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Sunday, September 10, 2006

"Squeezing The Lemon": The Holistic Approach

On September 9, I gave a lecture at the 24th Annual Homicide Defense Seminar hosted by the California Public Defenders Association (CPDA) in San Francisco.

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.


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
The problem with checklists is that lawyers treat each task as something to be completed, put into a folder, and then ignored.

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:

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.

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:

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.

Wrapped in the legalisms and procedures, we must not forget what jurors can't forget: somebody died and your client probably did it.

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.

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:

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.

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.

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.

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?

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.

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.

911 TAPE
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.

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.

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.

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 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?


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.

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.


  1. Great post, dad! It sounds like doing a diligent job of a defense is really a pain in the ass!

  2. As always, you inspire me to work harder and do more than I think I can do.

  3. You know, I don't know how many hours I have eviscerated watching Law and Order, CSI, etc., not to mention a childhood of Quincy, ME and the like, but this five-minute read was so much more interesting and informative and, frankly, exciting than all those formulaic shows put together! Just great.

  4. Thanks, Jem. That makes my day. What drew me to these cases was the drama. A courtroom during a real murder case (not one on court t.v.) is heightened "reality." Sometimes routine, sometimes dull, but always with a tension lurking that can make it hard to breathe.

  5. it's been said already, but great post! heartening to imagine the green (not yet gray) young lawyers who'll go off inspired by your tutelage. i only wish i'd been able to see it in person. truly stellar!

  6. Thanks, max. I think cpda videos & audios the leture for cle credit - theres a script idea in there somewhere.