"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)]
Friday, August 31, 2007
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.
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.
Choices
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.
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.
Choices
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.
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