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Thursday, December 27, 2007

Passages - Other Thoughts

My recent post, Passages, brought the following comment from Max:

"If it's any consolation, i suspect mckinley & co. seemed farther back to you then than jfk & co. seem to us now. and i think the reason is technology. 1) we can see and hear the great figures and events of your youth in a way we cannot hear or see the events of your grandparents'; and 2) as remarkable a technological leap as you've witnessed in your lifetime, the one witnessed by your parents/grandparents generation must have been even more so - the difference between phones and the internet, while extraordinary, strikes me as less jarring on a day-to-day basis than the difference between horses and buggies and space travel.or maybe that too is just a matter of perspective."

He's right, of course. The leaps of technology, ever accelerating, seemed to approach light speed in the 20th Century, just in time to befuddle my grandparents' generation.

I vividly remember watching the moon landing in July, 1969 at my parents' house. My grandfather, Papa Hymie, peered at the T.V. through his bottle thick glasses, trying to grasp the idea that a rocket sped at 17,000 miles per hour for a few days and deposited men on the surface of the moon.

I viewed my grandfather's inability to accept the concept, much less the reality, of the feat as only a condescending 20 something know-it-all could, feeling quite superior to this uneducated man of limited imagination.

Some time later, I had occasion to re-think my judgment, when it occurred to me that Papa Hymie had been born in Russia @ 1885. He had come to America by train and ship, a journey that must have taken weeks.

He was well into his teens when the Wright Brothers first controlled their biplane in flight, and was in his 20's when he heard his first radio broadcast. One of his brothers died in October, 1918 on the Western Front and Hymie built ships in Perth Amboy, New Jersey during the Second World War.

Now, when Greg tries to explain computers and cell phones, multitasking and internet capabilities, rhapsodizing on the revoluton expected as the 21st Century matures, my own glasses blur.

But still, I suspect that the 2oth Century is going to be a hard act to follow.

Monday, December 24, 2007


There are event that cause you to pause and see where you’ve been and where you’re bound to go. For me they are the landmark birthdays — 21, 30, 40, 50, 60 — when I’ve found myself imagining or remembering what my father was at those ages.

It is often a shock to think about such things, sometimes uplifting as when it occurs to me that my father at 50 (I was then 19) seemed so old while I at 50 didn’t feel that way.

My father died 20 years ago this week. By now, most of his generation have passed. My father’s kid sister is the sole survivor of his five siblings. And this week I attended the funeral for my sister’s father-in-law, who made it to 93. My own father-in-law is about 96. No one can be certain of his exact age because he was an unreliable reporter long before his memory began oozing away.

At the memorial service, watching my generation’s children as they experienced their own rite of passage — the loss of the last of their grandparents — and watching my brother, sister, our contemporaries, it struck me that we are the elders now.

How absurd! Even when I feel old, tired, used up, achy and sore, I never conceive of being an "elder" anything. And yet I know it is undeniable.

At the dinner tables in my youth, I remember being awestruck when my grandfather spoke of seeing President McKinley, San Francisco after the big ‘quake, Jack Johnson and Jack Dempsey.

My father spoke of his own boyhood experience of seeing Babe Ruth hit a home run, my mother of winning a Charleston contest, mourning Russ Colombo, seeing the Empire State Building being finished.

How is it possible that the events I relate to my son and nephews: McCarthy, Jackie Robinson, the Kennedy assassination — are as far back to them as those ancient events were to me?

Tuesday, November 20, 2007

Vacation Over

I just got back from a week’s vacation in Hawaii. During that time I didn’t read a single newspaper, in print or on line. When I returned, seven days of the LA Times were delivered at once. And I find that some disturbing things occurred in my absence.

Barry Bonds was indicted, Ira Levin (author of "Rosemary’s Baby") died, the stock market went down and then up again. The housing market stayed down.

Maybe the most disturbing news was the suicide by hanging of Lisa McCalmont, a 49 year old lawyer from Oklahoma who was actively involved in challenging the constitutionality of lethal injection as a means of capital punishment. She had worked for the federal public defender and had won reversal of at least one other death verdict on appeal, resulting in a life sentence. She lectured across the country to defense lawyers on the subject and was lead counsel on cases that forced Oklahoma to suspend its lethal injection procedures.

According to the Times Obit, she left no note, and friends were unable to explain why she killed herself. I showed the article to Greg, thinking it "ironic." He said it wasn’t irony, but I don’t know.

I can’t help wondering why she chose hanging, a particularly painful form of execution, which had been rejected as "cruel" in favor of more humane forms, like lethal injection, which she crusaded against.

Was she sending a message?

Sunday, November 04, 2007

Lights, Camera ,,, Your Witness

I spent the weekend watching aspiring film makers do their thing. There were some actors, a camera operator, a few others who helped with the sound, production, props, and the all-important food breaks.

I was particularly interested in the young guy who was directing the piece. While the others were responsible for their particular roles, each came to him to make the final choices about all the details that seemed to be critical to the success of the project. Though there were suggestions and alternatives offered from all sides, his was the final word each time. Even for a one day "shoot" of an 8 page script on a mini budget, he had to make decisions about almost every aspect of the work. I couldn’t help comparing his job to mine.
Every case, especially those that come to a trial, involves hundreds of similar decisions. A "story" has to be told, usually a mystery. Sometimes a whodunnit, or why, or how, but always some riddle that has to be decided. On occasion, the trial becomes a thriller or a comedy and almost all criminal cases have elements of tragedy.
The lawyer is performing, orchestrating by his questions, his arguments — molding a "script" for his audience. Where should the emphasis be placed? How should the scenes be set? It is a performance that demands a certain amount of "craft."
But there are certainly differences.
For one, the director of the film can shoot his scenes in alternative versions and then edit at leisure to tailor his story. The performance of the trial is more akin to a "live" show. The lawyer has to edit on the fly, if at all, by trying to keep out "bad" evidence, to prevent blurted deviations from his theme.

Rarely, the lawyer gets a "do over" when there is a mistrial, a hung jury. Then the drama has to be played out again, with the handy "script" that we call a "transcript," the record of the previous testimony. With the surprise now gone, these shows tend to be anti-climactic and dull, at least for the lawyers. That is, until one of the lawyers decides to "edit" by presenting different or additional witnesses.

Or, as sometimes happens, a witness decides to be creative by improvising new answers to the questions previously asked. That gets to be fun.

The lawyer has one advantage over the film director. He has only to please an audience of 12. But he picks them from among a large pool of unwilling applicants. The director is at the mercy of a random audience which he cannot choose, except by advertising his production in order to entice a favorable pool.

As I watched the director coaching his actors to produce the greatest impact for each scene, I found myself imagining how nice it would be to be able to "coach" witnesses and clients in a criminal trial. Coaching witnesses is supposed to be a no-no, because it implies feeding them lines, but some lawyers find it impossible not to do it.

I’ve never been able to bring myself to do it. Maybe I don’t want to win badly enough — its probably a character flaw. But I just always have the nightmare that if I tried it, my client or witness would mess up and blurt out, "Well, that’s what the lawyer told me to say!"

I’ve caught prosecution witnesses that way on occasion and it is not a pretty sight.
I have had the miserable experience of hearing my client tell a completely different version of the "facts" on the witness stand than the one he told me was the "truth" when I interviewed him. I looked down at my notes of the interview and listened to this new "story," felt the beads of sweat drip in my armpits, and asked "What happened next?" trying to sound to the jury as if I really knew what he was going to say.

That must be how the actors and director feel when Robin Williams or Robert De Niro begin to "wing it" during filming, except that the director can yell "cut" and the result is almost always more entertaining than the original lines.

My client wasn’t as entertaining, at least not to me. But then again, the D.A., judge, and the jury were laughing.

Wednesday, October 24, 2007

PD Blues

I went out to one of the public defender branches to give a brief talk to the lawyers during their lunch hour. It was going to be similar to talks I’ve given other times about trying homicide cases that I call "Squeezing the Lemon."

But while dining on the tuna sandwich before my talk, I was told that the greater problem wasn’t trying murder cases, but rather a reluctance to go to trial on any case, even misdemeanors.

So my talk turned into a pep talk, a task akin to creating enthusiasm in World War I troops to go over the top and face the withering machine gun fire because "it’s fun."

This issue of defense lawyers being "gun shy" about trials is not a new one. Contrary to legend, most defense lawyers are afraid of trials and avoid them. (In fact, it’s also common among civil lawyers, mostly for financial reasons. Settling cases is far more cost effective than the time, expense, and risk of actually going to trial.)

But for public defenders it is an occupational disease that can be fatal. I know, because I was infected by it and went through miserable times fighting the ravages. Cold sweats, mental constipation, nightmares (the most common night terror: in front of the jury and you forgot your notes, your tie, or your pants - that wakes you up in a hurry).

Defending a criminal trial is a test of character, a crucible, a coming-of-age ritual for any who survive it. It forces you to face the chilling fear of failure you’ve felt at every stage since childhood - in school, sports, socially.

You fear you will be exposed for the fraud you always feared you were. Everyone will now know that your claimed confidence, your intellect, your wit, your appeal, were all poses. Underneath, you were and are and always will be ... a loser.

The only way to overcome this disease is, I blush to steal a line from Nike: just do it. You have to steel yourself against all the arguments contra:

The duty to do what is in the best interest of the client means urging acceptance of "the deal" ... the judge will hate you and punish your client for forcing a trial when "the deal" was so sweet... Yada, Yada.

But public defenders have an advantage over other lawyers — you are assigned many more cases, thus have more chances to pick the ones that you want to take to trial.

In the beginning, I lost almost all my trials because I pled out my "winners" — took the good deals, and tried only the "losers" — the cases where the offers were no real bargain because the case for guilt was solid.

That was discouraging. Some lawyers would come back from court time after time with wins. I thought I really stunk. Then I found out that the "winners" were cherry picking cases — trying cases the DA knew were weak just to pad stats and boost their egos.

Others would exaggerate the difficulty of the cases they tried in order to impress peers with their genius. "How’d he win that dog?"

The truth is that public defendering is like baseball. If you bat .300 for your career in the big leagues, you’ll be in the Hall of Fame. If you win as many as 3 of 10 cases as a public defender, you’ll be elected God – or disbarred because you must have cheated.

But every loss is really a win. A win for your next case, a win for you because of what you learned - about people and mostly about yourself.

I lost a trial once for a client who had a 10 page rap sheet full of crimes he’d pled guilty to. After the guilty verdict, the client thanked me. This was rare even when I won, but after a guilty on all counts verdict it was stunning. The client explained: "I copped out every time before. But this time, you fought for me. That made me feel good. Thanks."

So, there’s that. Another valuable lesson. And the DA knew he’d been in a fight, too. The next time the offered deals got just a little bit better.

For a long time, I looked forward to each day. There was always going to be a new "war story" in the lunchroom. The PD Office was a bag of mixed nuts back then, eccentric characters who were good for laughs and life lessons.

They had a swagger that was encouraged by the combative generation of WWII vets who ran the office. Esprit de corps was insured by a paranoid temper of "us against them" and "them" was everybody else. When judges complained to our bosses about "obstructionism" because of refusal to go along with the program, our superiors usually listened politely, then smiled. More than once, I heard superiors complain: "Shit, I was going to move Al out of that judge’s court, but now that she complained about him, I gotta keep him there."

Though the first rule was to defend "individuals," not "causes," there was no great reluctance to use the power we wielded because of the sheer number of cases we had to force the system to do better for our clients. Clogging the courts with trials, putting some judges out of business by "blanket" challenges — we acted together to get our way.

Things gradually changed. The next generation of "managers" were rewarded for being part of the system. They cooperated with reforms, like "EDP"- early disposition programs, that benefitted clients and the system in the short term by apparently generous plea bargains if you settled your case early on.

The lessened strain on the system eventually hurt the rest of our clients because there was no leverage to force better deals. And eventually it hurt those who took the sweet deals because when they came back on their next case, they found they were on probation, had a prior conviction, which along with changes in sentencing laws, meant going to trial now was extremely risky, sometimes impossible. In many cases, even if the defendant was acquitted in the new case, he would be found in violation of probation and punished severely anyway.

Strikes laws handcuff public defenders. You pled a kid to 2 burglaries because the judge gave him probation. Now, he commits a minor felony: say, possession of drugs which would deserve probation. But his record now means his exposure is 25 to life. So when the DA offers to "strike a strike," its hard not to take the deal even though the client now gets 32 months in state prison instead of what the crime rates. Who wants to go to trial on a possession — a one day trial – where the client can get life?

The public defender culture is completely different than it was back in my day. Looking at the faces of the 20 or so lawyers I spoke to at lunch, I didn’t see much of the eccentric self-assurance that used to be the hallmark.

After I overcame my initial terror, I loved being a public defender. After about 10 years, it began to wear on me. When people asked me how I liked it, my standard line was: "I hate my job but I love my work." The distinction was important. A job is something you have to do to earn a living; "work" is your "profession."
The "job" requires swallowing the self-righteousness, hypocrisy, bureaucracy, the corrupt and dishonest system, shaving every day, driving in traffic, paperwork, routine.

The "work" is using your skill and experience to actually "help" some people, to make a difference in some lives, to argue persuasively things you think are right, to "keep the system honest," to speak truth to power, to stop the railroad or at least slow it down, to occasionally win.

The rare "thrill" comes when you win a jury trial (win means getting a better result than you were told to plead to before trial). You talk to the jurors afterward and they thank you for "the experience." The judge grudgingly smiles and compliments you for doing what he thought was impossible. Even the DA, your opponent, may gain respect and forge a lasting friendship that only bloodied combatants can share.
And maybe the biggest kick is the ride in the elevator to the office where you can walk down the hall and shout "NG," take the back pats and dump the file into a box.
Every lawyer I know likes to talk about their trials or other trials they heard or saw or were told about. Those are the vivid memories that keep them alive. Few of the clients who took deals make good stories.

Friday, October 19, 2007

The Big Gulp

Probably like other lawyers, I cannot watch any of the T.V. lawyer programs. "L.A. Law" irked me when I was a public defender because I couldn’t afford their suits or even their haircuts, much less the snazzy offices they worked & played around in.

Being in criminal law, the crime / law shows were worse torture. Even supposedly gritty ones like "N.Y.P.D. Blue" and "Homicide" rankled.

My loved ones banned me from movies on the subject after "The Verdict," when I gagged on my Big Gulp in so many scenes that I needed a Heimlich to survive.

So why did I rent "Fracture"? Anthony Hopkins & Ryan Gosling, two of my favorites outsmarting each other, that was the hook.

And I wasn’t disappointed by their scenes together — the brilliant, sly defendant vs. the young, slick D.A. Hopkins and Gosling were fine.

But the plot’s turns that depend on The Law had me laughing and gagging again. The suspense and the payoffs rely on two bits of legalisms that are completely bogus.

The judge throws out a signed confession because one of the officers in the room had been having a secret love affair with the victim, the wife of the guy who confesses that he shot her. I could swallow the melodramatic stretch of this unlikely event. That's not what bothered me. But the law is wrong. No judge would find such a confession to be coerced on that evidence. Nope, uh-uh. Never happen in any court in the U.S.

The second supposedly surprising legal twist is that after the brilliant defendant is acquitted of attempted murder of his now comatose wife, he signs papers that get her plugs pulled and she dies. He thinks double jeopardy will prevent his re-trial. Uh-uh. Wrong again.

This was the same plot blunder made by an Ashley Judd film a few years ago callled "Double Jeopardy". Ashley was convicted of killing her husband when he vanished from their boat and while in prison, she discovers that he is still alive. She is released and goes to find him, confronts him and kills him, getting away with it because as we all know, "you can’t be punished twice for the same crime." Nope. Sorry. Not true. Never has been true. The law would simply apologize for its first mistake and lock you up again.

Now, don’t get me wrong. I get it that shortcuts and contrived plot devices are sometimes necessary to make a story work. I don’t mind it if the inaccuracies are incidental to the main point. But when it is the Big Twisteroo or when the movie is intended as a commentary on "The Legal System," artistic licenses should be revoked.

Wednesday, October 17, 2007

In The News:

1. Governator Arnie vetoes a criminal procedure bill that would have required corroboration for jailhouse informants, taping of interrogations, and uniform identification routines. Police and "some" DA’s objected to the bill.

2. Matt Lauer’s hard hitting interrogation of Larry Craig reveals that he likes his wife and in not gay, bisexual, or liberal - that is, Craig, not Lauer. Lauer’s cross-examination technique makes Mike Wallace blush, requiring a transfusion. Matt asks hardball questions like: "Pardon me for asking, but weren’‘t those bloggers who outed you embarrassing to a real man like you?

3. PBS’s "Frontline" episode called "Cheney’s Law" exposes more about how our government works than any Poli. Sci. class in any college in America. Those of us old enough to remember the 70's call it "All The Vice-President’s Men."

Saturday, October 13, 2007

It Ain't Me, Dude

Over the years, I’ve noticed that there are some songs that are pertinent to my experience as a criminal lawyer. Among the titles that I hummed while slaving in lockups and courthouses were "I Fought The Law (And The Law Won)" by Sonny Curtis and "Please Release Me" by Roger Miller, et. al.

Of course, "Johnny Cash at Folsom Prison" was an album that was full of profound observations about the dilemma of our clients. For example: "Cocaine Blues" [by T.J. Arnall (and many others) reads like a confession by one of my clients:

"Early one mornin' while makin' the rounds
I took a shot of cocaine and I shot my woman down
I went right home and I went to bed
I stuck that lovin' 44 beneath my head
Got up next mornin' and I grabbed that gun
took a shot of cocaine and away I run ..."

The last stanza could have been written as a commentary on my performance:

"...Into the courtroom my trial began
where I was handled by twelve honest men
Just before the jury started out
I saw the little judge commence to look about
In about five minutes in walked the man
holding the verdict in his right hand
The verdict read in the first degree
I hollered Lawdy Lawdy have a mercy on me
The judge he smiled as he picked up his pen
99 years in the Folsom pen
99 years underneath that ground
I can't forget the day I shot that bad bitch down..."

Of course, no modern songwriter’s lyrics are more on the nose when it comes to my generation’s experience about almost everything than Dylan and he might well have been watching some of my early pathetic attempts at defending petty criminals when he wrote "The Drifter’s Escape."

"Oh, help me in my weakness," I heard the drifter say,
As they carried him from the courtroom And were taking him away.
"My trip hasn't been a pleasant one And my time it isn't long,
And I still do not know What it was that I've done wrong."
Well, the judge, he cast his robe aside, A tear came to his eye,
"You fail to understand," he said, "Why must you even try?"
Outside, the crowd was stirring, You could hear it from the door.
Inside, the judge was stepping down, While the jury cried for more.
"Oh, stop that cursed jury," Cried the attendant and the nurse,
"The trial was bad enough, But this is ten times worse."
Just then a bolt of lightning Struck the courthouse out of shape,
And while ev'rybody knelt to pray The drifter did escape"

And Dylan summed up my life when he wrote:

"... You say you're lookin' for someone,
Never weak but always strong,
To protect you an' defend you
Whether you are right or wrong,
Someone to open each and every door,
But it ain't me, babe,
No, no, no, it ain't me, babe,
It ain't me you're lookin' for, babe..." ["It Ain’t Me, Babe." Bob Dylan]

Friday, October 05, 2007

Woes is me

A friend who knows me well chuckles about the black cloud that accompanies my life like a pet tarantula.

I have been in a computer generated coma for 4 days this week.

My hard disk crashed suddenly in the resulting storm, destroying forever about 20 gigs of data: settings, photos, music, case files of every sort, and the hopes and dreams of the last two years of my life.

None is recoverable and so I have to start fresh, as a virgin moving to a new town.

I spent the last day trying to get back online and reconstruct bookmarks, remember usernames, passwords, sites ...

The precious gem of Time is frittering away...

Friday, September 28, 2007

My Week - In and Out of Courtrooms

The interpreters are striking for higher pay - have to continue two cases. While waiting in court I talk to an acquaintance.
I tell him about my final capital case. He shrugs. He’s done 18 and has 6 on death row. He’s just been divorced, has joint custody of his 2 kids - alternating weeks with his ex so can’t afford to stop doing them.

Sitting in court all morning waiting, I am forced to watch a preliminary hearing.

A man with a thick middle eastern accent testifies that he owns a “smoke shop” on Ventura Blvd in Sherm’ Oaks. A man came into his shop and asked “to look at bongs, I mean tobacco pipes.” The owner showed the man several and the man took one and ran out of the shop. He chased the thief down the street. The thief got into a car and it drove away. He identified the public defender’s client as the thief.

On cross-examination, the witness admitted that when he first came to court he saw the defendant and said that he didn’t think that was the man. When asked by the PD why he now was sure of his identification, the witness said, “the police officer told me he confessed.”

My client is a 20 year old girl, about 5 feet tall if that. She’s in the basement lock-up, her tiny body swimming in the jail blue jumpsuit. She met her boyfriend (call him Rory) at Birmingham Hi when she was 17. He wooed her with heroin and a friend (call him Doc) who had a plan.

Together they ripped off Starbucks and Jamba Juice places of their tip jars and other stuff to buy dope and gas for her car.

The cops were waiting at one place and when they came out, they jammed her car. She panicked and backed into a police car and bruised a policewoman’s leg as she jumped out of the way.

She confessed, apologized and said she didn’t mean to do it - she hit reverse instead of park.

She’s charged with 2 counts of assault with a deadly weapon on police officers and 8 or 9 counts of burglary. The DA offer if she pleads guilty is 5 years, 4 months. She begins to cry when I tell her this.

The probation officer recommends a year in jail and 5 years probation. I may be able to persuade a DA to come off a prison sentence IF the cops aren’t still pissed and if I find a DA who still has some warm blood in her veins.

The Spector trial, as expected, results in a hung jury. David Letterman: “... weird celebrity emerges from house with blood on his hands & says, ‘I think I killed someone,” equals ‘reasonable doubt’ in L.A. This is news?”

I call DA’s on 3 of my cases, leave messages. One returns my call. I move files from one side of my desk to another, make copies of things for my investigator. At 3:30 he calls, still in Lancaster on another case. We reschedule for Friday. I’ve got to go to Van Nuys and then to San Fernando, but I’ll be back by noon - I hope.

It’s misty in L.A. The traffic is unaccountably light. There are no accidents on the freeway. My Van Nuys case goes smoothly and so does my San Fernando case. I am gone by 11. Is it the end of the world?

At 11, I get a call from a court clerk. Judge refused to appoint an investigator on one of my cases because my declaration didn't give details to prove my client is indigent (and couldn't afford to hire one).

I respond that he is in custody unable to make bail and I am appointed because he couldn't afford a lawyer. The judge says to put it in a declaration and resubmit.

I smile. Oddly, I feel better now that something stupid has happened to wrap up the week. I call my investigator and cancel our appointment.

Max comes over instead. We kick around some new ideas about reincarnation and pets and parenting.

Overall, not a bad week. I've managed to delay 17 decisions (14 case related, 3 personal), made 2 choices that seemed to turn out okay, and survived.

Thursday, September 20, 2007

The Celebrity Crime Conspiracy?

Nicole, Paris, Britney, the return of OJ. Sometimes it seems that celebrities get into trouble simply to fill our airwaves and computers with amusing stories. Maybe not. Conspiracy theorists might unearth secrets...

Suppose there was more than coincidence to the never ending string of celebrity crimes and trials. What if Britney, Paris, OJ et al have contracted with mysterious and powerful corporate media (a la "Network”) who finance their foibles for entertainment value, keeping them in the news, bolstering fading careers and paying for their legal fees etc while keeping them as media stars, promising reality shows, book deals, guest appearances, cameos, product endorsements, all owned and controlled by the conglomerates who profit from the tie-ins.

Not only do I think it is feasible, I think it may be true. If not yet, let's suggest it.We'll make millions.

Celebrity crimes have always been entertaining to us.

Back in 1994, I watched in horror and amusement as my profession became the world’s most popular spectator sport. The OJ Show dominated media and water coolers for many months.

The spectacle was labeled “The Trial Of The Century” by a hysterical media. Of course, that is nonsense, except as it provided unprecedented ratings and thus profits to the cable networks, which depend on such events to fill unending 24 hour “news” programs with talking heads and looped footage of perp walks.

Although trials have always been news, the emergence of mass media in the 20th Century made them big business and mass entertainment. Historically, trials were considered “news” because of the social significance attached. Reporting of such crimes has always been biased.

In the ancient world, the trial of Socrates for crimes against the Greek Demos was reported by his students, Plato and Xenophon. The Salem witch trials continue to fascinate historians and poets, including Arthur Miller (“The Crucible”), who saw a parallel with the McCarthy witch hunts of the 1950's. In the late 19th Century, the libel trial of Oscar Wilde and the Dreyfuss trials in France were cultural landmarks as well as scandals.

America has had its share of highly publicized socially important criminal cases. In 1770, American patriot John Adams defended the most unpopular clients imaginable: British soldiers accused of the “Boston Massacre.” He won acquittals for 6, and lesser manslaughter convictions for 2.

Clarence Darrow became America’s most famous criminal lawyer in the Scopes trial, the first trial to be broadcast on radio, and defending rich spoiled murderers Loeb & Leopold (predating the Menendez case by 70 years). Both trials involved issues that linger today: evolution vs. creationism and the death penalty. The Sacco / Vanzetti and “Scottsboro Boys” trials of the 1920's and 1930's became liberal causes focusing on social injustice. The Rodney King trials, beginning in 1991 qualify by that standard. The Nuremberg trials after World War II could lay claim for Trials Of The Century without much debate if the standard is social importance.

In all of these cases, the public’s interest was based on more than morbid curiosity. There were issues perceived to be at stake and while the coverage was often distorted, biased, untrustworthy, the issues justified the attention.

But the media’s exploitation of the public’s fascination with criminal cases also forces appeal to baser instincts. The first “Trial of The 20th Century” was the murder / sanity trial @1906 of Harry K. Thaw, a millionaire playboy of The Gilded Age, who killed famous architect Stanford White in Madison Square Garden’s theater-restaurant over Evelyn Nesbit, a showgirl who was White’s mistress before she became Thaw’s wife.

Hearst and Pulitzer sold scads of newspapers as readers soaked up the first celebrity circus of the new century in which mass media would thrive and drive the bus.

In the 1920's, silent film comic Fatty Arbuckle was prejudged guilty of rape by the press driving public opinion and his career destroyed by the Hearst chain of newspapers despite the weak evidence of his guilt that led to his eventual acquittal after 4 jury trials. Along with other scandals of the new film industry involving sex, drugs, suicides, and other public misdeeds by celebrities, this event led to the censorship of movies in the 1930's.

Film stars have always provided fodder for media churning. Errol Flynn’s trial for statutory rape, Charlie Chaplin’s paternity suit, Lana Turner’s testimony in the trial of her daughter for the killing of Lana’s lover, Johnny Stompanato, are among the many that entertained the public. In the 1950's, scandal magazines like “Confidential” thrived on borderline libels that gossiped about “Commies,” “queers,” and “dope fiends” in Hollywood.

The Lindbergh / Hauptmann trial of the early 1930's was the most talked about celebrity crime and trial of its time, unusual because the celebrity was not the suspect but the victim. Lindbergh was the most famous man in the world at the time and the kidnap / murder of his infant son and eventual trial of the accused killer accounted for more headlines than The Great Depression or the ascent of Adolph Hitler.

The Simpson trial was alarming to lawyers who labor in the legal vineyard because it threatened to turn our profession permanently into a spectator sport. We feared that televising the trial would unfairly expose the delicate deliberative process of the courtroom to the microscopic distortions that would destroy it.

While most in the legal system (meaning judges) quickly saw the danger and drew back from the practice of televising trials, Court TV thrives and lawyers seeking instant fame continue to chew up airtime as commentators willing to speculate with little information about notorious criminal cases.

That this practice is damaging was proven by the so-called Duke University lacrosse team rape case. Media talking heads, many lawyers among them, were quick to condemn the accused students, forcing their suspension, the firing of their coach, racial tensions, and a long hard fight to prove their innocence despite the presumptive guilt.

In L.A., Phil Spector has been in trial for 5 months in the latest OJ spin-off. Judge Fidler, when allowing the trial to be televised live on Court T.V., vowed that he would not become subject of a SNL skit like “The Dancing Itos.” But his risk is high. The trial included events that can be attributed to or at least were affected by the cameras. Lawyers on both sides have played up the dramatics, skirted ethics, witnesses have groped for minutes of Kato Kailenish fame, experts have promoted themselves, court watching pundits have speculated wildly and the judge himself has grandstanded.

No one’s reputation has benefitted. The L.A. D.A. office, which has almost as much at stake as Spector, has not inspired any more confidence in its ability to prosecute rich celebrities than it did in Menendez, Simpson or Blake trials. Now that the jury is possibly deadlocked, the judge seems desperate to squeeze a verdict and it seems pretty clear that he would prefer one of guilt to save his own bacon.

Back in the Simpson days, I envisioned a dystopic future in which lawyers would enter courtrooms covered in logos for endorsed products.

By the way, I wear Armani, Chanel, Bass, carry a Cross briefcase, use a Mont Blanc pen and have my hair styled by José.

That day hasn’t yet come, but the future is soon.

Friday, August 31, 2007

'A Tale of Two Hubrises'

"I ain't so tough." James Cagney in "Public Enemy"

I have been feeling pretty good the last week. That sense of well being from the last death case still washing over me. Friends, colleagues, calling, sending e-mails and patting my back when I walk into courtrooms. Nice feeling to hold my head high, kind of a nice cap on all the years of misery.

I went to Pasadena to do a “duty day,” which is an obligation I accepted as a member of the County Bar panel of lawyers who represent indigent defendants when the public defender can’t. It requires spending the day waiting and responding to the courtrooms for any such matters.

I know this courthouse well. In the 80's, I spent years there in the PD office, and, since then, I’ve gone back for many cases and other duty days. I’ve had lengthy trials there, including 3 capital cases, and 3 other murder cases.

Pasadena is most pleasant during the winter, when the air is crisp and the mountains are dusted with snow. But in summer, it can be very hot. It was today, especially because the old courthouse was suffering one of its frequent air conditioner breakdowns.

After checking in with all the courts, flirting with a few cute clerks, I settled into the Public Defender library to wait for calls, hoping that none would come so that I could make progress on the tasks I had brought with me - reading on other cases and such.

At a quarter to 12, I get a call. Go to Department “_.”
The DA in the court briefs me. There’s a man in the lock-up who is a DA witness in a murder case who was subpoenaed and appeared on the day of the prelim, was interviewed by the DA, and then vanished.

A warrant was issued for his arrest and he gave the police who tried to arrest him a phony name, so he’s also going to be charged with that crime, a misdemeanor. The DA wants his bail raised to insure his presence at the next court hearing on the murder case, on September 11.

In the lock-up, I introduce myself to the man, who is steaming from more than the heat. As usual, he directs his anger at the messenger. It goes a little like this:

“Hi, the DA says you were a witness on a murder case.”
“That’s bullshit. You’re lying. It wasn’t murder, it was attempted murder and I’m not a witness, I’m the victim. They shot at me from a car and all I saw was the car. I didn’t see who did it.”

“Okay, so why did you leave the court?”
“Man, I’m no snitch.”
“Well, you’re not a snitch if you were the victim.”
“Not on the streets, man. It don’t matter.”
“The DA just wants to make sure you testify.”
“I don’t want to press charges. I’m dropping it.”
"That’s not your choice. The law says you’re a witness just like any other. You don’t get to decide.”

"What kind of law is that? I gotta risk my life and then they put me in jail? I’m the victim.”

Eventually, he tells me there’s a detective at the Pasadena PD who told him he would intercede with the DA on his behalf. I call Pasadena PD and leave a message.

In the courtroom the judge is on the bench. It is about 5 to 12 and hot. I’m dripping in my jacket and tie noosed around my neck.

I don’t know this judge. Been in his court only once, on a non-contested matter for about 10 minutes about a year ago.

The hearing begins. The DA repeats what he told me, which is information he got over the phone from the trial DA. I try to correct him, based on what the client told me. It was an attempt murder and he is the victim, not an independent eye witness.

The judge interrupts me.
I interrupt him back. “I’m sorry judge, but I felt it important to point out that the DA is relating multiple hearsay which is not accurate.”

The judge is annoyed. His voice rises to meet mine. “Counsel, you are presenting hearsay, doing exactly what you complain he is doing.”

“No. That’s not the same. My client is here, able to be questioned.”

The judge screams at me. "You keep interrupting me... Don’t show disrespect to this court, counsel. I have never seen such disrespectful behavior before... You are in contempt of court."

“Judge, I meant no disrespect. I’ve been a lawyer for 36 years and ...”

Apoplectic now, “I don’t care how long you’ve been a lawyer. Be here with your own counsel at 1:30.”

So for the first time in my illustrious career, I am being held in contempt by a judge. It is now after 12. I put in a call to two people. The presiding judge of the Pasadena criminal courts, who I’ve known for 20 years. When she was a DA, we tried a capital case, and as I’ve noted before, that creates a bond of respect. She’s out to lunch.

The second call is to the Directing Attorney of our Panel. He’s on the way to defend me.

I use the PD computer for some research. (See the quote below).

The PD’s grin knowingly at my tale. “Your first mistake was that you called him 'Judge' instead of 'Your Honor.' That’s this judge’s m.o. He’s got a thin skin, he’s 'bipolar.' Suddenly he goes off and then a half hour later he calms down." They give me examples.

Reminds me of the late Jack Tso, a Pasadena judge who also blew his stack on occasion. If he didn’t have his morning donut he chewed on the first lawyer whose case he called. Once, he jailed a lawyer who had failed to appear when ordered. He called in a jury and they watched the defendant come from the audience and his lawyer from the lock-up.

Gil Alston, also of blessed memory, was another Pasadena judge who sometimes worked his mouth before his brain was in gear.

At 1:30, my counsel and I work out a clever strategy for my defense - groveling for mercy. Painfully aware now of the ironic truth of Borenstein’s Law (clients don’t act in their best interests) I opt to let my lawyer do the talking.

The judge eventually takes the bench. He knows my counsel’s reputation. He recites for him his version of the event. Seems like he’s spent the lunch hour reading the transcript and is now “amending” it to put flesh on the bones. He makes me sound like the mad dog in the fight.

I am bubbling to a boil, but I suppress it. The judge elicits a “sincere apology” to purge the contempt.

I have two choices: contest the charge, seek a stay of punishment from an appellate court and file a writ of prohibition... or apologize and get out of Dodge.

I word my apology as honestly as I can. “... sorry if in vigorously advocating my client’s cause it appeared that I was disrespecting this court. I meant none ... yada, yada.”

So, he accepts my apology and I’m off the hook. We proceed with the witness hearing.

I finish my argument for the client and the judge grants the DA motion to raise his bail to $50,000.

The client is pissed - at me. As he’s being taken away, he whines, “Why didn’t you fight for me, man?”

Perfect. I'm almost thrown in jail for arguing to let a DA victim out of jail and the client (who by the way is getting all my legal expertise pro bono) accuses me of not being aggressive enough! What should I have done, brought a hacksaw?

Footnote: here’s a quote from a very old case in which the California Supreme Court overruled a judge’s contempt order against as defense lawyer.

“... Broadly speaking, judges are empowered to punish summarily for contempt of court in order to facilitate the orderly administration of justice... [I]ntemperate behavior lessens ... the mastery of the trial judge over the progress of the proceedings... Considerable summary power, not usually available to the officers of any other branch of the government, is therefore vested in judges.

If that power is not wisely exercised it can readily become an instrument of oppression...[S]uch a situation invites caprice ... If a trial judge had only to state that the contemnor raised his voice and twisted his features, no contempt order could be attacked...

Many of the protections provided in regular criminal cases would be rendered meaningless and the burden of proof would be sustained by the subjective reactions of the offended judicial officer.

Another consideration is the fundamental interest of the public in maintaining an independent bar.

Attorneys must be given a substantial freedom of expression in representing their clients. ‘An advocate is at liberty, when addressing the Court in regular course, to combat and contest strongly any adverse views of the Judge ... to object to and protest against any course which the Judge may take and which the advocate thinks irregular or detrimental to the interests of his client....

An advocate ought to be allowed freedom and latitude both in speech and in the conduct of his client's case.’

The public interest in an independent bar would be subverted if judges were allowed to punish attorneys summarily for contempt on purely subjective reactions to their conduct or statements.

An attorney has the duty to protect the interests of his client. He has a right to press legitimate argument and to protest an erroneous ruling.

The heat of courtroom debate, particularly where liberty is concerned, often gives rise to persistence on the part of counsel.

If the words used by counsel are respectful and pertinent to the matter before the court, it is not unnecessarily burdensome to require the judge first to warn the attorney that his tone and facial expressions are offensive and tend to interrupt the due course of the proceeding.

Otherwise, attorneys could be subjected to fines and jail sentences because of personal annoyance and pique on the part of trial judges; and these penalties could be rendered unassailable by lengthy recitals in the orders of contempt respecting the demeanor of the contemner.

There is nothing in the reported decisions or in the experience of our courts that makes necessary such an extraordinary authority on the part of the trial judge. Indeed, the recognition of such an authority would involve the surrender of a substantial amount of the independence of the bar, and in many instances would deprive litigants of a fair hearing.

[Gallagher v. Muni. Ct. (1948)]

Tuesday, August 28, 2007

My Last Death Journal - Epilogue

Can't remember feeling so ... not exactly relaxed, not wired for that. But tranquil, or maybe just calm ... kind of like you feel after an earthquake you survived after you check out the damage and decide you were lucky this time.

The decision to make it my last death case is liberating. Free from the angst of waiting for the next one to come. Cleaned up the file, caught up with bills, looked at my other cases. I've got two pending 187's, but they're the garden variety, not much at stake, just life max. That I can handle.

Played golf last week with a guy I've known for years, a former PD who told me he's tried 10 capital cases. Lost 3 to death row, and he's still taking them. Okay for him. His golf game sucks.

Sunday, August 19, 2007

My Last Death Journal - Final Entries

July 30, 2007

At a family gathering the other day some expressed an ardent desire to come to court and watch my case for a while during the penalty phase.

I tried to dissuade them for several reasons. First, I don’t want to be distracted by being aware of the presence of my loved ones. I am not “performing” but would be self-conscious - kind of the way you acted differently in Little League games when your parents were there.

Another reason is more subtle and hard to express without seeming to be mean. Court watchers - the curious and lonely eccentric people who wander in and out of courtrooms every day to watch trials just out of curiosity - are considered a bit odd.

I’ve always thought that the impulse to watch one of these trials exposes some kind of character flaw, a morbid need to dwell on someone else’s misery, to artificially inject drama into your veins.

If I was related to the deceased or the defendant, I would be offended if the trial became a spectator sport. I don’t like the idea of “Court T.V.” for the same reason. Yes, it is public, but in a real way, it is private, shameful, sad. It should be solemn, serious business - not entertainment.

Whether it is good or bad for the system or the society aside, it is simply bad manners. It is unseemly, to use an old fashioned phrase.

I mean, are there people who like to visit funerals or go to hospitals and sit in waiting rooms with families during cancer operations?

The last time family members attended one of my cases, they were most impressed with what they considered the oddity that my client (a quadruple murderer) smiled and waved a greeting to them. That they found this behavior “odd” is one reason that I am not anxious to repeat the experience. The fact is that my family and friends consider me to be even odder for living so comfortably in this kind of alien world where I am used to the idea that murderers can act and feel like people.

On the other hand:

In 1983 I argued my first capital case to the California Supreme Court in San Francisco. My wife, 3 year old son, my mother and father, all flew up to watch the argument.

Afterward, I introduced my father to some of the other lawyers who were there and they praised my work in my father’s presence.
He was proud.

That was one of the best days I’ve ever had in a courtroom.

August 14, 2007

This was not a good day. In past trials, the penalty phase was about the defendant’s life, the good and bad things that affected the issue. But DA’s and families of victims, offended that it was all about the murderer, convinced the legislature and the Supreme Court that the jury should hear about how the crimes impacted others.

The court shrugged off concerns that this emotionally charged evidence would shift the focus so drastically that the jury would become a lynch mob, acting in vengeance for the family.

The court also ignored the implication that different lives had different values. The murder of someone who would not be missed is impliedly less severe. And what does it have to do with the defendant’s culpability if he didn’t know his victim? It is purely a random and arbitrary factor to consider. Another of the many such capricious facts that make the issue so dicey.

So, today I sat through a memorial service for the victims, complete with poems, photos and buckets of tears, for the jurors who have to decide whether the person who caused the deaths should live or die.

What made it worse for me is that it is Bijou’s birthday. She would have been 62 today. So much for closure.

Tomorrow members of my client’s family may testify - if they can get transportation to court. They haven’t, so far.

August 15, 2007
4:30 a.m. Fully awake now, I hear the Times plop on doorstep.
7:30 a.m. On the cell to Bob. He’s picked up my client’s mother and sister in Palmdale and he’ll get them to court in time.
8:30 a.m. In court, we’re arguing instructions. I’ve asked for 16 that aren’t in CALJIC. Last night’s research forces me to admit that, while they’re good law, the Cal. Supremes have ruled no error to refuse any of them. Their logic is specious and cynical. My judge finally agrees to give 3 of mine, with small changes to wording. It’s enough to support my argument. Better than I hoped.

10 a.m. My client’s mother, sister, brother and wife testified today. They’re off the stand by 10:45. There were no funny little stories to bring wan smiles to the jurors’ faces or touching anecdotes. We heard all of those yesterday about the two dead victims.

It’s only that my client’s father didn’t think he was his, and his mother could barely remember his birthday, and that his sister has mental and drug problems and that his brother is a trans gender forger who came out of the lockup to testify on his way back to prison. His brother told about how the other little boys teased and taunted and threatened him and my client came to his defense. My client’s wife told about how he helped her get over her drug problem.

That was it.

12 - 1:30 p.m. Back in the 13th floor attorney room, thinking about my argument. Started thinking about it the first day I got the case - 3 1/2 years ago. Longer - since 1977 when I started to get the stupid notion to do these cases. Listened to dozens of others: Gessler, Rappaport, Overland, Rucker, Chaleff. Read many more, made my own ... filed away the mistakes and the stuff that made sense.

My notes are on my lap, not a speech, just 7 pages. I take them out, stare at them for the 50th time. Printed in bold type so I can peek while I rant, not stray too far, don’t fumble with too many silences and paper shuffling, try to sound to jurors like it sounded in my head at 2 a.m. I know pretty much what I’m going to say, the points I need to make. All I can do at this point, anyway.

Mike Adelson and Jay Jaffe are in the building, trying a Watson murder case (a reckless driving death elevated by law to second degree murder). Both know what I’m feeling, give me the pat and leave me alone.

1:30 p.m. The D.A. sets up his powerpoint presentation. His argument is full of audio-visual aids. Scanned in photos of the dead bodies, bloody and broken. His core is the video - the LASD walk through of the antique shop, china and blood, the woman’s body covered in blood, the coroner’s photo of the gash and smashed face, with audio of my client’s cop out - his denials, then his dissembling confession, “I only hit her twice.” And the second murder, the duct tape, the aspirated blood on a plastic bag ... He finishes with a slick montage of photos of the victims in life, surrounded by loving families, smiling, alive. And their tombstones...

The courtroom is dead silent forever. The jurors are stonefaced, holding back tears. The families are in the audience, sniffling.

3:15. After a 15 minute recess, I argue. What follows are my notes as I wrote them. I haven’t read the transcript yet so I don’t know how close I came to what I wrote. A lawyer’s truism is that there are 3 different closing arguments in any case: the one you prepared, the one you gave in court, and the one you begin in the car later, and give in the middle of the night and while others are telling jokes during parties and you keep revising it for the rest of your life.

Very strange feeling to be standing before a group of people who have the power of life and death in their hands ... I don’t know if I should feel honored or pitied. In some ways I feel honored because I think it is honorable to argue in favor of life.

But I feel completely inadequate to do this. I’m not eloquent like a minister or someone with a grasp of language to express profound thoughts. I’m just an old lawyer and a pretty poor one at that, as you may have noticed.

I know one thing. From the beginning of this case I haven’t misled you and I won’t now. You are people who want to follow the law and I believe you will do that by voting for life instead of death.

First, I’m not going to make an argument against the principle of capital punishment. For one thing, the law provides for it as a possible punishment.

For another, I happen to be Jewish and history has taught me that there are some people whose crimes are so enormous and lives are so full of evil that death is the only appropriate punishment for them.

If murder is the worst crime with the severest punishment, they are the rare ones who are the worst of the worst and have to die to save the rest of us.

For another thing, all the possible jurors who were opposed to the idea of capital punishment got themselves off the jury by saying so. ... (About 30 % of the 97 who were called.)

I’m hopeful that no one remains who believes that the death penalty should be automatically imposed on anyone who kills because that’s not the law either.

I want to remind you of a few of the things that were touched on when you were lucky enough to be picked for this jury. ... The judge told you that if it came to this decision, it was going to be each juror’s responsibility to decide life or death ... it has to be unanimous but it isn’t like the guilt issue of simply applying facts to the law ...

They call this decision “normative” ... that means it involves a moral choice ... a matter of values ... conscience ... yours ... each of you separately because no one can be executed without all 12 agreeing that it is the only choice.

Remember during voir dire, there was a man who said he was on a death jury and didn’t want to sit on another one because although it was 10 years ago, he still worries about his verdict?

That’s what I mean. ... You have to be sure ... very, very sure. ... that you are doing the right thing ... the only thing you could do ... that killing my client is the only solution.

And another thing ... I know you folks have gotten to know each other pretty well over the weeks you’ve been here together ... so I want you to think about this ... when you go in there to deliberate ... to talk about this decision ... be very very careful about putting pressure on anyone who is in the minority ... in order to get a unanimous verdict ... you can do serious harm to someone by making them feel like they were talked into something that is going to bother them for the rest of their lives ...

All killing is bad. ... The fact is that under the law, most people who are responsible for taking lives are punished less severely.

If a person negligently kills - in an auto accident - there may not be a crime at all. It may be civil liability. ...If a person’s negligence is extreme it may be manslaughter which may involve jail or prison for a term of years. ... A second degree murder, which involves intent to kill, but no premeditation, carries a prison sentence of up to life but with the chance of parole.

A premeditated first degree murder carries a sentence of life with parole. ... Only murders with special circumstances carry life without parole or death.

So by your verdicts you have already decided that [ ] will die in prison. He will never get out of prison. ... The question you now have to decide is whether he has to die by lethal injection or whether he will die of other causes in prison. ... He’s now 28 years old. Sentenced to life without parole he will never be free. He will be behind bars forever.

I told you I would be honest with you. I did not argue for his innocence in this case. Now I’ll tell you why.

In the guilt phase, I listened very carefully to the prosecutor’s argument to you, explaining his theories of the case. He correctly explained that to find guilt, you only had to find that he caused the death or aided the perpetrator in causing death while in commission of robbery or burglary.

Even if he didn’t plan going in to kill, even if he didn’t premeditate or deliberate, he was still guilty of each of these murders. I want to remind you of how the law defines it:

“All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree... The word “deliberate” means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. ...

“If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree...

“... A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder of the first degree.

“To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, [he] [she] decides to and does kill...”

Under the felony murder rule he was guilty of murder & special circumstances if he intended to commit burglary or robbery even if none of the other mental states were proved.

His confessions were the key evidence against him. There was little evidence linking him to the [second murder] case - [the other guy’s] DNA was there, not [his].

From the DNA evidence and [my client’s] confession, as the DA argued in the guilt phase, if the actual perpetrator was [the other guy] and [my client] was a “major participant” then he is guilty. ... That was true... for guilt beyond a reasonable doubt...

But for purposes of deciding punishment, the questions of the degree of his involvement - whether he was the actual killer or if [the other guy with him] did it - IS A BIG ISSUE

The law has a concept that applies - its called LINGERING DOUBT and it applies to the circumstances of the crime factor - even if you are convinced beyond a reasonable doubt to find guilt under the law, you may consider any lingering doubt - any residue of doubt about the circumstances as a factor meriting a vote of lwopp instead of execution.

In other words if any of you have any lingering doubt about whether [my client] was the actual killer or whether the killing was premeditated or whether he intended to kill, the law allows you to use it as a basis for voting against death.

In the [first murder] the same applies. It is clear that going into that store, he didn’t anticipate that someone was living there. If as he confessed, she surprised him and he lashed out and killed her, it is different from a premeditated deliberate murder.

A broken canoe paddle was found. [Mrs. ___] testified that there were several objects that could have been used by her to strike him in the head. ... just as he told the police happened.

Please don’t misunderstand - I’m not arguing justification or excuse or self-defense that makes him not guilty of the crimes ...

Listen to the instruction again about premeditated murder: 8.20. ... “cool” ... “reflection” ... “weigh and consider” ... “calculated judgment” ...

I didn’t argue this in the guilt phase because it didn’t matter in the question of guilt - his DNA showed he was there and he confessed to burglary and to causing her death. ... slam dunk ... for guilt ...

But the very brutality of the killing shows that it was not an act of a clear mind acting coolly and thoughtfully. ... It is a burst of violence and frustration ... striking out without thought ....

Again ... Please don’t misunderstand... I’m not asking you to excuse it or justify it ... what we’re talking about here is the degree of certainty you need to have to make a difference between sending him to prison for the rest of his life or saying he has to die now because what he did shows he is the worst of the worst and must die.

Now, I want to say a word about the victim impact evidence and the idea of closure. That was very emotional testimony we heard from the families and friends of [the two victims].

Maybe it helped them to express their feelings to you. And out of respect, I didn’t ask them any questions. I understand their grief - anyone whose lost someone they love would share it.

It doesnt matter whose fault it is, whether it is a drunk driver, or a negligent doctor or an accident or sudden illness or a long drawn out one like cancer, it isn’t fair and it leaves you with a hole in your life that nothing can replace.

It may sound trite to say this, but it is true - if ending [my client’s] life would bring back either [victim] for one more day ... or even one hour, then it would be an easy choice to make.

Closure will exist if [my client] is punished by having to spend the rest of his life for as long as he may live in a prison with others who’ve done what he’s done, thinking about the harm he’s done day after day, night after night - endlessly. ... seeing again and again in his mind’s eye the awful pictures of their broken bodies. ... hearing in his mind the testimony of how his acts hurt others ... their families and his own.

Maybe for someone with no conscience that wouldn’t be severe - but the evidence here is that he has a conscience;

The fact of his confessions shows it. People who have no conscience don’t confess. They have nothing to get off their chests. They don’t feel better when they confess.

The fact that he could not admit the extent of the injuries he caused is evidence of his conscience. ... He couldn’t face what he had done to that lady ... because he couldn’t believe that he was that person ...

Those without conscience don’t express remorse, as he did, saying how bad he felt and wanted to tell the families he was sorry. ... The worst of the worst don’t have such feelings ... don’t even feel the need to express it. ...

No, you’re right - its not enough to say you’re sorry - not enough for forgiveness - I’m not asking you to forgive him - you won’t be forgiving him for his crimes by condemning him to prison for the rest of his life.


He didn’t have a choice to be born into the family he was - his father leaving when he was 10.

Now, wait ... don’t say I’m trying to shift blame to his father for what he did ... that’s not the point... It doesn’t justify or excuse ... but it does explain something ... the child is the father of the man, they say .. And this 10 year old kid didn’t choose his father, mother, sister, brother. ... Didn’t choose to be made a ward of the court at 10 or 11...

But the little good things he did ... for his brother and for his wife ... they show that he is not all evil ... there is some compassion, some kindness, some good still inside of him ... he’s not the worst of the worst ...

The law tells you to consider his “Age” ... my client was 25 at the time of the crime and he’s 28 now. ... the law talks about whether he shows a degree of maturity and judgment ... as a mitigating or aggravating factor ... what does that mean?

I think about myself at 25 and 28 and my son who is almost 28 ... if I thought that the level of maturity and judgment I had at that age and my son has is going to be the standard, then I would have been in trouble and I’d be very worried for my son’s future. ... would you want to be judged for the rest of your life based on the decisions you made when you were 25?

My client’s crimes were not those of a man of mature judgment and adult thinking ... In the critical instants of his life he made the worst choices he could make.

Now you have a choice. You can choose another death. Or you can choose life.

You can exercise the only degree of mercy that the law allows - let him live with his guilt in prison for the rest of his life. ... That’s all I’m begging you to do.

3:45. The faces are stern, implacable. As I spoke, moving from the lectern to the wall in front of the jury box, as I tried to make eye contact with each, my spirits sank low. Few sparks from their eyes, no clue that any message was received.

In the end I was fatigued. I’d argued for a half hour at the most.

4 p.m. Jury out, excused til 9 a.m.

August 16, 2007

I wake at 5 and by 9 I’ve cleared some stuff from my desk. I walk around the house carrying 2 phones with me. A friend calls and I get him off the line.

10:30 a.m. The clerk. Jurors want “playback” of my client’s conversation with his crime partner in the jail. Not a good sign. He threatened a guy he thought had “snitched,” sounded dangerous and scary. The judge wants me there “ASAP.”

I shave, dress, drive, get there 11:45. Can’t make the DA laptop work.

12 - 1:30 p.m. Jury at lunch and so am I. Adelson and Jaffe are deep into their case. Al DeBlanc is there. Al’s another of our alums. I promise to send him copies of my instructions.

2 p.m. Jury has a new question. “Will we be polled for individual votes this time?” Sounds to me like they are near a verdict. My slim hope for a hung jury fades. They’re nervous about their security.

2:30. DA gets a new laptop. It works. The bailiff and court reporter take it back.

3 p.m. The judge lets me go home. If they have a verdict now, he’ll take it tomorrow morning.

4:15 p.m. The clerk. They have a verdict. 9 a.m. I call my client’s wife.

August 17, 2007

His wife is there. So are the families of the victim. A few DA’s have come in to watch the drama. Joe Gutierrez is there for a different case. He pats me on the back. Tammy Hope, a DA who opposed me in a murder case in Pasadena back in 1990, wishes me well. My client was acquitted, but that doesn’t matter. We got along and there’s a bond of mutual respect that lasts.

There’s a hitch. My client doesn’t want to dress for court. I go back to the little room he’s in, chained to chair. He doesn’t feel like wearing the suit. I negotiate, trying to figure if he’s about to flip on me at this late date. He’s scared, a little kid, all 6'2, 220 of him. Finally, he folds.

We wait for more bailiffs. There’s 4, but they need a sargeant. Waiting isn’t fun. When he arrives, my client is brought out, the judge, then the jury.

They’re not looking my way, a bad sign if it is one. I look down. The judge starts the ritual. Have you chosen a foreperson? Number 7, a gray faced woman lifts a hand. She’s signed the forms.

The judge unseals the envelope, checks them over. Hands them to the clerk who reads them aloud.

... Having found the defendant guilty of murder and special circumstances we set the penalty at life without possibility of parole.

... Having found the defendant guilty of murder and special circumstances we set the penalty at life without possibility of parole.

He polls them. I listen to voices, don’t look up, fearing one will say “No.” It’s okay.

My client crosses himself, asks me to get him a medical order for his ulcers. His wife waits for his clothes, thanks me.

I talk to some jurors outside and now they are different. Smiling, they look like ordinary people. The tension gone from their faces, they now seem nice, like people you might like to talk to. They ask some questions and it turns out they got what I was doing, why I didn’t argue in the guilt phase, what my client’s family was about. A couple thank me for “the opportunity” for an “interesting” experience.

I talk to the judge. He’s tired, too. He’s felt the weight taken from his shoulders. He’s not going to have to sentence a man to death.

The DA is in shock. He is fully invested in the victims’ families. I talk to a couple of them. They wanted death, but they can live with this. The lady’s daughter thanks me for not disrespecting her mother during the trial. The DA did the right thing for preparing them for either outcome. They’ll get to speak again at the formal sentencing.

I call my son, my brother, my nephew, a few friends, my investigator. I go to lunch with a friend and to the driving range to sweat, hit some golf balls, go to the market.

The world hasn’t really changed much. It just seems like it.

Monday, July 30, 2007

My Last Death Journal - Entry 4

July 30, 2007

The call came about 11 A.M. Though not a surprise, it still left me with that faintly nauseous stomach as in the aftermath of a solar plexus punch. “Verdict at 1:30.”

Getting dressed, driving, parking, walking ... all done while in that mode of hardening the bubble of preparation, mind anticipating all the moments to come so as not to react - not to allow my face or body to lend clues... not to be part of their drama. It takes that kind of effort. It’s going to be “we the jury find the defendant guilty ... guilty ...” How many times? 6. Plus “... the special circumstances true ... true ... true...”

I get to the CCB at around 1. The 13th floor attorney room is occupied by a few of the carrion who are always there waiting for appointed cases to drop in their talons.

And Frank Duncan is there.

I’ve seen Frank around the courts my entire career. He’s one of the private criminal lawyers who comes in and out of your view a few times a year. You say hi, talk about judges, traffic, old times and then he is gone.

Frank is now 79 and still practicing law, trying cases. He hasn’t changed much in 30 years - salty hair, craggy face, neat 3 piece gray suits, somewhat fastidious air.

None of the other hacks in the attorney room know about Frank. I learned about him from Dick Buckley a long time ago. Frank’s fame, such as it was, derived not from any case he defended. It came from his mother, Elizabeth Duncan (known by the lurid L.A. press at the time as “Ma Duncan”), who in the 1950's conspired to murder Frank’s pregnant wife and was the last woman executed in California.

We chat about other old times. Frank knew Johnny Marshall, Harold Ackerman and Max Solomon, some of the old legendary lawyers I ran across long ago.

He tells a funny story.

When Ackerman passed the Bar, Marshall took him into his firm to make appearances for him. On the first one, Ackerman went to Division 30 on the 7th floor of the old Hall of Justice to continue a case for Marshall because he hadn’t yet been paid his fee. When they brought the client into the court, he suddenly bolted for the window and jumped to his death.

Ackerman was terrified and refused to go back to court. But Marshall eventually persuaded him to appear once more on another case in the same court. This defendant also tried to dive out a window, but the bailiff was alert since the last time and caught him before he made it.

When Ackerman returned to the office very shaken, Marshall told him not to worry. From then on, he would only send him when clients had already paid the fee.

At 1:30 I took the verdicts and was gone by 2:30.

Saturday, July 28, 2007

Death Journal - Entry 3

July 19, 2007

Some things I have read conform perfectly to my experience of reality. “Catch-22" by Joseph Heller contained profound truths about some of life’s little ironies.

The part about Yossarian’s courageous act of helping Snowden, the crewman whose leg was bleeding. Yossarian, whose only goal was to survive, left the relative safety of his hiding place in the bomber, crawled over to Snowden, avoiding the sound of flak bursting all around. To his own surprise, he finds the courage to stay and put a tourniquet on Snowden’s wounded leg. He is quite proud of himself for overcoming his fear to help a colleague in distress. But Snowden keeps saying he is cold, although he is wearing a warm leather flight jacket. Yossarian unzips the jacket — and Snowden’s guts flow out into Yossarian’s hands as Snowden dies.

Every time I do a trial like this, I feel like Yossarian.

I am using all my skill and experience to make small points, exposing minor truths that poke tiny holes in the DA’s overwhelming case – some little factoid that runs contra to his theory, for which there is otherwise ample evidence to support.

I had a couple of days like that yesterday and today when the DA began to put on his case. I made a few small points along the way — which made the score something like DA 35, Me 3.

Years ago, Charlie Gessler came into the P.D. lunchroom with his usual styrofoam coffee cup and cheese sandwich and was teased about the horrible case he was defending for the last several weeks. He client was called “The Skidrow Slasher” if that gives you some idea. So Charlie comes in and sits down in his usual spot and one of the wise guys snickers, “How’d it go today, Charlie?” Charlie nods slightly, “Had a good morning. Think I developed an argument on the [gun]use allegation on count 12.”

I just gulped. It was the best example of what it takes to do these cases. The task is how to get the “best result” possible — which may be only winning the use allegation on count 12.

The problem is that it takes a rare mind state to keep that up for very long. Thirty six years is way too long. It wears you down.

July 23, 2007

The paradox of defense lawyering is this: we are by nature competitive sorts who want to win all the time. But the very definition of our sport forces us always to be on the defensive.

Like most lawyers I know, I feel best when aggressively cross-examining a dissembling witness or strenuously slicing apart the DA’s case in argument.

But many of our cases don’t lend themselves to attack. The hardest of the cases — capital murders — are so delicate that the defendant’s lawyer can’t be aggressive for fear that he will lose all credibility if the jury rejects his argument for innocence and then he has to plead for his client’s life in the next breath.

Being on the defensive — always finding excuses, justifications, mitigation — is a wearying task. In my next life, I would love to be a DA, a self-righteous, smug, American flag waving crew cutted ass who wins all the time and gets pats on the back from cops, vengeful victims, and the adoring public.

July 28, 2007

The attorney room on the 13th floor of the CCB in downtown LA is a bag of mixed nuts. I never liked the place much. It is a poor substitute for the PD lunchroom of my youth. It was also chock full of nuts, but they were far more interesting back then. I have considered that my memory of halcyon days is by definition clouded. But even so, it was a far, far better place and time.

The younger crowd are mostly 3rd raters, never-will-be’s, pretenders, wannabe “real lawyers” whose claims of seriousness are unconvincing.

When one of the old timers wanders in, it is mostly sad - like Bull Durham playing in C Ball must have felt seeing a former big leaguer trying to hang on for another shot, whiffing at pitches he used to rip.

I hadn’t been in trial in the CCB for years until this one and for the last 3 weeks, I’ve spent my noons there. Bernie Rosen is also in trial and I reminded him about a funny story from Lincoln Heights circa 1970. (I’ll tell it one day). Joe Orr spent his time dozing, not much different than when he was a DA back when.

The CCB is like visiting New York: it is dirty, depressing, inefficient, inconvenient, expensive — but there is an undeniable buzz in the air that lives on the edge of something happening.

It is where The Manson Family, The Night Stalker, Bianchi & Buono, The Alphabet Bomber, The Ninja Killers, The McMartins, and OJ were tried and the cameras are there again for the latest celeb circus. In 106 - right next door to my trial - the Phil Spector show is continuing its run.

Like steaming ordure, it’s drawn flies - oddball Hollywood types, “journalists” the “” include Dominic Dunne, Vanity Fair’s nasty poodle, a shriveled, bitter little man whose trial reportage exorcizes his grief and guilt about his tragically murdered daughter. More precisely, the jury ruled her death manslaughter, and he has never forgiven the system.

Phil’s team of lawyers includes two friends of mine, Brad and Roger, who are the real deal, and Cutler, the NY mouthpiece of John Gotti, handpicked by the client in a predictable lack of judgment that stands as additional proof of Borenstein’s Law. Cutler looks like Mussolini and apparently has similar personality flaws which became apparent early in the trial. His style - a cross between Yankee fan and cabbie - grated quickly on the LA judge, staff, and jury. He was quickly benched in favor of the real lawyers on “the team.”

Phil has spent his lunches dining in the 13th floor attorney room instead of venturing out of the building or going down to the 1st floor cafeteria where he belongs.

I was surprised to see him there, violating the unwritten rules of the place. It is meant to be a sanctuary, a locker room for defense lawyers, who can hide and rest between 12 and 1:30, whine about bad rulings and stupid clients, maybe prepare for the afternoon trial session by reviewing notes or reading transcripts.

But there was Phil, occupying one of the 2 conference size tables, along with his 2 enormous “bodyguards,” a young blonde (who I am told is his “wife”) and frequently, one or two “supporters.”

None of the otherwise combative defense lawyers dared to intervene with objections to this breach of etiquette. Really, they were flattered to be so close to this famous guy so they could impress friends and family with their inside info - “see, I’m not the hack street lawyer you think I am.”

Okay. So, here’s mine. Phil is like a “specter,” a ghostly remainder from the 60's. He reminds me of Norma Desmond and I imagine his mansion as something like hers - the death of Lana something like Joe’s. Phil is an equally absurd looking person. His hair is a Beatle cut or like Sonny Bono’s (circa 1970) but his face is that of a Jewish man in his late 60's. He dresses each day in a long frock coat with flared pants and high heel black zipped boots (which raise him to about 5'6").

His huge protectors, offensive lineman in black suits, make Phil look even smaller in the crowded elevators and halls. Phil walks with a stiff-legged gait and has the fixed, blank gaze of a Parkinson’s sufferer. When he speaks while eating, he sometimes drools.

Despite his wealth, fame and apparent genius in his field, his commentary about the evidence is typical of most defendants. The DA’s case is weak, the judge is biased against him, the defense witnesses prove his innocence. Pretty routine.

One day he bemoaned the judge’s exclusion of his accomplishments. How can he say it is “irrelevant” (the word spat out contemptuously) that I revolutionized the music industry as the greatest producer of records, working with The Beatles, Stones, The Righteous Brothers ... and made millions...?

He was particularly offended when he heard that a commentator called him a “has-been.” Were Einstein or Mozart has-beens just because they did their best creative work before they were 30 and then spent the rest of their lives being recognized for their genius?

One day I asked him if he had seen the PBS documentary about Les Paul. He had. I asked him if his “wall of sound” was based on Les Paul’s work, curious whether his ego would permit such a suggestion.

Yes, he said, he was influenced by Les Paul, but was quick to define Paul as “an inventor” rather than a musician. Paul never played very good guitar and Mary was the real musical talent. When she died, Les was lost.

In an effort to impress Phil with my own vast musical expertise, I said: “Well, what I remember most is that your sound and his both filled all the spaces, left no gaps of silence in the music - that was what I liked.

To my surprise he agreed, and even more shocking, he thanked me.

He’s probably a pretty nice guy after all.

Wednesday, July 18, 2007

My Last Death Journal - Entry 2

July 17, 2007
We finally have a jury of 12 and 4 alternates. We began with 100 in the panel and ended with 3 left.

It was grueling, fatiguing and more frustrating than any I’ve done in the past. After reading the questionnaires, it was clear that 20% + were “PCC’s,” that is, people so averse to the death penalty that the judge was likely to grant a challenge for “cause” by the DA.

Efforts to “rehabilitate” these jurors by questioning them, educating them about what would be and would not be expected of them always has been a longshot.

But as we proceeded, the list of PCC’s increased because many who had stated on questionnaires that, though squeamish about the death penalty, they could be for it is some cases and therefore would pass the cause challenge, now sitting in the box took cues from others and escaped by claiming an epiphany — “hearing the other jurors, I realized that I could never vote for death.”

That became a mantra and they realized that if they stood this more solid ground, they would avoid service.

Then there was a guy who had sat on a death case in 1984, had voted death, and now said he did not wish to sit on another one because his verdict had haunted him all these years.

A later juror took the cue and said that he’d been thinking about what that man said and now he couldn’t do it either, even though his questionnaire indicated otherwise.

The judge had denied my motion for sequestered jury selection. Back in the day, the California Supreme Court had required it; but that was overturned later because it was too slow and helped the defense too much. So now every juror gets educated by others on what to say to stay on or get off.

In the end, the judge excused more than 30 “anti-death” jurors, about a third of the total.

My anger (barely suppressed, I admit) was directed toward those decent liberal Westsiders and African American men and women who got themselves booted this way.

The next time you hear liberals and Blacks moaning about prejudice, intolerance, the “system,” remember all these decent people eager to give their places to people willing to lie to themselves and to the court in order to vent their rage.

On the other side, about 5 of my challenges for cause were granted. Those who were clearly biased in favor of death but answered they were willing to consider voting for lwopp if convinced there was enough mitigating evidence passed cause and I was forced to exercise a peremptory challenge.

Each side gets 20 challenges (down from the old law which gave 26).

I used up 17 and the DA 14, when we each accepted the jury. I couldn’t use all my 20 because I knew which jurors were coming next and the DA would have been able to kick off any of the equivocal jurors in favor of worse ones coming.

The order of jurors was “randomized” by the computer and the order is just a matter of luck. Given the need for the defense always to “kick” more people than the DA, the luck or bad luck of the draw plays a part.

As it is, we wound up with a jury of mostly “3's” with a couple of “2+’s” and one “4," at least by my rating. There are 4 African Americans - 2 men, 2 women.

It’s the best I could do, considering.

Now comes the hard part — the evidence.