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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.

Friday, July 13, 2007

My Last Death Trial Journal

July 13, 2007
I’ve been in trial now for about a week. It’s been about as I pre-experienced; that is, I’m just as miserable as I thought. All the analogies I’ve used to describe death trials proved as applicable as always — like brain surgery, bomb disposal, or jumping from a skyscraper without a parachute...

We’re still in voir dire. We started with 100 in the panel who were pre-screened for availability for 25 court days up to ‘unlimited.’ There were some ‘hardships’ anyway and 3 who couldn’t find their way to the courtroom the first day.

About 97 filled out the questionnaires and I spent all last weekend reading them and categorizing them according to the system I’ve used for all my trials.

First, I decide which will be challenged by the DA because they refuse to vote for death in any case (PCC’s). On the opposite side are the few who assert they would always vote death, those I will challenge (DCC’s). Then I rate each on a 1 to 5 scale: 1 = worst for defense; 5 = best. The hope is to wind up with no 1's or 2's, at least one 5 or 4. 3's are acceptable and those usually make up the vast majority of jurors who are accepted. (As I question them orally in court, watch body language, reactions to others, I add + or - and up or downgrade).

It’s very fatiguing for me, and very subjective. Oh and very uncertain.

The problem is that 3's are those who claim neutrality. They promise to keep an open mind, consider all options. By definition, they are mostly people who don’t think very much about serious things and that makes them dangerous. It is very much at the heart of what is wrong with the system — the very qualities that make someone a “fair” juror also makes the system impossible to predict. Even the DA (this is his first capital trial, so he is enjoying each revelation) called it a crapshoot.

It’s been about four years since my last capital trial and my first impression from the questionnaires is surprise at the number of ‘PCC’s’ I’ve noted — about 20% of the total say they are ‘opposed’ and could not vote death in any case. Another 5 or 6 are opposed, but could consider it in ‘some rare cases.’ Seems to me that the pendulum of public opinion is swinging against the death penalty — to the extent that this panel is representative of the community. Sure, you have to consider that these people are looking to avoid serving on a 5 week murder trial in the middle of the summer and the responsibility of deciding the punishment.

Which brings up an interesting issue for me. It’s always irked me that those opposed to the death penalty are so willing to hand the job to others who are willing (and in some cases, eager) to kill. It’s frustrating to try to ‘save’ one of these decent, scrupled people. I lecture them on the procedure, which allows them to avoid voting for death by using any one of many rationales — it’s a purely subjective opinion and nothing will force them to vote for death (another flaw in the system, actually, because it makes the process random — pick five different juries and you might get some death and some life verdicts).

So, I lay into this one woman. A nice Westside lady with a BA, who is about to escape. She’s unmoved by my lecture, says, “I can’t vote for someone’s execution. I couldn’t live with myself.”

“So what you’re saying, then, is that you’d rather hand the chore to someone who is more than happy to do it. Does that make your conscience rest any easier?” It’s like being assigned to a firing squad and handing your gun to someone else to do the dirty work.

She’s not happy with me. The hell with her. She’ll go to her comfy home and talk about the wonderful experience she had on jury duty on a death penalty case and her husband and friends will tell her how lucky she was to avoid the stress.

At some point, I had to let them know what the case was really about, without euphemisms, so that when the evidence came — with the bloody photos and all — they wouldn’t form a lynch mob. So I describe the crimes to them ... a woman is beaten to death and robbed ... two month later a 72 year old man is stomped to death and robbed .... “Can you still keep an open mind?” The juror I’m talking to blinks, gulps “Sure.”

Later, a couple of jurors take seats and say things like “On my questionnaire I said could be fair, but now that you explained the details of the crime, I don’t think I can.”

Good job, Mort. You’ve turned a 3 into a 1. What the hell, they would have screwed you anyway. But maybe not. In the past, some jurors who said they ‘favored’ death got on and voted life. When it came down to it, they just couldn’t do it.