The mad hatter as counsel for the accused

It takes a certain amount of mental illness to be a criminal defense lawyer. The old public defender’s office was a bag of mixed nuts from the top down. Paranoia was practically a job requirement.

The system and everyone in it was against you. You walked into a courtroom and were met with the cold blast of hostile frost just because you were there to shake things up. If you could handle that, day after day, year after year, you could survive; if it gave you a rush, you could be a star.

You had to be able to stand losing most of your cases, even the rare ones where your client actually might be innocent. You have to be able to restrain your natural aggressiveness and competitive juices because effective defending is often a matter of conceding the high ground to the righteous prosecutors.

Most of the lawyers I have known in this business are severe eccentrics, minority thinkers who, to paraphrase RFK, don’t look at things and ask why, but rather "why the fuck not".

The guy representing my client’s co-defendant in this current trial seems to be close to the edge. He’s got the wild bug eyed look of the heroically messed up paranoid.

When he fails to make a point with a witness due to his inability to overcome the D.A.’s aggressive and persistent petty objections to his poorly drafted questions, he becomes petulant, accusing the judge of bias against him personally, and begins to sulk. Since most of his meanderings and pouts come near the end of a long day in trial, I suspect that his problem is medical.

Early in the day, he is merely scatterbrained and borderline incompetent. But as the clock nears 4 p.m. each day, his affect becomes stranger, his concentration even less focused and his questions less coherent. "Which direction was the car going which was going toward Van Nuys Boulevard?" he asks for the third time. "Objection: asked and answered, vague," the DA shouts. "Sustained," says the exasperated judge. Some jurors giggle.

The lawyer looks confused, as if shocked by the injustice. He asks the same question with the same result. He tries to bring out an inconsistent statement made by the witness at the preliminary hearing, but fumbles it so badly that the D.A.’s objections are sustained. When the D.A. is able to refer to the same prior testimony on another point with the proper foundation, he complains again of bias. When, after the jurors are excused, the judge warns him about his behavior, he stalks out of the courtroom.

The D.A. in her own paranoic way, thinks he is acting this way in a clever ploy to gain a reversal after he is committed to an asylum when the case is over. I feel sorry for the guy, although his bumbling may do some harm to my own case.

Of course, there is a chance that his client may be acquitted and mine convicted, despite or because of the lawyer’s pathetic performance. In the insane world of our legal system, skills and results are often inversely proportional.

Parannoyed

Paranoia is one of the prime constants of Borenstein’s Law. The Fates and The System all too often conspire to bring our clients down despite the righteousness of their cause.

We are attuned to this defense because we understand paranoia all too well. From the very start, we have felt its force. When we enter courtrooms for trials, the shock wave of contempt directed our way is palpable. Court staff – judge, clerk, bailiff, D.A. – irked that our presence means work and stress, often a tedious trial with a recalcitrant defendant making spurious arguments that must be tolerated.

Yet, the finest rage is directed at the lawyer, not the client. We are to blame. We have failed to “control” the client, to make the case go away by accepting the generous sentence offered. And we will be reminded of it and punished for it all the time we are there.

So I get it when I’m appointed to represent Horace. He threatened to kill his girlfriend and her (probably imaginary) lover, who he thought had come through the bedroom wall and was hiding in the mattress. Horace has been pro per for months beating his weary head against the legal wall. The police, DA, judge, and his public defender had formed a cabal to help the lovers get rid of him.

Horace has made another fateful choice. In a moment of coherent thought, he’s conceded his ineptitude. In a moment of extreme mental fatigue, I accepted the case.

Like most pro pers, Horace has made a hash of all the documents in the file. They are soiled, dog-eared, a mess. I spend too much time putting it into a semblance of order.

Horace has serious problems. He’s charged with PC 422, which used to be called “terrorist threats.” That title was a bit hysterical, so the legislature changed it to “criminal threats.”

It is a crime to threaten harm, even if you don’t really intend to carry it out. If the target thinks you mean it, you’re a felon.

Horace has a bad record. In 1994, he tried a “till tap,” a grand theft of a mini-mart clerk. He got probation. Two years later, he tried it again, and this time there was a struggle. That was a robbery, and he got 2 years for it.

The prior “serious felony” carries a mandatory 5 years consec, and it is also a strike, which doubles any base term and requires doing 85% of the time before parole. His max is therefore 11 years.

At the prelim, his girlfriend Alma, the victim of the threat, testified that on Saturday, Horace had accused her of her tryst with the wall invading mattress hiding guy. Horace had been drinking, and she assured him that he was deluded. Horace then ordered her to leave, saying he would get a gun and shoot her.

Sensibly thinking to spend the night at her mother’s to let Horace sober up, Alma called her mom, who panicked and called the cops. When the cops arrived, Alma didn’t tell them about the threat, because, she testified, she didn’t want Horace arrested. But when she came back the next morning and noticed that Horace had slashed the mattress, she was angry and concerned. So she called the cops and told them about the threat from the day before. The cops came and arrested him.

Alma testified that Horace was not a bad person. He only got crazy when intoxicated, and that hadn’t happened until he lost his job and got depressed. They’d been together for 4 years and he hadn’t been abusive toward her.

I get along well with Horace. He’s been chasing his tail trying to prove tangents. I pursue his diversions, but keep my eye on the crux – the guy needs help, not prison. No history of domestic violence or abuse. He was depressed and went a little nuts. Who hasn't, in a fit of momentary anger, yelled "I could kill you" to a lover ... or a teenager ... or a client?

The calendar DA agrees. He’s been coping with Horace for months and knows he’s more cracked than bad. But his office wants the 5 year prior, so he offered low term (16 months) + 5 years. The law forbids judges from discretion. The DA has all the power and they won’t budge. The DA’s office is suffering from its own paranoia. If they are lenient with this crime and the defendant goes OJ, they might look bad.

I do some investigation, research, subpoena records from prison and his job, verify both his mental illness, drug & alcohol problem, and his work history. I get a shrink appointed. His report is no help. Horace hears voices, hallucinates when loaded, but he’s sane and if he did the act he must have had the intent to do it. Thanks.

So we go to trial. It is a short one. One day to pick a jury, one day for the DA’s case, a half day to argue. They go out at 11 and return at 12. NG.

The trial DA says, “See, I told you there was nothing to worry about. Justice prevailed.”

Sure. No problem. Just a few sleepless nights worrying about every decision. A sore neck from keeping Horace from screwing it up. Second guessing myself every inch of the way. Thinking something was going to go wrong. Hoping for the best and preparing for the worst takes it out of me. The NG is a relief, not a thrill.

Horace can get his own help. Maybe. I’m beyond help. So is The System.