American Pride

Michelle Obama’s been taking heat from the right wing media & radio nutties for saying that in this campaign she’s felt proud of America for the first time in her life.

"What?" the super patriots howl, "Nothing in her lifetime? Typical liberal anti-Americanism !"

The candidate’s spinners have been frantically trying to mend the perceived gaffe — "She really meant that she’s proud of her hubby," some have whimpered.

Wrong answer.

I completely agree with Ms. Obama.

She was born two months after JFK’s assassination. Apart from the passage of the Civil Rights Act when she was about 2 years old, the moon landing when she was 5, and the U.S. victory over the USSR in hockey when she was 16, what has she experienced to make her proud of her country.

Let’s see: She’s lived through the following tragedies:
Race riots (Watts, Detroit, etc.)
1968 (MLK, RFK, Chicago, etc.)
Viet-Nam
Watergate
Disco
The Iran Hostage Crisis
the Reagan years ("Greed is good")
AIDS
Serbian genocide
Bush 41
African genocide
The Savings & Loan Scandal
OJ
Michael
Monica
Bush 43
Iraq
Katrina
Hilton, Spears & Lohan
the Home Mortgage debacle.

Makes ya proud, huh?

Random Thoughts From My Calendar

February 8, Friday:
I meet a San Francisco habeas lawyer to talk about a couple of cases I have a "past" with. More about the details at some future date.

February 11, Monday:
Spend the day in court in the second day of a preliminary hearing that the D.A. had estimated at one day. Because of her absurdly low estimate, the judge was peeved that I spent so much time in the tedious job of cross-examining the many witnesses she decided to put on. At 4 p.m., the judge recesses the case until the 28th, when we will resume.

February 12, Tuesday:
Lincoln’s birthday - a court holiday. (They also take 2/18, next Monday - President’s Day). I spend it preparing billing and filing.

February 13, Wednesday:
I appear in Van Nuys to represent my client who had sex several times with a 12 year old girl. He is 40. He can’t quite understand why the D.A. wants him to do 11 years. He told the appointed shrink that he had drunk 36 beers before the first time, 15 the second time, and 9 the third. The shrink thought he was exaggerating - about the number of beers. I wonder if he had to drink less each time to get in the mood. I give him until the 27th to decide whether to take the deal or coerce me to trial.

February 14, Thursday:
I spend some time watching Roger Clemons squirm before a House Committee, answering their softballs & innuendos. These congressmen all claim to have been prosecutors in their youth, but none can ask a decent lawyerlike question to a witness. Of course, like all prosecutors they only know how to ask leading questions prepared by their staffs which they’ve never seen before. Given a time limit of 5 minutes, they ask one 5 minute question, which is really a statement or argument followed by "Isn’t that right?"

February 17, Sunday:
In the L.A. Times, there is a story about California prison inmates who have served more time than they should due to incompetent prison officials who can’t understand the complex sentencing laws. I sympathize. I don’t understand them either. There are so many enhancements and amendments to the statutes that no one involved can accurately predict any sentence.

Even misdemeanors are a joke. On a DUI, where the stated fine is, say, $300, the total cost to the defendant is over $1000 because of penalty assessments - like lab costs, police education, ink, air, whatever.

Super Tuesday

While preparing for an upcoming trial, I leave one ear open for the political shows. As proof of my ability to multi-task, this is what I (think I) heard:

MSNBC: "... Based on our exit polling we are calling the state for McCain because none of the Huckabee supporters could find the right polling place..."

CNN: "... On the Democratic side, exit polling showed that Obama was preferred by people who described themselves as ‘cool dudes’and Clinton was favored by people who described themselves as ‘blondes.’..."

ESPN: "...Clinton won Massachusetts because of big margins among sports fans who used to boo Jim Rice and burn crosses on Bill Russell’s lawn..."

PBS: "... Obama won North Dakota and Utah because of overwhelming support of African American voters — both of them... This breaking news, the Black voter in Utah has been deported..."

CNN (Lou Dobbs):" ... Clinton is dominating the Hispanic vote in California, except for the one young Hispanic male who can’t get a fake driver’s license..."

MTV: When asked if Clinton’s wins in New York and New Jersey could be seen as a repudiation of his endorsement of Obama, Robert De Niro asked, 'Are you talkin’ to me? He insisted again and again that "He’s good, yes he is, he’s good'..."

FOX: "... As Criswell predicted, tornadoes in Tennessee suppressed the vote except for Huckabee supporters who saw it as a sign from God ..."

MILITARY CHANNEL: "... It was a night for home state loyalties: Huckabee and Clinton won Arkansas, Clinton also won New York, Romney won Massachusetts, Obama Illinois ... and McCain won Iraq and Afghanistan, narrowly lost Viet Nam, where he was fondly remembered, having resided in Hanoi for five years..."

Other than those developments, the highlight of my day was leaving a rollerball pen uncapped in the pocket of the first new dress shirt I've bought in a year.

The best news: Tomorrow not super Wednesday.

Seems Like Old Times

I can keep silent no longer. Politics is not usually my blog fodder, but sometimes I simply have to stand up and squawk.

Today it is mostly the Obama thing. I’ve heard and read some of my generation talk of him as the ghost of JFK and /or RFK spectrally merged with the soul of MLK.

I admit that when I listen to his speeches, I feel a chill breeze that often accompanies ghostly visions. I get a flashback to the long suppressed tingle my people felt when those apparitions first spoke to us. I was still in high school when I first heard the word "charisma" in the summer of 1960 after JFK’s speech accepting the nomination. From then on, words like "the torch has been passed to a new generation" ... "ask what you can do for your country" and "I have a dream," were intoxicating ... yes, I blush to say, inspiring.

How much substance there was beneath the soaring rhetoric was not in issue back then. That feeling is like the hope of puppy love - it blots out all reason, resists logical analysis, thrives on chemically induced passions.

By the time I graduated law school, eight years later, all such passion had been sapped. We had barely survived the macro i.e: BIG events: The Bay Of Pigs, The Cuban Missile Crisis, The Dallas Weekend, The Warren Report, Goldwater, The John Birch Society, Viet-Nam, Governor Reagan, Mario Savio, Watts Riots, Detroit Riots, Stokely Carmichael, The Black Panthers.

Then came 1968.

The year began by cruelly reviving some of our hopes. The Prague Spring promised freedom in Eastern Europe, Gene McCarthy defeated LBJ in the NH primary & RFK entered the race. LBJ quit. By the end of the summer, while I studied for the Bar Exam, any residue of hope was gone.

We turned away from it all. Some time later, while moving in with Bijou, I found an old college textbook: sociologist David Riesman’s "The Lonely Crowd."

Riesman divided personalities in three general types: Other directed, Outer (or Tradition) directed, and Inner directed. His theory seemed apt to what happened in the following decades. Most in my generation spun inward for satisfaction, first to drugs, sex, music, "self-realization," then to career and acquiring things, and eventually to outright greed. It was a dizzying trip from "I have a dream" to "Greed is good."

By the 90's we were ready for Bill Clinton. His style was a stew of JFK’s voice, gestures and virile persona calculated to attract listeners to his earnest caresses. Like the therapists most of his generation trusted, Bill convinced people (mostly women and minorities) that he heard, understood and cared about each of them, one at a time.

I never felt the magic. I had watched his rise as a "new democrat" in the DLC, knew that he was not about ideals or visions, but compromise and finding ways to win. Not that there is anything wrong with that ... in fact, it is a fine strategy – as he proved. But it is not "inspiring," not likely to move a generation to action. It is notable that Clinton achieved most while Congress was in Newt Gingrich’s control, between ‘95 and ‘97.

After abandoning his "radical" health care plan, he admitted that "the era of big government was over," and got do-able things done: he balanced budgets, reformed welfare, made trade agreements and crime laws, embraced globalization and technology. He was credited for prosperity – which was in part fueled by the disintegration of the Soviet Empire’s threat that permitted lowered defense spending and the tech bubble.

Bill Clinton’s willingness to find a "third way," a strategy that was more cynically labeled "triangulation," also permitted him to raise more campaign money than any Democrat before him. His policies were not threatening to corporate contributors and they preferred him to riskier alternatives on the Left. Positions were calibrated by polls and focus groups to a finer point than ever before, straddling the Center with deft balance.

Bill’s eventual fall was the stuff of Greek Tragedy. Like his model, JFK, his womanizing, ruthlessness, deceptions, were the flip side of his character. But unlike JFK, his times did not permit concealment until after his legend was secure. Ironically, by legitimizing the politics of personal appeal, Clinton opened himself to scrutiny of his personal flaws. Character would now be fair game and whether we would lose the "great" leader in search of the "good" person would be a question.

Now we find Obama presenting himself as the leader who can heal polarization and inspire a "new generation" to believe in the democratic illusion: that government can solve problems. He wants to change direction, not only from the Bush mess but also from the style of creating "wedge issues" that stir anger against ... the enemy. His"story," his appearance and his demeanor all personify the difference in a way reminiscent of TR, FDR, & JFK.

When he speaks, those of my generation can’t help but think of him (wishfully) as the shocking proof that we were right after all back when we were young — integration, optimism, public service, good faith, eloquence, excellence, ideas — they can lead to progress.

But now the inherent filth of campaigning in a democratic election is testing that wish. One of Borenstein’s favorite Laws is that anyone who wants to be president should be suspect. Obama certainly "has the bug." He wants it bad. In recent debates, he’s played the dirty game, rising to the bait all too readily, risking everything, exposing his weaknesses.

A recent New Yorker article pinpointed the theoretical differences between Hillary Clinton and Obama. As defined in a recent debate, Obama sees the presidency as the pulpit to inspire movements for positive change; Clinton sees it as a seat of limited power to do enough to get re-elected.

My suspicion is that, although we always seek the inspirational leader, the fact is that the pragmatic compromiser almost always accomplishes more good.

The trick is to find one who can do both. Inspirational leaders can only move the ball when events conjoin to form strong coalitions, dissolving the usual American public’s polarized state of apathetic skepticism. When the stars align, as for a few years for TR, then for Wilson and again for FDR and even LBJ (from ‘65 to ‘66), the ball can be moved forward in greater increments.

2008 seems to be a time when the seas are ready to part. I might even say that if it doesn’t happen, the Democratic Party should declare bankruptcy and flee.

Yet, it can happen. If Clinton and Obama scratch each other’s eyes out and if Clinton wins the nomination, alienating Obama and his base; and if, say, Romney is nominated, the scenario might make him the candidate of "change" and her the return to the bad old days.

What a revoltin’ development that would be.

"The best of times ... the worst of times ..."

The U.S. Supreme Court accepted cert on a death penalty case arising in Louisiana which will provide an interesting test for the newly constituted Bush / Roberts court.

The defendant is appealing a death sentence for the crime of child rape, not murder.

For most of man’s history, capital crimes included any "felonious" (i.e., serious) crime. As Charles Dickens observed, writing about the late 18th Century custom,

"[T]he hangman, ever busy and ever worse than useless, was in constant requisition; now, stringing up long rows of miscellaneous criminals; now, hanging a housebreaker on Saturday who had been taken on Tuesday; ... today the life of an atrocious murderer, and tomorrow of a wretched pilferer who had robbed a farmer’s boy of sixpence." ("A Tale Of Two Cities")

But after Caryl Chessman was executed in California in 1960 for multiple kidnap rape / robberies amidst public outcries, the Supremes ruled it a violation of the 8th Amendment to execute where no murder occurred. Chessman had been executed under a law enacted in the 1930's. California, like many other states, had made kidnaping itself a capital offense after the notoriety of the Lindbergh case.

A few years later, The US Supremes overturned a Georgia law permitting execution for rape of an adult (the victim was actually 16 years old) as "cruel and unusual punishment."

That has been the law in this country since. Now, as in the aftermath of the Lindbergh case, rage against abductors and molesters of children have led legislators in several states to reinstate the death penalty for such crimes.

Whether the Supreme Court, as presently constituted, will "honor precedent" as the recent nominees, Alito and Roberts, promised in their confirmation hearings, or will concur with their brethren Scalia and Thomas in a "strict interpretation" of the Constitution as it was intended in in the 18th Century is in serious doubt.

Passages - Other Thoughts

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

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

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

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

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

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

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

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

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

Passages

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

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

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

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

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

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

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

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

Vacation Over

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

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

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

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

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

Was she sending a message?

Lights, Camera ,,, Your Witness

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

I was particularly interested in the young guy who was directing the piece. While the others were responsible for their particular roles, each came to him to make the final choices about all the details that seemed to be critical to the success of the project. Though there were suggestions and alternatives offered from all sides, his was the final word each time. Even for a one day "shoot" of an 8 page script on a mini budget, he had to make decisions about almost every aspect of the work. I couldn’t help comparing his job to mine.

Every case, especially those that come to a trial, involves hundreds of similar decisions. A "story" has to be told, usually a mystery. Sometimes a whodunnit, or why, or how, but always some riddle that has to be decided. On occasion, the trial becomes a thriller or a comedy and almost all criminal cases have elements of tragedy.

The lawyer is performing, orchestrating by his questions, his arguments — molding a "script" for his audience. Where should the emphasis be placed? How should the scenes be set? It is a performance that demands a certain amount of "craft."
But there are certainly differences.

For one, the director of the film can shoot his scenes in alternative versions and then edit at leisure to tailor his story. The performance of the trial is more akin to a "live" show. The lawyer has to edit on the fly, if at all, by trying to keep out "bad" evidence, to prevent blurted deviations from his theme.

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

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

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

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

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

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

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

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

PD Blues

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

After I overcame my initial terror, I loved being a public defender. After about 10 years, it began to wear on me. When people asked me how I liked it, my standard line was: "I hate my job but I love my work." The distinction was important. A job is something you have to do to earn a living; "work" is your "profession."

The "job" requires swallowing the self-righteousness, hypocrisy, bureaucracy, the corrupt and dishonest system, shaving every day, driving in traffic, paperwork, routine.

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

The rare "thrill" comes when you win a jury trial (win means getting a better result than you were told to plead to before trial). You talk to the jurors afterward and they thank you for "the experience." The judge grudgingly smiles and compliments you for doing what he thought was impossible. Even the DA, your opponent, may gain respect and forge a lasting friendship that only bloodied combatants can share.

And maybe the biggest kick is the ride in the elevator to the office where you can walk down the hall and shout "NG," take the back pats and dump the file into a box.

Every lawyer I know likes to talk about their trials or other trials they heard or saw or were told about. Those are the vivid memories that keep them alive. Few of the clients who took deals make good stories.

The Big Gulp

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

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

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

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

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

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

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

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

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

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

In The News:

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

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

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

It Ain't Me, Dude

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

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

"Early one mornin' while makin' the rounds

I took a shot of cocaine and I shot my woman down

I went right home and I went to bed

I stuck that lovin' 44 beneath my head

Got up next mornin' and I grabbed that gun

took a shot of cocaine and away I run ..."

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

"...Into the courtroom my trial began

where I was handled by twelve honest men

Just before the jury started out

I saw the little judge commence to look about

In about five minutes in walked the man

holding the verdict in his right hand

The verdict read in the first degree

I hollered Lawdy Lawdy have a mercy on me

The judge he smiled as he picked up his pen

99 years in the Folsom pen

99 years underneath that ground

I can't forget the day I shot that bad bitch down..."

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

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

And Dylan summed up my life when he wrote:

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

Woes is me

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

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

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

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

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

The precious gem of Time is frittering away...

My Week - In and Out of Courtrooms

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Celebrity Crime Conspiracy?

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

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

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

Celebrity crimes have always been entertaining to us.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

'A Tale of Two Hubrises'

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.