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.