so that at least he’s not going to kill the bartender. We go into the bar and it is really jumping. Lights are flashing and music is playing and on top of the bar are the three girls dancing like go-go dancers, but they’re not in cages, they’re on top of the bar naked but painted all over and everybody’s having a good time.
"I go over to the bar and there’s Johnny Fuck Fuck, grinning at me. 'Hey, Nate, that’s somethin’ ain’t it? Fuck. Fuck.' I shrug and watch the show.
"Then Johnny Fuck Fuck whispers, 'Hey Nate, watch this.' He pulls out a piece of red cellophane and puts it up to his eye then to mine and when I look at the girl with the red & pink body, she’s naked.
"Johnny Fuck Fuck giggles and gives me a blue cellophane and then a green cellophane and they work the same with the other two girls which Johnny thinks is great. He keeps mumbling, 'Fuck fuck.'
"Some time later I ran into Johnny Fuck Fuck again at the station.
"His brother had been hired to kill someone, got a couple of hundred for it. But they guy who did the hiring was working both ends and had told the guy who was supposed to be shot about it in return for more money. Johnny’s brother went to do the deed and the supposed victim shot him. Didn’t kill him, everybody was trying to figure out if it was a case, who to arrest and such.
"And Johnny Fuck Fuck was hanging around putting in his two cents or at least his two fucks."
Monday, September 18, 2006
They had done everything right, more than right, ideally. Better parenting skills were not possible. Not just by the book, they could have written the book.
Affection, discipline, attention, values, nurturing, education, opportunities, appropriate positive approval with rewards for good behavior and immediate and appropriate punishment for misbehavior. They were strict, yet loving. They had provided a balanced environment, made none of the mistakes their parents had made, fell into none of the traps of either permissiveness or callousness.
And now, it seemed it might all have been useless. If this child went wrong, the implications were enormous — there is no hope for any conscientious parent.
And yet here he was. Sitting across from me, smiling a benign smile, seeming oblivious to the decision he was contemplating that might lead him on a disastrous path.
When I arrived, the tension was palpable. The Mom and Dad were pathetic in their apparent despair. It was like an ER.
My strategy for this intervention was to strike quickly, a sudden slap in the face, a punch in the gut, the shock treatment.
"What the fuck are you thinking?" I spit as I enter.
He is shocked, he reels, but retains his goofy smile.
"I’m not kidding, kid, if that’s what you’re thinking. I’m dead serious."
"But, like what’s wrong? What did I do?"
Good start, he’s on the defensive.
"You don’t even know you’re on the edge of a cliff, the rim of a volcano, one foot on a slippery slope to destruction."
My metaphors wound him. I feel a pang of guilt.
My friends feel their son’s pain, but steel themselves. They knew it would hurt, but it is almost too much. All their protective impulses must be stifled. This is the toughest tough love.
The kid begins to well up. But he counterpunches, gets me right in the stomach, completely unprepared.
"But you, it’s what you do."
I stagger. I’m the one who is shocked.
I look to my friends, his parents, for help, see the looks in their eyes. Me. It’s my fault. All their work was ruined because of me.
But how? Sure, I’ve known this kid all his life. Watched his growth, along with my own son’s, envied the skills his parents had shown. Yet my kid turned out okay, hadn’t made this fatal turn. So why is it my fault?
"You made it sound great! All those stories, man. And, and, like fighting the good fight, man. Its like awesome, dude."
I’m dizzy now with terror. I sputter.
"Kid, you can’t be serious. You didn’t believe all that bull, did you? You weren’t listening. Sure there’s laughs and highs. But for every high, there’s ten lows that are way lower than the highs are high. In the end you lose, you get crushed. You want to end up like me? Look at me. Take a good look, kid."
It may have worked. For the first time, the kid blinked and saw me for what I really was. Not the cool, terribly witty dude, but the old, bitter hulk, the residue of a wasted life.
He wept and his Mom enveloped him in her loving arms. His Dad grasped my hand and my shoulder.
Tearfully, "Thanks, mort, I know that wasn’t easy."
"Its okay." My breath returns. "Growing up is hard. The heroes have to be toppled. But how did it get this bad?"
"I didn’t see it coming," the Dad said.
"When he started law school, I actually supported it. I guess I wanted to believe. When he talked about criminal law being cool, I thought, okay, he could be a DA. But then, all of a sudden, he starts talking about defending, and now he applied to the public defender. I was stunned."
"I’m so sorry, pal. I blame myself."
"No, I think its okay now. Now that he sees you as you are. That took guts."
"Hey, what are friends for."
Sunday, September 10, 2006
At the urging of my son the internet guru, I am posting a version of that lecture here. While my blogging is not usually aimed at criminal defense lawyers and includes observations about a lot more than those that occupy my profession, it is offered here as a glimpse into our little world.
HOMICIDE CASE PREPARATION
I learned more in the lunchroom and halls of the Public Defenders office than I had in 3 years in law school --- by listening to the "war stories" of PD's who became legends in our profession -- Dick Buckley, John Moore (the "Onion Field" lawyer), Bill Littlefield, Paul Fitzgerald, Stu Rappaport, and Charley Gessler, among them.
So Charley comes into the lunchroom with his brown bag and ever present styrofoam coffee. There are the usual winks and snickers around the table. Charley is in the midst of trying a case the press had dubbed "The Skid Row Slasher Case," a brutal series of murders of pathetic homeless people. Rather than pitying Charley for this miserable assignment, the attitude of his peers in the Office is to needle him unmercifully. Like soldiers in battle, these guys are glad he had been chosen to volunteer for this particular hopeliss cause and not them.
"How's it going, Charley," they chuckle, knowing that Charley is being pummeled every day by piles of evidence. Charley chews his sandwich and says earnestly, "I had a good morning session. I think I see an argument on the weapon use allegation in count 26."
The lesson I learned that day was that in the toughest cases --- the real lemons that make us groan when they're dumped on our desks --- our job is to get the best result possible - whether that is walking the client out the door or only striking the use allegation in count 26. The skill of defense lawyers is to squeeze every drop out of the lemon.
And that usually means knowing more about the case than anyone else. That's where "Discovery" comes in. That is the term applied to the process of gaining information in lawsuits.
In 36 years of defending in homicide cases, I've developed some of my own ideas, which I now share in this "lunchroom."
OVERVIEW: “The ANTI-checklist approach”
Lawyers are fond of "checklists" to remind them of the tasks they need to perform. Here's one of them.
- ___ Discovery
- ___ Investigation
- ___ Motions
- ___ Experts
- ___ Negotiations
- ___ Defenses
- ___ Argument
My approach is more --- excuse the expression --- holistic.
All the tasks are interreleated and continuing, Like grief, discovery is a process, that continues and affects the whole case.
Every murder case is a mystery - not always a thriller, and not always a "whodunnit." It can also be a "whydunnit" or a "howdunnit." But there is always some mystery - a story to unravel.
My talk made some basic assumptions. First, most in my audience (of about 250) were public defenders. The most common homicide cases they would be assigned would not be like Agatha Christie novels in which Lord Twit murdered Lady Nitwit with rare poisons in her tea or a movie about a Mafia hitman from the Badabing.
Most homicide case involve the following:
Gang confrontations, the sort of common street encounter that begins with the audacity to look someone in the eye - called "mad-dogging" - an offense that can be fatal.
Impulse killings - triggered by quarrels after simmering passions: lovers, parents, babies, druggies, barflys, crimies - people who know each other - often too well.
Killings during crimes: drug deals gone bad, burglaries, robberies, carjacks. The "felony murder" law says that any death - whether accidental, negligent or intentional - during certain felonies is first degree murder. Others can trigger 2nd degree murders. Misdemeanors can lead to manslaughter or in some cases (like DUI) murder charges.
My lecture was not designed to explain the law. I assumed that my audience knew the law or at least how to find it. The law of homicide cases is the most complex in criminal law, maybe in all of legal scholarship.
It was also not designed to prepare for capital defense, the top of the pyramid of homicide defense. I merely reminded them that the pressure of focusing on penalty issues often blinds lawyers to the reality that the facts of the crime often determine the penalty outcome. Even after a guilty verdict, the jury often votes against a death sentence because of "lingering doubts" about guilt, which might be the result of issues raised very early in the case by the hard work of the "discovery" process.
One of the most important ideas I emphasized was that:
HOMICIDE CASES ARE NOT FOR DILLETANTES
A reporter preparing a series about capital defense lawyers asked me why most were grey haired old men and women. The implication was that we are a dying breed. I ducked the question of 'where is the new generation going to come from' and told the reporter that gray hair (or the absence of any) is needed because it takes a lifetime of experience and survival to be the best at it. You don't spring from the shell knowing how to do it well and you have to be dedicated and make sacrifices of time, energy and stress.
Analogizing the legal profession to medicine, a lawyer doing a civil case or a DUI is like a dermatologist, while a capital murder case is brain surgery.
HOMICIDE DISCOVERY IS DIFFERENT
I mentioned this lecture to a judge who was a former DA and he said, "How is it different?" He was trying to impress me with how scrupulous and ethical he perceived himself to have been - and to be honest, this guy was - but not all DA's are.
The trend is to "hide the ball." Emboldened by appellate neglect, defense laziness, the impulse to win the big ones, many prosecutors and police agencies give up the goods grudgingly, if at all.
Prosceutors are torn between their ethics and their ambition. DA's often are involved in the investigation and continue their work until their target is dead. Homicide detectives view themselves as a breed apart. They act like stars with presence, stalking crime scenes and courtrooms with their "187" belt buckles and western boots.
The pressures include the publicity that often swirls around murder cases, true regard for families of the deceased, the implications for the community.
These cases are complicated, generate reams of paper (now also filling CD's). The facts are dispersed among many official and private sources of information. Unearthing them requires knowing what to look for and where. It requires subtlety, experience, and imagination.
My lecture included a startling revelation that runs counter to popular belief:
LAWYERS ARE PEOPLE TOO.
In law school we were trained (brainwashed) to "think like a lawyer." This was meant to force an orderly and rational approach to legal problems - find the facts and the inferences, spot the issues in the case, determine the applicable law.
But homicide cases are unique in popular culture. The subject of murder is so pervasive that everybody thinks they know something about it. Everybody's heard about "malice aforethought," "self-defense," "alibi."
The judge is going to give the jury a set of complicated legal instructions to give them some legal education. They're not going to be able to do it.
What's a juror going to make of the difference between 1st and 2nd degree murder? What's the difference between "premeditation" and "express malice"? A manslaughter means "intent to kill" but no "malice aforethought"? How can manslaughter be "involuntary? How can self-defense consider "fear" but not "anger"? Who is this imaginary "reasonable person"?
What are they going to think about the "victim," the witnesses, your client.
Every defense lawyer gets a chill that moment when the jury panel crowds the courtroom and the judge reads the charges for the first time. "The defendant is charged with murder." You feel those hundreds of eyes bore into your back. What are they thinking at moment?
Our skill is to translate "legal" into English for the people who are going to decide our client's fate. We have to learn to think like jurors, not lawyers.
FOR THE DOCTOR WANNABE
Another cool thing about homicide cases is that they will make your parents and loved ones, for once, proud because you can finally be that doctor or scientist they always wanted you to be, instead of the career you foolishly chose. At the very least, you can impress your friends by knowingly complaining about the defects in "CSI: MIAMI."
You are going to become expert it any or all of these sexy fields:
weapons, medicine, DNA, bodily fluids - blood, semen, criminalistics - ballistics, fingerprints, psychology and all forms of perverse behavior.
Discovery is part of the process that allows you to become an expert, which you need in order to create credibility with the jury so that they will listen to the points you raise on cross-examination, with your own witnesses, and to your argument. Discovery is your continuing education essential to your preparation.
Discovery comes from many sources. The first is from your opponent, the DA, who as noted, is your adversary, the advocate for The People.
DISCOVERY – From DA: INFORMAL FORMAL DISCOVERY
To insure that the DA will be forthcoming, you have to establish an "attitude" at the start and consistently apply it throughout the case. You will appeal to the DA's sense of ethics about his noble profession:
“THE DUTY OF THE DISTRICT ATTORNEY IS NOT MERELY THAT OF AN ADVOCATE.HIS DUTY IS NOT TO OBTAIN CONVICTIONS, BUT TO FULLY AND FAIRLY PRESENT THE EVIDENCE.” PEOPLE V. KASIM (1997) 56 CAL.APP.4TH 1360, AT 1378.
BUT you're going to appeal to his (her) ambition, by citing the many cases excoriating prosecutors for misconduct when they concealed evidence. You're going to remind him that the law requies disclosure, even without request, of "relevant exculpatory evidence" and that he can't hide behind a policy of "don't ask, don't tell" when it comes to what the police know that they haven't told him.
The 6th and 14th Amendments make discovery a constitutional right of the defense and no state laws are needed to enforce it. California, like most other states and the feds, have statutes governing discovery.
The truth is that most of these laws are designed to do two things. First, they are aimed helping prosecutors to "discover" the defense case. For most of our history, the 5th Amendment protected the defense against the need to disclose its case to the prosecution. The People have the burden of proving guilt without assistance from the defense, and discovery to the prosecution was recognized as "lightening the burden."
As the Supreme Court escaped the Golden Age of Enlightenment, however, talk began about discovery being "a two way street." Alibi statutes were passed and upheld, requiring the defense to disclose witnesses and what they were going to testify to so the prosecution could be prepared to rebut it at the trial. The rules were then extended to all defense witnesses.
Sounds fair, but it poses a dilemma for defense lawyers and fairness. Your witnesses and other evidence that you gather may provide a defense, but may also contain harmful evidence. Suppose, for e.g., that the DA's case placing your client at the scene of a crime is weak - questionable ID's. You uncover witnesses who put your client at the scene, but say he acted in self-defense. If you give this to the DA, can they use your witness to bolster their case, while attacking the self-defense idea?
This dilemma is a subject for a lecture series and much debate among defense lawyers. Most of the issues have not been resolved, and my present lecture merely touched on some of them.
The second goal of new statutes was to streamline the discovery process by reducing the judge's involvement. Informal discovery between the parties was urged, detailing what is and is not discoverable, defining the parameters, and sanctions for non-compliance.
In California, the law is in Penal Code Section 1054, et. seq.
My strategy is to take advantage of what the law gives by making informal discovery as formal as possible. I prepare detailed informal discovery letters requesting every possible item that they (or any member of the prosecution "team") might have, insist on a certain date for compliance, and file a copy with the court. I follow up the letters with more letters as the case progresses, referring to my previous requests and their degree of diligence in responding so that a record is kept in the official file.
This reinforces the "attitude" of dogged determination that encourages the DA to give up the goods. I provided my audience with several samples of letters I used in past cases.
KEEP A LOG
Some years ago I was appointed to defend in a case involving 10 murders, 7 defendants, thousands of pages of documents, photos, recordings of interviews, many police agencies. I had to keep a log of the reams of discovery because the trial was going to take 8 months to complete. The "table" function of my computer's word processing program generated lists of material which I sorted by number, date, charge, and could retrieve by the name of witness, subject, crime, expert, defendant, etc.
SOME AREAS OF DISCOVERY FROM DA
I gave samples of some of the areas of discovery obtainable from the DA, mostly about the deceased and their prospective witnesses.
They include the seemingly obvious: names, addresses, but sometimes the DA wants to conceal even this most elemental information. Witnesses, especially in gang cases, may be in danger.
I need the information and have a right to it, so I scrupulously follow the law's demand that I keep the information from my client.
I do that in my client's interests. There is no more powerful evidence of guilt than attempting to intimidate opposing witnesses. I don't need that kind of help from my client, his family or friends.
Facts about witnesses you need to get include statements, their gang affiliation, whether they are informers who've been offered or requested inducements to testify. Do they have pending cases, recent arrests, probation or parole or immigration problems that motivate their "cooperation"?
You need to know details about their criminal history. The law entitles you to impeach the believability of a witness by telling a jury about crimes of moral turpitude, those that relate to honesty, but you need to know more.
A deceased's propensity for violence or substance use can affect a self-defense issue. Confronting a known gangster or meth freak can trigger a reasonable reaction of violence.
The holistic approach means that discovery of these facts will lead to investigation, consultation with experts, and then lead to further need for discovery.
INVESTIGATION & DISCOVERY & INVESTIGATION
Crim Law 101 demands viewing the crime scene. That's basic, but even more crucial in homicides. "The 'hood" is where the everything can be found. The street tells you whether the identification of your client in a drive-by was accurate. Word on the street will tell you more about who the supposed victim was, who else hated him and the same about the witnesses who fingered your client.
Was he a snitch? A drug dealer? Did he owe money to a dealer? Was he a liar? Is there a spurned lover who knows the real story?
DISCOVERY FROM POLICE AGENCIES
By now, everyone knows the basics of CSI.
Typically, when a violent crime is called in, uniformed cops show up. They do a preliminary investigation and prepare a report. They find a body, set up a crime scene, call paramedics, and try to identify potential suspects, witnesses.
Eventually the homicide detectives are called. They direct the collection of evidence, measurements, photos, diagrams.
We've all seen the elements of the mystery: the cop tells the detective, "I canvassed the neighbors. Nobody saw or heard anything." "Of course." What can you expect in this part of town? They generate Field Identification (FI) cards or notes. Name, address, "saw nothing."
But what they didn't tell the cops, they might tell your investigator, maybe with assistance from your client's family member who knows the 'hood, speaks the language, and isn't a cop. It may take time as word on the street permeates about the "who" and "why" of it. People may disappear and re-appear weeks or months or even years later, who know the truth and are willing to talk to you.
The homicide cop has his sources, too. Informers and other cops, other agencies who get the word, or at least a version of it. They have gang experts, narc units, vice, specialists in ethnic groups. They will search for patterns, histories - other shootings in the area, motives, retaliation for grudges, enemies. People who die violently have often caused violence to others, many others.
Before they focused on your client, they may have traced other lead that they abandoned when your client came up. Then, typically, they stopped going down these other roads.
That's a defect in the police investigation system. Once they gather enough evidence to convince them that they have PC to arrest, they usually stop looking for others.
But your job may be to keep at it, do their job for them, and show what the law delicately calls, 3rd Party Culpability.
DISCOVERY FROM OTHER SOURCES
Other quasi-independent agencies, not labeled as "police," are always involved and their work needs to be discovered, often by subpoena of records and follow up with face to face interviews.
They include the EMT (or Paramedics), which are often employees of the Fire Department. They come to the scene to aid and transport victims.
I gave the audience an example of a case I had. Two Hispanic men leave a store carrying bags. They are confronted by a man who runs up to them shouting something while pulling a shotgun from his sleeve. As he nears them, the gun goes off, killing one. The police report says that while the victim was being transported to the hospital, he told the detective that it was a robbery. A "dying declaration." That makes it 1st degree murder.
Discovery and investigation led me to interview the EMT worker who told me that the victim understood only Spanish and said that the assailant spoke only English. It was the victim's conclusion that it was a robbery, and the judge dismissed the felony-murder charge, reducing it to manslaughter.
The coroner does an autopsy, determining cause of death and prepares a report with photos of his findings. Interviewing the doctor is essential. Separate speculation from science, eliminate prejudicial information that can disgust a jury.
For a self-defense case, you need to know lots about the deceased. His tattoos, his scars, his size, and the toxicology report of what was in his system: drugs and alcohol level.
A psycho-pharmacologist will interpret the behavioral effects - perception, propensity for violence, irrational behavior that provoked an assault.
And you better see ALL the photos before the jury does.
Often more than one person calls in. What descriptions were given, how to they vary, when were they made.
Many jurisdictions farm out their forensic work and the degree of expertise varies widely. Notes, tests, protocols, c.v.'s can make the difference for your own experts to rebut.
CELL PHONE RECORDS
With cell phones more prevalent, another source of critical data is available. Records can establish not only when a call was made, but also from where it was made. Records include the location of the nearest cell and can buttress an alibi if your client made a call at the time of the crime from a location too far away to put him at the scene.
When the victim arrives, he is attended by nurses, aides, ER docs, and others who generate notes, reports of exams, tests, drugs, procedures, interviews, conclusions.
In one case, my client was charged with murder of his girl friend's infant. She told police she had left the house briefly and returned to find the baby dead and her boyfriend drunk. The cause of death was "Shaken Baby Syndrome."
I dug out hospital records, not just of the night the baby died, but previous visits and those led to other hospitals to which the mother had brought the child, many times since its birth, most long before my client had been around.
I shared the records with the DA on the case, who later dismissed the case, after recognizing that the mother was suffering from (or guilty of) "Munchausen Syndrome By Proxy." She had caused the injuries to her child in order to get attention and assuage her need to fabricate her own victimization.
Every police agency keeps this data about gangs in their area, including photos, monikers, rap sheets. Your client may be the "Mousey" who did it, but there may be 5 other guys who fit that description. Gangsters aren't very original.
UNOFFICIAL SOURCES FOR DISCOVERY
Car manufacturers and dealers can provide sales figures and descriptions of similar vehicles that more closely fit than the one your client was caught in.
Records of the lighting, trees, pavements, graffiti removal, construction can make a difference in identification.
THE TROUBLE WITH CO-DEFENDANTS ... AND THEIR LAWYERS
Among the hundreds of decisions you have to make are the many that arise when there are other defendants. Do you want to share discovery and or investigation? Present a joint defense?
You are going to consider many theories. Is there one shooter and one accessory? What about the "conspiracy" law, which makes any participant equally guilty? Do you want a joint trial or a severance. Which defendant made statements implicating the others? Are any going to testify?
I know of one case in which there were 4 defendants accused in a drive by killing. There had been 2 cars and shots came from only one of them. Each lawyer tried to prove that his client was in the other car, allowing the DA to discount all of the defenses --- "apparently the shots came from an empty car!" All 4 were convicted.
You have to identify which defendant is likely to "roll over" on the others, accept a deal to testify. That means more discovery and investigation.
THE TROUBLE WITH CLIENTS
The question I am most often asked by laymen is "How can you defend someone if they confess their guilt to you"? The fact is that most clients confess to everyone BUT their lawyer. They think you won't fight for them if they confess to you.
Instead, they talk to the police, to their friends, their jail mates, their co-defendants. They whisper on buses, over monitored phones, in the presence of bailiffs, in lock-ups.
Given any chance to make incriminating statements they will do it, even if they really are not guilty. Even the innocent feels compelled to "help" his case by setting up a false alibi - in a letter or phone call to his wife or homie from jail.
The worst feeling is to be suddenly confronted in the middle of trial with a tape of your client's latest statement in conversation during lunch.
You must make a motion to keep him away from co-defendants at all times. You need to make continuing discovery demands for any statements.
Without thorough discovery you can't make one of your most critical decisions: whether your client can testify. If you can, it may be a great advantage - though risky. A client with a good family, good character witnesses, employers, ministers, can win a case.
But you need to prepare: does he have any blemishes that can destroy his credibility?
FINALLY, TWO RULES TO REMEMBER:
ONE: HFTB BUT PFTB: Hope For The Best BUT Prepare For The Worst.
TWO: Good old Borenstein's Law. If you have forgetten, it is the Universal Law that seeks to explain many common phenomena, including why our clients cause trouble.
In essence, it is this: EXPECT YOUR CLIENT TO ACT AGAINST HIS BEST INTERESTS.
The reasons they do so is explained elsewhere in great detail in my post titled Intro to Borenstein's Law. Suffice to say that they wouldn't be your client if it wasn't true.
Sunday, August 13, 2006
I wrote most of what follows in the Winter of 1974 while Bea and I were in Paris. I had left the L.A. Public Defender’s office after four years of work there to travel around the world for a year. We lived in a house outside Paris for several months and during the many hours of winter rest between trips to Normandy, Berlin, Brussels and other dreamed-of places, I began to write an account of the James Douglas Wayne case, which I had completed the year before. The more I wrote, the more I missed the office. Eventually, we returned in July, 1975 and I resumed my PD career.
I went to see Charley Boags, answering the message he left in my box with the certain knowledge that it was going to mean new work for me. That was Charley’s job as Assistant to the Chief of Trials. That and complaining about a deputy’s failure to fill out some damn form. When I walked into his office, he was standing over his jumbled desk in shirt sleeves.
“Congratulations, Bor’nstein.” His face sparkled with a grin. His only joy was giving bad news cases and watching the reactions. “You’re elected to do the first 1026a trial downtown.”
“You’re wrong again, Charley. Matheisson just had one. Don’t you listen to the lunchroom talk?”
It was probably Charley who had assigned the case to Matheisson, but I was only mildly annoyed that he had not remembered. It was well-known that Charley usually had his head up his ass.
“Oh, yeah. How’d he do?”
“It was a loser.”
He chuckled. “Well, this one is, too.”
He handed me the white slip and pointed to a file on the desk. “The guy spent seven years at Atascadero for arson on an NGI. Now he wants out.”
“Nobody gets out on arson," I said, while Charley simply grinned at me. “What do the doctors say?”
He picked up the file. “The reports are in here, but — let’s see.”
Assigning a case without knowing what it was about was Charley’s forte. I just picked up the file. “Never mind. I’ll read ‘em. Just don’t forget to set me light.”
“I can’t give you any fewer cases, Bor’nstein. We are four lawyers short and —”
“Bye, Charley.” I began to walk out with my new case.
“Don’t forget to turn in the white slip,” he said as I walked down the hall to my office.
The more I read of the file the less I liked.
In February 1967, James Wayne had an argument with a motel manager in South Central L.A. He’d left the motel and returned with a wine bottle filled with gasoline. He stuffed a rag into the bottle. He lit the rag and tossed the bottle on to the flat gravel roof of the motel. The manager took after him and fired a couple of shots at him. Police were called, and Wayne was arrested. The damage to the roof was minimal.
The defendant was charged with three felony counts: arson, possession of flammable materials with intent to commit arson, and assault with intent to commit murder. He was assigned a deputy public defender and had a preliminary hearing. The transcript was in the file. He had been bound over to superior court on the testimony of the manager, an eye-witness, and the LAFD arson investigator. A different deputy PD had been assigned the case in superior court. It was Stu Rappaport, who was now my boss, Chief of Trials.
I read Stu’s notes of his interview with Wayne, apparently written as Wayne had talked to him:
“James Douglas Wayne, dob March 3, 1920, Houston Texas. 47 yrs, MN, no perm.address. Occup: singer-songwriter - has sold millions of records. NO PRIOR RECORD.There were two psychiatric reports folded into the ‘67 transcript, each three typewritten pages in the typical form. Their conclusions agreed. Paranoid schizophrenic, delusions of grandeur. Legally insane under McNaughton.
“447a - arson. Dept. 107.
“I set the fire - went to see BB King to play a song for him. Had been witness to murder - Mafia was after me. Shot at me 3 times before. Motel clerk yelled at me - chased me out - I knew he was one of them. Police didn’t believe me - had to get them to come. I threw the bottle. Didn’t want to hurt.
The old white slip was also in the transcript. “4/4/67: D.107: Submitted on Transcript. Ct. finds def’t NGI. Committed to Dept of Mental Hygiene. Atascadero.”
There was a manila envelope in the file. It contained the psychiatric summary from Atascadero.
Wayne had spent four years in the hospital, shown improvement and was “paroled” to a halfway house in Long Beach. He was there for two years, with occasional lapses into violence and paranoid episodes. Finally, an incident of violence where he had attacked another resident with a two-by-four forced the administration of the halfway house to ask that he be returned to Atascadero. Wayne then petitioned the court for release.
The last page of the Atascadero report contained the “Conclusions of Staff”:
“Patient continues to show pattern of paranoid schizophrenia and delusions of grandeur. He has history of alcoholism and minimum controls when under the influence. Evidence exists of organic brain damage as cause of illness. Patient was committed on arson charge and has had continued episodes of violent behavior. The staff is of the opinion that the patient is still a potential danger to the community and his release at this time would not be in the best interests of the patient or the community.The report was signed by the Director, Atascadero State Mental Hospital.
“Recommended: That patient’s petition be denied and his commitment be continued for an indefinite period.”
Wayne’s handwritten petition had been sent to Department 100 in L.A., the court of jurisdiction. The judge had ordered the defendant brought from the hospital to the county jail, re-appointed the public defender’s office and two doctors to examine Wayne.
Both new psychiatric reports were in the file. The first was by Dr. Abé, who had also been appointed back in ‘67. His report was two pages, his conclusion the same as seven years earlier: “... still insane and dangerous.”
The second report was by Dr. Selwyn Rose. It was six pages long, and though the conclusion concurred with all the other doctors’ opinions, the text was more thoughtful. He had written:
“The question the court asks is whether the defendant is still insane and is a danger to his own safety and that of others. This is a two part question which requires two answers. Yes, he is still insane. The delusional system has remained constant throughout. The second part is more difficult. He has committed violent acts in the past. From what we can gather from the evidence these were committed while under the influence of intoxicants. When sober, he is mild, even meek. A third question must be asked: Is confinement in a state mental hospital desirable or necessary? Control is essential and this would certainly be achieved by return to the hospital’s closed setting, but the interests of society and the defendant might be better served through a program of parole, with strict supervision of his conduct, either in a half-way house or on an outpatient basis.”The lunch table was full when I walked in with my sandwich bag. Mike Denby had finished eating and was sitting and twisting his thinning hair in his fingers. I tapped him on the shoulder and he gave up his seat according to the lunchroom custom.
The conversation was as it always was: politics, sports, women (the women deputies rarely ate in the lunchroom; it was like a cheap men’s club, except for occasional appearances by Nancy Cunningham during the college basketball season when the Cal/UCLA rivalry was in play). There were the usual war stories by the usual guys who had to rub their egos by impressing everyone with their victories. There was an occasional “classic” story of an event in a courtroom that was making the rounds that day. (“Did you hear what happened in 124 today? Judge Keene jumped all over Adashek’s ass. It was great!”)
“Stu,” I said, across the table. “I got one of your old clients today.”
Stu Rappaport, at 37 was the youngest ever to have been made Chief of Central Superior Court Trials in the Public Defender’s office. He was very bright, very well-liked by both the administration and the troops. He had an impish sense of humor, taking pride in assigning Al Simon and Irwin Garfunkel to the same court just to say his deputies in Department 113 were “Simon and Garfunkel.” He had played freshman football for Michigan, was balding and ate smelly cheese sandwiches on bagels for lunch.
Yeah. Who?” His tongue nabbed a drop of camembert from his lip corner.
“James Douglas Wayne, but I wouldn’t expect you to remember. It was in ‘67.”
“What’d I do for — or to him?”
You got him an NGI —”
“Aha. One of my many winners.”
“— And seven years at Atascadero.” That brought laughter from the table.
"Oh. Well, it still goes down in the stats as a winner. That’s the important thing.” Stu slapped his palm on the table to emphasize his self-mocking joke. The others in the room, as always, laughed when he joked.
“What was his name?” he asked me.
“Wayne, James Douglas.”
“It does sound familiar. What was it?”
“Arson. Of a motel in Watts.”
Stu chewed his bagel, thinking for a short time. “Oh, yes. I do remember. He threw a molotov cocktail on the roof. He’d gone to see Elvis Presley —”
“— Yeah. He was a big rock star and the Mafia was after him for some reason. Some crazy, complex story like that. It made no sense.”
“That’s the guy. I got it on a 1026a hearing.”
Stu took another bite out of his cheese sandwich. “He was really nuts. But seven years for that crime is ridiculous. There wasn’t even any damage, as I recall.”
“That’s right, but it is arson and there’s no way the Department of Mental Hygiene will take a chance.”
“They recommend against, of course?”
“Yeah. All the shrinks are unanimous. Judge Kolts appointed Abé and Selwyn Rose and they say he is still crazy and a danger.”
“What about — what’s his name?” Bardsley asked, ripping a bag of Cheetos.
“Wayne. I haven’t talked to him yet.”
“What’s the standard on a 1026a?” Someone with a hot dog asked.
“Hold it. I just got the case today.”
“He’s entitled to a jury trial, isn’t he?” Larry Rivetz wanted to know.
“Yeah,” Herb Barish said. “Stan Matheisson just went through one. Have you talked to him?”
I was about to ask Stu where Matheisson was, but someone with a sports page mentioned the Detroit Tigers, and Rappaport was lost for the rest of the lunch hour.
The Old County Jail was on the 10th floor of the Hall of Justice, a dreary greystone building across from the Criminal Courts Building where the courts, DA’s, and PD’s are now housed.
When I had begun as a clerk in the office, we were all in the Hall of Justice, but crime had outgrown the old building. The Hall had elevator operators, real marble, and jail on the top floors. Now, the Sheriff had the whole building. Most inmates were now housed in the New County Jail, a mile away. This “progress” had resulted in countless delays caused by the Sheriff’s inability to get inmates to courts in time. The Old County was still used to house a few categories of prisoners: those in “soft tanks” --- homosexuals, informants, a few mental patients.
I sat at the counter of the attorney interview room and watched James Wayne walk toward it. He was a big man, over 6 feet and wide. He wore a green business suit of a cut long out of style. Under it he had a grey shirt buttoned to the collar and no tie. He walked slowly in a slouch, his arms hanging loosely. He had kinky black hair sprinkled with grey. His brown face was broad and wore a sad, resigned expression. His eyes were downcast. These features marked him as mentally ill. It was the look of a man who was either drugged or had spent a long time in an institution.
I asked if his name was James Wayne. He nodded cautiously and I gestured him into the seat which was separated from mine by a chest high partition. I introduced myself, trying to sound calm and confident. “I’ve been assigned to represent you in this case and there are a few things I have to ask before we talk about the facts.”
“Yessir,” he said reflexively. A black Texas drawl was hinted.
I took the statistical info from him. He answered my questions in the same quiet submissive voice, gave the same answers he had given to Stu Rappaport seven years ago.
“I’m a songwriter,” he now said in a livelier voice.
He began to ramble about being a rock star as he must have done when Rappaport asked him the same question: “... I had million selling records for Bobby Bland and BB King, ‘Tend to Your Business,’ and I sang on my own record that sold a million—”
“That’s fine, Mr. Wayne,” I said, cutting into the speech. “Do you have any income?” I asked the mandatory question; public defenders were supposed to represent only indigent clients.
“Sir, I have made millions of dollars in my time from my songs and personal appearances. The record company owes me a million dollars. But they cheated me out of my money, sir. They surely did, that’s right, and—”
“Okay. But aside from your record income, do you have any?”
“Well sir, they cheated me out of it.”
“I know, but do you—”
“They owe it to me sir, and I want to get it. Sir I know you can help me.”
“Alright, Mr. Wayne. I will help you if I can. But you have to answer my questions. Okay?”
“Now, do you have any income other than from records?”
“Yes sir. I have a disability check each month from the Veterans’.”
“Oh. You were in the service.”
“Yes sir. I had commando training. I learned judo, jujitsu, karate. I could kill a man with my hands, but I don’t want to hurt anybody. They just don’t ever let me be, is all.”
"Have you ever been arrested?”
“No sir. I never did anything wrong. I have tried to be a good Christian. I never got in any trouble.”
“That’s fine, But your rap sheet shows a couple of arrests for drunk: one in Texas in ‘47 and another in LA in ‘62.”
"No sir. That’s not true. I do not drink. I try to be a good Christian. I believe in God and—”
I flipped through the file. “It also shows an arrest for burglary in 1950.”
“No sir. I never did that.”
“Well, it says here you served nine months in jail.”
“Yes sir. But I did not do it. It was some others who was messing with me. They did it. They broke up a gumball machine and stole the money and when I told the owner he called the police on me. I never did it. It was those guys who was messing with me.”
I continued to read as he spoke and looked up when he finished. “But you pled guilty or were found guilty, Mr. Wayne.”
“Yes, sir that’s true. But it was only because those guys was out to get me and the only thing I could do was get protection. I told the judge I wanted to go to jail so I could be protected. But I never hurt nobody unless they messed with me.”
“Great,” I said under my breath. “Okay now Mr., uh, James — can I call you James?”
“Yes sir please. It’s okay. You can call me James, JD, or Jimmy. I use all those names on records.” The thought lit up his face into a warm smile.
“Good. Now, I want to know about this arson thing. Did you throw the molotov cocktail on the roof?”
“Yes sir. I did, but I didn’t want to hurt no one. I only wanted the police to come so they would stop messing with me.”
“Who was messing with you this time?”
“The guys were following me with cars. They had shot at me two times already and the police wouldn’t help me.”
“Why did they shoot at you?”
“Because I was a witness when they killed Irene and I was helping the police. I was working with Sergeant King of homicide and they knew it and they hired guys to kill me. I told them to leave me alone, that I had a duty as a Christian to help.”
I had stopped writing. It was all coming out in a jumbled obsessive manner and I just sat and listened. “Why were you at that motel?”
“I was supposed to meet BB King to play him some of my new songs. He was going to cut them on his new record. But the clerk was sassing me. He told me to get out. I wasn’t making any trouble. He wouldn’t let me see BB King and I knew he was there.”
“He told you BB King wasn’t there?”
“That’s right and I knew he was ‘cause I had talked to him when he told me to come and sing my songs. So when he told me he wasn’t there, I knew he was a Mafia.”
“Who? BB King?”
“No sir,” he said seriously, upset that he was not getting me to understand. “The clerk. He picked up the telephone and I knew he was calling the Mafia because I had seen the black car there going around the block and I knew then that he was one of them.”
“What black car?”
“The black car, a big Cadillac. It was the one that the Mafia guys were in who shot at me two times.”
“Oh, I see. Go on.”
“So I ran out and got me a little bottle.” He put his thumb and forefinger an inch apart.
“It was a wine bottle.”
“Right and so—”
“Did you drink the wine?”
“No sir. I don’t drink at all.”
“Not even a bottle that small?” I imitated his gesture with my fingers.
“No sir,” he said emphatically, not catching my sarcasm.
“Okay. So then you got some gasoline.”
“Yes sir. Just a pint and a rag and I threw it.”
“You lit it?”
“No sir, I didn’t light it.”
“The fire department arson man said there was a fire.”
“Yes sir. It must have been something on the roof — some metal, or something.”
I thought that was not likely, and made a mental note to see if I could check on whether that might happen. I asked: “What happened next?”
“I was arrested.”
“Didn’t the clerk shoot at you?”
He shrugged and smiled. It was a very warm smile. I noticed a scar over his broad nose where the skin over the bridge had been gouged out. Another scar, with suture marks, ran from the corner of his nose to his lip. He had several black freckles on his nose and cheeks that gave his smile a boyish charm.
“Yes sir, but that didn’t worry me. I had commando in the army and I could dodge the bullets easy.”
I had to smile back. He had said it in such an assured way that I almost believed him.
“What was it like in the hospital?” I asked, really wanting to know.
“They promised me I could get out soon if I did like they wanted. But they had me doped up and I was sick from it.”
“You mean your medication? Thorazine?”
“Yeah. I was dizzy and I couldn’t think right. But they said if I took it I would be out soon.”
“Did you have any trouble there?”
“No sir. I never make any trouble unless someone messes with me.”
“I know. Did anyone mess with you there?”
“No sir. I kept to myself and played my music on —”
“How about at the half-way house, Harbor View?”
“I never mess with nobody. I got along good. I was a counselor and I had charge of the whole floor there and you can ask the doctors if I wasn’t a counselor. I even got a letter from President Nixon thanking me for—”
“Yes sir, thanking me for helping him get elected again ‘cause I done so much work getting people to vote for him. I have a letter from him in my property to prove it.”
I sighed and shook my head in exasperation. I had learned that mentally ill people often try so hard to impress their interviewer that they can appear normal for a while. Then, under continued pressure, the paranoia and the delusions begin to seep through, often in the same rational tones as the rest of the conversation. Eventually, they lose control and all grip on reality.
I told him that I would be seeing him on the next court date. “Is there anyone on the outside I can talk to for you? Someone who might visit you or appear in court with you?”
“Yes sir. There’s Miss Helene Duncan.”
“Is she related?”
“No sir, but I’ve been knowing her for many years, and her mother.”
“Do you know her phone number?”
He fumbled with some papers in a ragged leather wallet. He gave me the number.
“I have a letter I want to give the judge, too.”
“Why don’t you let me do all the talking to the judge. I’m your lawyer now from here on and I can take care of it. You trust me, don’t you?”
“Yes sir. I know you will help me, ‘cause I have to get out of here.”
“I know, James. But you have to be patient. I’ll do my best, but these things take time.”
“Yes sir, I know. It’s been seven years now.” He smiled.
I had set the afternoon for bail-out client interviews in my office, but when the one-thirty and the two-thirty failed to show, I decided to skip the three-thirty and go to the County Law Library for some research on the Wayne case, where I ran into Stan Mathiessen.
In the week since my interview with my client, the file had remained in a corner of my desk untouched but not ignored. I had requested subpoenas for the Atascadero and Harbor View records for the next court date which was three weeks away. Until then there was nothing much I could do except busy myself with my twenty-five other cases. The Wayne case was in limbo, but not out of my mind.
When I had first been assigned the case, it was like the “Good news, bad news” joke. First the bad news: yet another case; then the good news: it involves a new legal field, not the usual burglary or drug sale; bad news: it was a loser; good news: no one in the office has ever won this type of case within memory.
The interview with Wayne had not altered my feelings about the case. It was still a hopeless cause. Now, though, the fact that James Douglas Wayne, Case number A-105601, was a human being, and a likeable one at that, lent touches of sadness and frustration to my feelings. They are emotions I had to get used to in my job, otherwise I would be torn to pieces, and I would do a lousy job.
After all was said and done, the Wayne case was still just another case. At this point.
Stanley Matheisson looked like your high school social studies teacher. He was so average in appearance that he is hard to describe. He was of an older generation and stuck there. Stan was from solid Midwestern Presbyterian stock. He lived now in Pasadena among folks of his own ilk: conservative in politics and life-style. On weekends he played catch with his sons, mowed the lawn and drove his wife to the market in their station wagon. During the work week he defended murderers.
Stan, in his scholarly way, had confirmed my own research about the legal issues involved. When a defendant was found NGI, he was not automatically freed. The law allowed a judge to find that he was not only insane at the time of the crime, but also now — and to commit him to the loony bin until he recovered.
The Franklin case decided that in light of a US Supreme Court decision (Jackson v. Indiana), that due process demanded a procedure and standard for deciding how long someone could be held.
Stan had tried the first L.A. case since Franklin. He’d convinced the judge that the standard should be not only whether a person was still legally insane (that is, whether he understood the difference between right and wrong, and the nature and consequences of his acts – the legal definition called the “M’Naughton Rule,” established a few hundred years ago and still the law) but also whether the person committed was “a danger to himself AND to others,” a big distinction.
Stan also told me how much “fun” the trial could be. “It’s not like our usual criminal trials, see? It’s like a civil trial — your client is the plaintiff. So you get to sit closest to the jury, and you go first, you have to prove your case — not by a reasonable doubt, but by a preponderance of evidence — and the best thing (Stan’s eyes twinkling) — the verdict is 9-3, not unanimous.”
“How’d you do in your case?”
“Lost. But it was fun.”
In my office, I leaned forward, dropping my foot from the desk drawer on which it had been propped, and squashed my cigarette butt in the ash tray, spilling some ashes onto the Wayne file.
I had spent the afternoon reading the detailed Atascadero medical record and found only information confirming my opinion that the case was a loser. Worse, I was now convinced that James Wayne was hopelessly insane, dangerous, and belonged in an institution.
When he had been committed, seven years before, he had been interviewed by the staff. All had diagnosed his illness as Schizophrenia, Paranoid Type, highlighted by delusions of grandeur. He had been treated with daily doses of thorazine, a tranquilizing drug, and had shown slow improvement over the next few years. There had been no incidents of misbehavior and he had accepted job counseling.
He admitted his fault in the crime that had caused his commitment, recognizing its cause as a delusion. Finally, he had given up his delusion of having been a millionaire songwriter. Eventually, he had improved so much that the court had been asked, and agreed, to allow his “parole” to a less-structured institution, a half-way house.
There followed a summary of notes made from periodic reports by the psychiatric social worker at the Harbor View House in Long Beach. At first, the notes were encouraging. He continued his gradual improvement, participating in alcohol abuse programs, which was noteworthy because, before that, he had steadfastly denied any alcoholism history, another sign of his mental illness and “nonamenability” to treatment.
For almost two years his behavior was exemplary. The entry of 11-15-72 noted preparation for “petition to court for total release.” His medication was reduced. Then the dam burst.
Two incidents in quick succession doomed him. In December, Wayne received forty stitches in his face after being knifed in a “barroom brawl over a woman.” He was restricted to the House, his weekend privileges suspended. A month later, he was seen hammering on the door of another resident with a two-by-four, threatening to kill the man. It took two attendants to restrain Wayne.
The last entry by the social worker was like a sentence: “Doctor Stein, the Director in charge has requested that the patient be placed elsewhere, as the danger of violence to other residents from the patient remains high and Harbor View is not equipped to provide the necessary security. It is therefore my recommendation that the patient be returned to Atascadero for an indefinite period.”
Back at Atascadero, Wayne was re-interviewed. All of the old delusions resurfaced along with some new paranoic outbursts. He could get President Nixon to vouch for him; his scraps were all caused by others who “messed” with him; he had not touched a drop of alcohol.
The diagnosis was the same as it had been when he had first been committed, this time with a depressing note added. One staff member gave the opinion that the “disease is organic; brain damage caused by alcoholism and, therefore, incurable.” The staff conclusion was that whether organic or functionally based, the prognosis for improvement was dim. The recommendation was “confinement in the institution for an indefinite period.”
That word again: “indefinite.” It chilled me whenever I thought of the sentence of indefinite confinement. If a person was given a sentence of one year, or ten, or even life, at least he would know. But “indefinite.”
Who determined the length of incarceration? By what standard? It rankled my sense of fairness. What checks were there on the doctors who decided that a man was so ill that he must be confined for an “indefinite” period?
Surely, the sick person had nothing to say in the matter of his fate. He was insane, declared so by a court of law and by experienced medical doctors. The answer in this case was obvious: me. I was the only one in the world who could argue rationally for James Wayne. But I could not fight the facts. James Wayne was insane. Of that I had no doubt.
There was a second part to the equation. Danger to himself or to others. Even here there could be little doubt. His outbursts of violence while at Harbor View had caused injury to himself in one instance, and in the second, injury to another person had apparently been narrowly averted.
What argument could I make in his behalf? It was my job to construct one.
The only chance seemed to be to plead for parole a second time, to a new half-way house. I could point to the long period of time in which he had showed improvement, was peaceful, the almost two years at Harbor View without disturbance. The incidents occurred only when his medication had been reduced and when he resumed drinking. If he was continued on medication, he could be re-placed on parole. There was a glimmer of hope in one of the recent doctor’s reports.
I shuffled through the file. Dr. Rose’s report: “... the interests of society and the defendant might be better served through a program of parole, with strict supervision of his conduct, either in a half-way house or on an outpatient basis.” Some support for my argument, at least, though certainly equivocal.
But there was always the DA to consider. Any DA would argue that there was no way to force a person to take medication, no assurance of protection of the public from future acts of violence. I knew this DA. She was a self-righteous moralist, would add the argument that all mentally ill alcoholics are dangerous and must be confined. Her argument would have credence in this case. That damn barroom brawl and pounding on the door, threatening the other “resident.”
The ultimate question would be whether the judge was willing to give James Wayne the benefit of the little doubt that remained of his ability to live in the world of sane men.
I would also have to convince James that his only hope lay in promising to take the dreaded drugs, and swearing off the booze that he now denied ever abusing. Convince, coax, threaten, cajole. Any way that is effective. My job was to persuade my clients to do what is in their best interests to do, even against their poor judgment. No one should live with the hopelessness of an “indefinite” sentence.
Public defendering meant trying to speak for your client. But what if you believe your client is nuts, and self-destructive, and maybe dangerous to others?
The compromise is to do what you perceive to be in your client’s best interests – do the possible. But doesn’t that make me just like those self-righteous doctors and judges and DA’s?
It was another Friday afternoon. My office was getting to look like my room when I was a teenager. Instead of socks and underwear, there were files, memos, mail, reports, notes, legal pads, law books strewn all over my desk, floor and cabinet where they had accumulated during the week. It was now clean-up time.
When everything else was neatly in its place, there it was, like an open sore, James Douglas Wayne, the file sitting there daring me to do something. I had avoided making any decision about it --- needed to get more information, the time to run it by the DA and judge wasn't ripe, other cases --- anything to avoid the final moment, facing the inevitable.
On the outside of the file was a phone number I had scribbled — when? Oh, James had given me the number in the lock-up of a lady he wanted me to call. I'd forgotten all about it.
I dialed it.
The voice at the other end of the crackling wire was small and Black.
“Is Mrs. Duncan there, please?” Calling to that part of the county was like calling to a foreign country.
“Whose calling?” The familiar suspicion of a White voice.
“I’m calling for Jimmy Wayne.” Trying not to sound like a bill collector or a cop.
“Oh.” Voice relieved. ”You want my mother. Just a minute.”
The phone plunked down, footsteps receding.
The shout, hollow and further away.
“Ma, its for you! Some man calling about Mr. Wayne.”
“Who’s there?” The same kind of voice, but stronger, older, maybe a little deaf.
"Mrs. Helene Duncan? I’m a lawyer for Jimmy Wayne. He asked me to call you, said you knew him.”
“Sure. I know James. I knew hm. Ain’t seen him though for a long time.”
“He’s been in a hospital. He had a — sort of breakdown.”
My voice involuntarily began to slur into my version of a black drawl. “He wants to get out and I’m trying to help him.”
“That’s real nice. He’s a good man. I hope he makes it.”
She sounded like she wanted to end the conversation. I decided to get right to the point.
“How well did you know him? I mean, did you ever know him to be violent, or act crazy?”
A laugh, free and sweet. “James, he was always actin’ a little crazy. He used to come around with all kinds of big talking plans. He never meant any harm by them. They were just dreams, a poor man’s dreams. He drank some, but not as bad as a lot I know.”
Maybe some help, someone thought him a harmless drunk.
“One more thing, ma’am. Did you ever hear any of his music?”
“Oh, my yes. He would sing his songs all the time for my kids. He always brought his records for them to hear.”
For a moment it did not register.
Delivered so offhand, as if a common thing and not the key to a man’s life.
I thought she had said: “he brought records” rather than “his records.”
“What kind of records?”
“Oh, I don’t rightly recall. Upbeat stuff. He called them demos. It was a long, long time ago, you know. Both my girls are married now with kids of their own.”
“Well, if it became necessary, do you think you would be willing to come to court, Mrs. Duncan, just so James would see a friendly face in there?”
“Oh, sure. But I got bad legs. I can’t take the bus.”
“We don’t have to worry about that. It won’t be right away, anyway.”
So, I thought, that was James Wayne in a nutshell. Poor man’s dreams and some booze to blur the dreams eventually into a kind of reality. He had cut some demo records, maybe at one time even had a record company interested. The kind of stuff a poor man can build a life of dreams on. Burn away the hard edges of reality with some booze and let the mind go. Loneliness and fear do the rest. Wishing can make it so. Desperately needing it can make it real and hard, a “delusion of grandeur.”
I told James I had spoken to Mrs. Duncan and she would come to court when asked.
He smiled and said with easy confidence: “Sure. I told you and there’s lots of people who I could get to show —”
“Is there anyone who knows about your music?”
“Mr. Eddie Ray. He could tell you all about it. He is at MGM records. He heard all my songs."
I wrote the name on my folder. “Are you sure he is still there? Its been seven years since—”
His smile broadened. “I wrote to him from Harbor View and I went to see him one weekend when they was lettin’ me go out. But he was away at the time. There’s lots of others.”
He named several rock and blues stars whose names I had heard.
“Let’s stick with Mr. Ray first.” I suggested.
The information operator gave me two numbers for MGM records on Hollywood Boulevard. I dialed the one for Administrative Offices and met the disinterested nasality of a switchboard girl.
“I would like to speak to Mr. Eddie Ray.” I pronounced the name very clearly, expecting no such person to exist.
“One moment, ple-use.”
I was on hold, the familiar frustrating limbo.
Another voice, warmer, intelligent, feminine. “Mr. Ray’s office.”
My God, there is such a person. “I-I’d like — may I speak to Mr. Ray?”
“Who shall I say is calling?”
I gave her my name. “I’m representing James Wayne,” I said, then regretted it.
“I will have to see if he is — “
”No, no, I am not an agent or anything like that. This is a personal matter. I am an attorney in the Public Defender’s office.”
“One moment,” the voice still dubious.
“Hello. This is Eddie Ray.”
The voice came on almost instantly, a gracious, warm, Black-mellow drawl.
“You’re calling for James. How is he? I haven’t heard from him in years. Where’s he been?”
“Mostly in deep trouble,” I said, noticing a growing cramp in my stomach. “He’s been in a mental hospital for seven years.”
“Really,” the voice said with more regret than surprise. “I’ve been wondering because he just kind of dropped out of sight.”
“Well, I’m trying to help him get out and one of the problems is that he says he had written some music and they don’t believe him.”
“Oh, sure. Jimmy was one of the big names in the early days of R & B. He had a couple of big disks, really big. Million sellers, probably, or close to it.”
“How long ago?” My voice sounded urgent.
Oh, this was in the early Fifties, I would say. But he had a lot of other songs since then.”
"Do you remember the names of his hits? He mentioned one.” I scrambled through my notes with shaking hands. ‘Tend to Your Business’?”
“Yeah, that was one of them and the other, let’s see, yeah, 'Junko Partner.' That was very big.”
“You know,” I said, “This is incredible. He has been telling everyone, doctors, lawyers, that he was a successful songwriter and no one believed him. He’s been claiming it for seven years and no one listened. He is a little, you know, vague.”
He chuckled. “Yes, I know what you mean. He was always that way, even when I knew him. When he came on hard times I got him a job pressing records, but he didn’t want any part of it. He only wanted to write, sing and play his guitar.”
I picked up the file after I hung up.
The Atascadero report had an entry I wanted to re-read. I found it, deep into the thick file.
After almost three years of thorazine, the patient made a great leap forward: he no longer maintained that he had been a singer and songwriter. He had improved.
Later, I spoke to the social worker from the half-way house. She told me the details of the “violent” incident that had triggered his return to Atascadero. Wayne had beaten the door of another inmate with a stick.
The other inmate was a known racist, who had been needling Wayne all the time he was there. In her mind, James’ action was “situational,” not really unjustified.
I asked her about Jimmy’s claim about Nixon.
She told me that in the 1972 election year, Jimmy had worked registering voters, for which he had been paid. The fact that he was, at the time, declared legally insane, apparently didn’t invalidate the voters he had signed up.
I checked Wayne’s “property,” the papers that he had brought with him from Atascadero. I found an envelope with a large greeting card inside — from the office of The President Of The United States, thanking the recipient for participation in the election campaign. The envelope was addressed to:
Atascadero State Mental Hospital
There was a nice picture of Dick with Pat and the kids.
Then I made a phone call that really shook me up and forced me to race down the hall.
Rapaport was still in his office, which I knew he would be even though it was 5:30 and the building already had the hollow sound of emptiness. He was alone now, not surrounded by his usual retinue of young lawyers to whom he was confidante, friend, good audience for woes and tales of exaggerated victory.
He was cleaning his desk of the week’s accumulation. “Friday,” he explained.
“I have the same system. Listen, I’ve got a weird story to tell you about your former client, James Wayne.”
His eyes narrowed behind his contact lenses, then widened. “Oh, Wayne, the screwball arsonist.”
I reviewed the story up to the phone call to Ray. He continued his housekeeping, standing over his desk. “Here’s the kicker. It’s all been a mistake. He really is a songwriter and a successful one.”
It didn’t register at once. Then, Rappaport paused. “What do you mean?”
“His story, that he was a big rock singer and songwriter. It was true.”
He stared at me.
“He gave me the number of a some guy he said was in the record business who would know him. I was all set to lay down and go for parole, and even that seemed like a long shot. But my conscience got to me. There is something about the guy that makes me feel for him — more than pity. I don’t know, he has a kind of charm. But I couldn’t say why. Now I know what it is.”
Stu sat down. He sensed that whatever I was saying was important to me and he knew I would get to it in time. He knew I was not a time waster or a bullshit artist. “What is it?”
“He’s been telling the truth all along. He was a successful singer and songwriter.” I repeated my conversation with Eddie Ray.
Stu began to shake his head.
“There’s more. After I hung up with him I dictated an investigation request to get the names of songs he has written. Then I decided to check out the rest of his — delusions.”
I paused and felt Stu’s eyes drilling into my head. “He’s been claiming he was a witness to a murder and was working with the cops on the case. He said the murderer had hired some guys in a black car to kill him because of it. Its all in his interviews as an example of his delusions of grandeur and paranoia. Standard screwball claim, like being a secret agent for the FBI.”
Stu stared intently. “Not true. No. Don’t tell me.”
“He wrote the judge one of those jailhouse letters which I intercepted. Rambling and crazy, you know the kind. He mentioned the name of a Sargeant King as the cop on the case and the victim’s name as Irene. That’s all I had. So I took a guess and called LAPD 77th detectives and asked for Sargeant King. And he picked up the phone.”
“Just like that?” Stu laughed, but it was a bit forced.
"Just like that. Seven years later and he is still at his desk. I told him I was a PD and represented a guy who claimed he had been a witness in a homicide case in ‘67 and the victim’s name was Irene. I gave him Wayne’s name. He said: ‘I remember the case. The girl was found strangled in the morning. Wayne had lived next door and claimed to see a man leave her apartment around the time of her death. We thought we had a prime suspect in her boyfriend, but Wayne refused to ID him.”
“Oh, no,” Stu said, throwing his head back into the cushion of his high backed chair.
“And King said, ‘We were pretty pissed because we thought we had the right guy. After a while, Wayne started acting crazy and I started to look at him a little more closely. But he passed his polygraph.'”
Stu gasped. “How did he remember all this stuff from so long ago?”
“I asked him. He said it was still unsolved and he goes over all those reports every so often to keep them fresh in his mind because he once questioned and released a guy he had a vague memory about, then remembered later that he was an eyeball witness they had been hunting for years.”
Stu said simply, “Wow!”
“I didn’t want to tell him any more because if he found out where Wayne’s been for the last seven years, he might start looking at him a little more closely again.”
Stu was silent a long time, then he said: “There was no way to know all that. He seemed so crazy when I had him. His crime was senseless and the way he talks—”
“I know. I was sure, too. It was only luck that I checked any of it. Just the pattern of the way it happened, my mood, the way he struck me. In a hundred other cases, I would let it go.”
“Jesus, I feel shitty,” Rappaport said.
“Don’t. At one point the doctors even had him convinced it was all a delusion. They pointed to it as a sign of his improvement.”
“That doesn’t make me feel less guilty. Shit.”
“The irony is that he really is crazy, just not for the reasons everybody thought.”
“So was Van Gogh and Ezra Pound.”
One day I returned from court and bumped into Hal Vereb, the investigator assigned to the Wayne case.
“I left my report in your mail slot,” he said. “Along with an envelope from BMI. He is not registered with ASCAP, the other group that protects composer rights. Broadcast Music, Inc. The composer signs up and they monitor all air play and collect royalties for him. There’s a guy there, Sanders, who was very helpful. I told him the story. He gave me an envelope with a computer printout of the songs Wayne registered with them.”
I nodded and thanked him. “Wanna hear the rest?”
“Sure,” I said and stopped walking.
“I checked out the motel. The clerk is long gone. Out of state. I subpoenaed the crime reports on the ‘67 homicide. I didn’t talk to King, because you asked me not to.”
“Is that it? Right. Great. Thanks Hal.”
The envelope contained a letter explaining that BMI was holding $67 in royalties due James Wayne. They had tried to find him but had no address and would be glad to help if required. With the letter was a square computer printout sheet. Green and white lines alternating, punched holes for a printer on the edges. On the top the name was printed: “James Wayne, Jimmy Wayne, J.D. Wayne. Pay to: Wayne, James D.” Below were three columns: Name of song, date registered with BMI, Publishing Co.”
There followed a list of four songs. I lifted the sheet from my desk and another unfolded from behind. Then another. I stood and pulled. There were seven sheets. Six feet of songs. All written by James Wayne and published.
Published, but were they recorded? If so, did they sell? How much money had Wayne made?
Neither of his “million sellers” were on the list. I had to become an expert in the record business in a hurry.
Richard Sanders had a young, enthusiastic businessman’s voice. “The story about Wayne is really sad, but it is not the first I’ve heard. This business is full of strange people.”
“There are some publishing companies listed.” I read some. “How can I find if the songs were recorded?”
Sanders suggested checking with the publishing companies.
“Most are by a company called ‘Travis,’” I read from the printout.
“I have a list. Hold on,” he said. When he returned: “Travis was bought by United Artists. That’s a good sign. They have offices in New York and one in Hollywood.” He gave me both numbers.
“Will you be willing to testify to the business of BMI, accuracy of your lists, etcetera?”
“Sure, I’d be glad to.”
I asked about the two million sellers.
He said: “I don’t remember them and they were never listed with us. But that doesn’t mean they never existed. In the early days of rock, studios sprung up in garages and warehouses all over the country. They each had their own label, with stables of artists. They would hunt up some black singer who had been doing his thing in small bars and clubs for years, sign him up and put him on wax.”
“My man claims his company owes him a fortune.”
“Who knows? These outfits would sign lots of guys and buy their whole repertoire for a few hundred bucks. They’d sign them to contracts that were murderous. The artists were glad for the bread they never really expected to see. They didn’t know about copyrights, contracts, royalties. Somebody was buying the songs they’d used for years — many of which they’d heard others singing, anyway — and was going to make them stars.”
Eddie Ray filled me in on the rest of what I had to know when I called him again.
“I’ve been thinking about those songs. The label was Peacock. They were out of Houston. Owned by Max Spencer. But he closed up some years ago.”
“The songs weren’t listed with BMI or ASCAP,” I told him. “But Wayne claims the company owes him money for them. A lot of money.”
“It’s possible. Jimmy was like most of those guys. He just wanted to sing his songs and be a big star. They didn’t know much about their rights and the money they were given was big money to them. They’d det some to sign, then more for expenses for personal appearances, and a lot would go down as advances against royalties. All very legal. Only a few got hip in a business sense.”
He laughed. “Yeah. Some of us got educated.”
Saturday morning I found myself driving to Hollywood. This was the center of the west coast music industry. The Capitol Records Tower dominated the skyline above stores selling instruments and recording equipment, recording studios, coffee shops which were open 24 hours to serve record people after all-night recording sessions. It was one area of town where people did walk the streets, from The Strip on the west to Vine Street. Hollywood, Sunset, Melrose, Beverly.
Wallich’s Music City was a supermarket of music on Sunset and Vine. They sold instruments, sheet music arranged for any instrument, mikes, amps, synthesizers, and boasted of a catalogue of recordings without equal. Swing, sonatas, Sinatra; Brahms, boogie, blues; Rachmaninoff, Rock, Rolling Stones; they claimed it all.
I told one of the fey young men who worked there that I wanted to find records written or recorded by James Wayne. First, he checked the tables of albums and singles alphabetically arranged by artist; R&B, Pop, Rock, Folk. Zip. He introduced me to the Phono-Log, a catalogue listing all current releases subdivided by title, performer, and composer. Seeing my man’s name in print brought back the stomach flutters:
“Travelin’ Mood, ATCO No. 103405, Midnight Hour. Dr. John.”
I checked my list. It was number 15. I asked for a copy of the album. He gave it to me.
“One of our hottest albums.” Dr. John, The Night Tripper, was riding a crest of rediscovery of black blues, triggered by new blues-oriented pop groups, like The Stones, Cream, Canned Heat.
"Travelin’ Mood” was band four on the first side, “(By J. Wayne).”
I checked other titles in the Phono-Log. Nothing. I told him about “Tend to Your Business.” Then gave him a sketch of the James Wayne story. He listened as if he had heard it all before, but reacted as I had hoped. He wanted to help a fellow performer, who had been exploited by “The System.” He was gone for fifteen minutes. When he returned, strands of his long curls were matted with sweat.
“I checked with our archives.” He shook his head sadly. “The disks must be out of print for some time. We have nothing on them.”
I asked for other suggestions. He called another young man, a studious looking guy with neater hair. He related the story in short hand. The studious one pursed his lips. “Jimmy Wayne, sure I heard of him.” He said it in a way that told me he hadn’t, but had to maintain his reputation as pop trivia expert. “You might try some of the specialty shops around.”
He gave me the names of some stores that sold out-of-print pop records. They had names like “Blues Man Murray,” “Soul Station,” and “Rhythm Round-Up.” One was in Pasadena. I called it and told my story. It was getting to be like a joke; my recital became more polished in each retelling, but the impact was diminishing for me.
The voice on the other end was sympathetic, but couldn’t help. I thanked the boys, gave them my card in case they ran across anything more and paid for the Dr. John album.
I drove a few blocks to Melrose and Crescent Heights. “Rhythm Round-Up” was a small store with shelves lined with albums, most “used” and worn. Many were 78's. They reminded me of hours spent at the Victrola, listening to heavy disks plop to the turntable. Scratchy trombone and sweet voices; the dark red label with the dog’s head cocked at the gramaphone. “Polka Dots and Moonbeams,” Tommy Dorsey Orchestra; Vocals: The Pied Pipers. My parents told me the sweet, boyish voice was Frank Sinatra’s. No one at the Round-Up had heard of James Wayne.
The next stop was Blues Man Murray. “Murray” was a chain-smoking paunchy little man. What he was doing in a second-hand record store instead of a garment shop alongside my father I never did figure out. He listened to my story without expression. The lone customer in the shop, a girl with long straight hair and wide wire-framed glasses, overheard my tale and said: “Wow. What a rip-off. It blows my mind.”
When I showed Murray my 30 song list, he became active, envisioning 30 sales. He searched the jumbled, dusty shelves and scratched the four or five hairs on his head. He led me to the back of the store. On a ledge under the record rack were Phono-Logs from 1952 to the present. I went through them, first by company, then by performer, then by titles, all thirty.
When I straightened my aching back, two hours had passed, and my manila envelope was full of scribbled notes. I had found notations of records for almost every song on the list. Most were by Wayne, himself: “Wee Willy Wayne” was a new pseudonym for my list. Most were recorded on the Peacock label. There was nothing on the two “big hits,” but something almost as exciting.
In 1958, Peacock produced an anthology called “Masters of Urban Blues.” It contained songs by “Fats” Domino, Joe Turner and other stars of ‘50's Rhythm and Blues. It included “Travelin’ Mood,” sung by “Wee Willy Wayne.” I showed this new list to Murray, who shook his head in disappointment. He had none of the records. No sale.
As I drove back to my apartment, my head was still in the ‘50's. I could remember each year and associate events of my life with songs and styles of the “era”:
‘55, “Heartbreak Hotel” and Elvis. I combed my hair with vaseline in a “DA” (duck’s ass) at the back. I had a garrison belt, saved up for a black leather jacket and I tried to walk pidgeon-toed like the cool guys.
‘56: ‘Tutti-Fruitti” by Little Ritchard, (covered in vanilla by Pat Boone). There was Sonia and dancing in our socks after school to “Whole Lotta Shakin’ Goin’ On,” “Sweet Little Sixteen.” Making out with Maryanne who wore “tight dresses and lipstick,” not wide felt skirts with chenille poodles on them like the good girls. The essence of Maryanne’s perfume is still there tangled with the words: “... Earth angel, earth angel ...” Lips pressed tightly, tongue flashing, eyes open. “... Will you be mi-ine ...” Hands fumbling, squeezing still closer. “... My darling dear ...” Zippers and hooks and buttons and straps. “... Love you all the ti-ime ...” Twisting, struggling, head swimming, out of control. “I’m just a foo-ool, a fool in love with you-ou ...”
Where was Wee Willy Wayne then? Sweating in some smokey dive in Tupelo? Getting blasted on bottled lightning in an echo chamber? Driving a white Caddy with foxtails on the antenna? Getting stoned on reefers in a hotel room in Houston?
Both he and I building a frame of dreams, fantasies and myths about ourselves and our worlds.
I devised a devious strategy for the case, to tweak the system to make it come out “right.” It would have been nice if I could do it the easy way. Just lay out the “truth” and have everyone involved admit their errors. But I had learned enough to know that it wouldn’t have worked. The DA would have tossed the ball to the doctors. The doctors whose reports were consistent would have stuck to their opinions. The Atascadero administrators would have maintained their views.
So I opted for the oblique approach. First, I told the DA and judge that we would be forced to go through the motions of a jury trial, despite (I strongly implied) my own misgivings about the waste of time and certain verdict against my client. The judge was used to the fact that PD’s often are placed in the position of trying “sure losers,” concerned mostly about how long the trial would take. He sympathized. So did the DA, though she was more concerned about how much work she would have to do.
I placated both of them. The trial would be short. I would stipulate to the doctors’ reports, didn’t need their testimony. It would be an interesting kind a trial, more like a civil trial, where I had the burden of proving my case by a preponderance of the evidence with a 9-3 verdict needed. I would put on some evidence and documents about my client’s life, argue and that would be it. Was he insane and a danger to others?
In the trial, the highlight was the BMI record keeper. He testified about the songs on the first page of the print out.
The DA asked, well, just because he published a few songs doesn’t mean he published any others, does it?
I then showed the rest of the sheets to him. He held one end and I unfolded them so that they extended almost to the end of the jury box.
The DA asked: well, just because the songs are published doesn’t mean they were successful, does it?
I offered the Dr. John album, asked if there were royalties owed to Wayne. The witness came up with records showing several thousand dollars in roylaties accumulated into Wayne’s account.
The DA, a little angry at being sandbagged by me, called Dr. Rose to testify. Predictably, he said that the “facts” didn’t change his opinion.
I confronted him with the other evidence he had relied on of James’ “delusions.” He had been a potential witness to the murder of his neighbor. His fear of harm from the real culprit was rational. He did know B.B. King, Bobby “Blue” Bland, Jimmy Smith and other R&B legends.
I asked Dr. Rose whether his and other psychiatrists formed opinions about delusional and paranoid thoughts based on their own understanding about reality. “If a patient tells you he talks to little green men from Mars, your opinion might change if you met these guys, wouldn’t it?”
That got me a little laugh from a few jurors, but Rose tiptoed around it. It didn’t matter.
Nine of the jurors voted to free Jimmy Wayne, to declare that he was not a sufficient danger to others that he needed to be locked up.
A few weeks later, James came to my office. He wore a new suit. He asked me to join him to meet Eddie Ray for lunch. Mr. Ray talked about the possibility of a new contract for Jimmy. The record company might be interested in “his story.” James Taylor had some mental problems and that hadn’t hurt his career.
Some time later, James called. He was at a Cadillac dealer, complaining that they had stolen his money. The car dealer told me that James had bought a used car, and it had been stolen and James wasn’t insured. There was nothing they could do.
A few months later, James came by again, asking for a few dollars to help him get by. He had given what remained of his royalty checks to a “Mojo Man” to lift a hex that had been put on him.
A few months after that, I left the office for a year to travel around the world with Bea.
During the trip, I wrote most of the above while in Paris pretending to be Ernest Hemingway. I soon got over that delusion and returned to the office.
I never heard from James Wayne again.
After I began to post this memoir, I found the following with a search for “James Wayne” on some record maven’s website:
"JAMES "WEE WILLIE" WAYNE
"Born James D. Waynes, circa 1923, Texas. Probably deceased.
"I first heard James Wayne(s) via "Travelin' Mood" on the LP "Urban Blues: New Orleans Bounce" (Imperial LM-94004), which I bought in 1970, not long after it came out. An infectious song with an unusual rhythm and lots of whistling. In the 1980's I found a Dutch bootleg LP by Wayne called "Travelin' From Texas To New Orleans" (Sundown CG 709-02, 18 tracks). What follows is mostly adapted from the anonymous liner notes for that LP.
"James Waynes was credited with that name on his earliest recordings. Later it became James Wayne and from 1955 onwards, Wee Willie Wayne. He was an R&B singer with a distinctive voice, who was discovered in Texas by Bob Shad, the man probably best known to R&R fans as the owner of the Time, Brent and Shad labels in NYC in the late fifties and early sixties.
"However, Shad started out recording Southern R&B and blues on his Sittin' In With label in 1948. It was for this label that Wayne made his first recording (in Houston) and his only hit: "Tend To Your Business", which reached # 2 on the Billboard R&B charts in 1951.
"Shad next recorded Waynes at the WGST studio in Atlanta, Georgia. Among the five songs recorded there was the all-time classic "Junco Partner" (subtitled "Worthless Man" on the old 78), which became a local hit. Waynes was then signed by Imperial, who recorded him in New Orleans. Although he was backed by some of the Crescent City's finest session men (Lee Allen, Edward Frank, Justin Adams, Frank Fields), the style on these records is more Texas than New Orleans.
"After excursions to Aladdin and Old Town, Waynes returned to Imperial in 1955 and recorded "Travelin' Mood" (among others) on May 27, 1955. Both "Junco Partner" and "Travelin' Mood" became standards in the repertoire of many New Orleans musicians, like Dr. John, Professor Longhair, James Booker and Snooks Eaglin. Further records appeared on the Peacock and Angletone labels, before Waynes was signed by Imperial for a third time in 1961.
"On February 22 of that year he rerecorded his hit "Tend To Your Business" in a more contemporary style, along with five other tracks. Imperial reissued "Travelin' Mood" on Imperial 5725 and also released a compilation of old and new Wayne material with that title on Imperial LP 9144. Sales were disappointing, though, and the 1961 Imperial recordings were probably his last ones.
"Besides being a singer with a very personal vocal style, Waynes played at least one instrument, drums. He also wrote his own material. Judging by his looks, it is not unlikely that he had Indian blood.
"In 1968 it was alleged that he was nursed in a mental institution in Leavensworth and in 1974 there was a rumour that he was living in Los Angeles. That's where the trail runs cold. Perhaps someone (Dave P.?) can shed further light on what happened to him? I don't even know if he's dead or alive. His music is well worth seeking out, a fine blend of Texas blues and New Orleans R&B.
"There is one CD available, probably a bootleg: James Wee Willie Wayne, From Texas To New Orleans (Bayou 1004, released in 2002, 31 tracks)."
Search for “Eddie Ray” & music revealed the following:
"Nomination of Edward W. Ray To Be a Commissioner of the Copyright Royalty Tribunal,
September 1, 1982
" The President today announced his intention to nominate Edward W. Ray to be a Commissioner of the Copyright Royalty Tribunal for a term of 7 years from September 27, 1982. This is a reappointment.
"Since 1981 Mr. Ray has served as a Commissioner of the Copyright Royalty Tribunal. From 1979 to 1981, he was president of California Multiple Industries, a real estate investment management firm in Los Angeles, Calif. He was vice president and general manager of Cream-Hi Records (Memphis Division) in 1976 - 1979; president and owner of Eddie Ray Music Enterprises, Inc. (Memphis), in 1974 - 1979; vice president of Artist and Repertoire, MGM Records (Los Angeles), in 1970 - 1974; executive vice president and chief operating officer of the Record/Music Division, Burt Sugarman/Pierre Cossetts Television Production Co., in 1969 - 1970; vice president for Artist and Repertoire, Capital Records, in 1964 - 1969; and executive assistant to the president, Imperial Records (Los Angeles), in 1955 - 1964.
"He graduated from Los Angeles City College and Memphis State University. He has two children and resides in Los Angeles, Calif. He was born December 21, 1926, in Franklin, N.C."