WEEK TEN

14. Criminal Litigation

14.3. Prosecutors in Their Own Words (Baker)

Chapter Three: Tactics

After all the plea agreements are madewhich accounts for 85 to 90 percent of the prosecutor's caseloadhe or she is left with,the cases that must be taken to trial. It's not easy to win a jury trial. According to Newman Flanagan, executive director of the National District Attorneys' Association and the president of the American Prosecutors' Research Institute, the conviction rate in jury trials for prosecutors nationwide averages only about 62 percent. "You ask the public what the conviction rate is in jury trials," laughs the former district attorney of Boston, Massachusetts, "and they will say it's upwards from 90 percent. When they hear that 62 percent figure, they go, 'My God! That's outrageous. Half of them are getting away.'

"I tell them, 'Wait a minute, you don't think this defendant is trying his case because we caught him red-handed in the store he robbed, do you? No, this guy is trying his case because there is merit to a potential not-guilty verdict. This guy knows he's got a shot.' "

The defendant and his counsel know "he's got a shot" because of disclosure. Rules of discovery or disclosure in state judicial systems require both the prosecution and the defense to reveal all the evidence and witnesses that will be introduced at trial. Both sides know exactly who will testify, and often what they will say. Both sides know what the jury will see, and when they will see it.

Ah, for the good old days before the majority of the states changed their criminal codes, when there was no discovery, and a prosecutor didn't have to tip his hand by giving up all his evidence and witnesses to the defense counsel before the trial. The writers for the old Perry Mason television programs got it all wrong. In the real world, Perry would have been the ambushed lawyer in the courtroom, sitting at the defense table with his mouth opening and closing like a beached fish as the district attorney, Mr. Burger, called a surprise witness, introduced new evidence, or started a totally unexpected line of questioning that confirmed the guilt of the defendant beyond a reasonable doubt. A former prosecutor who is now on the bench reminisces about that glorious era:

"The defense attorney had to work an awful lot harder to find out anything about his case. He wasn't being handed the prosecutor's file. There were only a couple of sources of information for the defense. It was common then, and almost never happens now, that preliminary hearings were held in criminal cases before the matter even went to the grand jury, so there was a limited amount of discovery that was done there. At least some of the witnesses testified under oath, and there was some indication as to what was going on in the prosecutor's case.

"There were also some defense attorneys who had pretty close friends on the law enforcement agencieseither the police department or the sheriff's department. Those who did a lot of criminal practice would also handle the divorces for the cops and build a relationship with them, so they would get a lot more information than we were willing to give them.

"The greatest tool that was used by both sides in our area was True Detective magazine. One of the local court reporters was paid a penny a word to write his own lurid version of these crimes for the tabloids, and there would be more about our cases in the magazine than there were in either the prosecution or the defense case files. His stories always came out before the trial and had amazing things in them. He would have photographs of the evidence and interviews with the defendants. So we always went out to buy a copy and put it in our briefcases. If you didn't have a copy, then you were incompetent counsel.

"Not having the discovery was a lot of fun for prosecutors. Since you weren't tipping your hand and telling them everything about the case, you were allowed to spring great surprises on these people.

"For instance, one day I had a burglary case. I was talking to the defense attorney the day of trial, and I said, 'I don't understand why this guy's not pleading guilty. We made him a reasonable offer.'

"'Oh no, no, he's totally innocent,' the defense attorney says.

"'I might as well tell you now. I've got fingerprints inside the residence. That places him in there.'

"He walked back to the counsel table, whispered to his client for a while, came back, and said, 'Oh, he can explain those fingerprints. He had visited there on a couple of occasions. The baby-sitter had him over. He knew her and had been in the house in the living room, so his fingerprints being there is no problem.'

"So I reached down in a bag and pulled an item out and threw it on the counsel table. He said, 'What's that?'

"'It's the dryer vent from the basement window that was ripped out. His fingerprints are impressions in the lint of the vent, a set of eight prints. Is that how he visited the baby-sitter every time he went over?' The guy pled guilty then.

"All of a sudden, here comes the evidence in the case, which would come as a terrible shock to them. So those days were fun."

Those days may have been fun, but the results were often unfair and generally inefficient. The crime rate outstripped the ability of the system to handle cases in the 1960s and 1970s. At the same time, taking their lead from the Supreme Court dominated by Justice Earl Warren, the public became aware of the fundamental inequity of trial by ambush. As a result, the majority of the states instituted changes in their criminal and civil codes, making disclosure a part of the defendant's basic rights in trial. The introduction of discovery was perhaps the most momentous change in criminal prosecution in the last hundred years. A longtime defense lawyer, with over thirty years' experience practicing in a primarily rural part of a Southern state, remembers the very first time he filed a motion for discovery:

"The first time I introduced a motion for disclosure, what we call a motion for discovery, was in 1971. Frank Jenkins, the state attorney was at his raging, steaming best back in those days. I presented the motion to him right in front of old Judge Harper, and Frank Jenkins said, 'What is this, some ACLU trick?'

"The judge boomed from the bench, 'No, Frank! These are the new rules of criminal procedure, and you're going to abide by them!' That probably was the death knell for the old-style-fire-and-brimstone political animals. He didn't believe in giving out the names of his witnesses, which meant giving away his case as far as he was concerned. Of course, the end result has been very beneficial, because there are no more surprises. Everybody knows in advance exactly who's going to testify for the state and for the defendant. Prosecutors go out and interview the defendant's witnesses. As far as efficiency in prosecution, there are more pleas now, because it's easier to assess the vulnerability or the strength of the state's case. You don't have to try them all, and they couldn't do that anyway these days. There are just too many cases."

Leveling the playing field afforded prosecutors with a more swift and orderly machine to dispose of the majority of their burgeoning caseloads, but it has also had the effect of winnowing out the no brainers. Only the difficult cases tend to come to trial. Defendants don't get away with murder because of a "technicality" in the trial process exploited by amoral defense lawyers. A guilty person may, however, walk away scot-free from his or her crime because law enforcement or the prosecutor have made a mistake. The margin of error that can be accommodated in prosecution is narrowed to a hair's breadth.

Some new, young prosecutors face this challenge with the beancounting zeal of an IRS auditor crossed with the techno-dependency of a full-blown computer dweeb. The cyber-library of precedents is exhaustively researched. Every question, every motion, every point in closing arguments is written out and virtually read to the court in an attempt to eliminate any risk of an omission or gaffe. Fear of losing has led to an exponential proliferation of experts in the judicial complexexperts on jury selection, expert witnesses of every stripe, professional trial coaches giving expert "How to Prosecute ..." seminars in ever more narrow categories.

Careful preparation, attention to details, a thorough knowledge of the record on similar cases are all essential to a well-prepared prosecution. But in the end, there really is no way to cover all the bases. There is no surefire formula for success, no machine that can churn out a guilty verdict. There are just too many people involveda minimum of sixteen, not even counting the victim and witnesseswith the infinite variety of behavior, emotion, and ways of thinking that humans are capable of. Outcomes are unpredictable. A good prosecutor needs good instincts more than good computer skills.

A trial is still essentially civic theater, a human drama, and jurors appreciate a talented actor with a full repertoire of familiar guisesthe ability to make them comfortable like an old friend, to guide them like a respected father, to fire them to righteous indignation like a good preacher. Age-old rhetorical skills, the ability to think on your feet, the patience to wait quietly rather than jumping in to fill a witness's sudden silencethese are the genius of a good trial lawyer and a winning prosecutor. Their descriptions of successful tactics sound like pointers from a veteran of the Broadway stage on timing, on overplaying an emotional scene, on how to handle hecklers. Winning prosecutors don't talk much about legal precision or worming obscure judicial concepts into a case. For them the point is connecting with other people, inspiring trust, convincing the skeptical, charming the adversarial, befriending the oddball, browbeating the pompous, and giving the guilty enough rope to hang themselves if they are foolhardy enough to take the stand.

Perhaps none of tricks of the trade mentioned in this chapter is more practical than this bit of advice on personal hygiene:

"Very early in my career, I was trying a drug case with a supervising attorney. He is very heavy, a very overweight guy, although a nice guy, and he had a very heavy beard. Being overweight, after six or eight hours in court, he was 'fragrant,' and his beard would start poking out in this thick five o'clock shadow. By the end of the day, he looked like he'd been on a week-long drunk.

"We're trying this case, and we're going to the jury late in the evening. The judge broke for supper about six o'clock, and everybody went to eat. We met again about seven. The defense attorney looked just like he had at nine o'clock that morning, when we started.

"I realized that he must have a duplicate outfit. What he did during the break was go back to his office, shower and shave, change shirts and suits. He was as fresh as when he started. I knew because of the shirt he was wearing in the eveningeven though it was the same color and pattern as his soiled shirt, it didn't have a monogram over the pocket. He had completely changed into an identical outfit, and he looked sharp in front of that jury. We looked whipped.

"It's clever, a neat trick. I asked him about it later, and he evaded the question, so I knew I had him. If you have long, serious trials that wear you out, you ought to think about things like that. Instead of going to lunch, run into the damn shower and get yourself back together."

***

My whole attitude as a prosecutor was, you came in and you took over the courtroom. The judge just happened to be sitting there. Normally, I tried not to get too closely involved with the victims in a case. I'd stay as objective as I could while I was trying it, because that made it much easier for me to work and do my job. You've got to be totally objective and professional. The prosecutor must appear before the jury as a fair and unbiased representative of justice, running the entire operation. You should be indoctrinating that jury, telling the jury just what life is going to be like for them. What they can expect. Tell them everything you can possibly tell them. Tell them all the laws. Tell them all the things that the defense attorney wants to tell them about the case as well so that he'll haw nothing to say. And if he does have anything to say, it will be that he's going to agree with all the things that you just said. It works. The defense attorney would not only agree, he would say, "Just as the prosecutor told you ... and as the prosecutor explained to you."

You want to build your case so those people are relying on you. You're the only expert in the court. You're the one who's telling them everything. You're the one who they rely on totally, and you must have them totally sold on that.

But nothing you say is just your opinion. You never say, "This is my opinion; this is what I think." You say, "This is what the facts are going to prove to you, folks. This is what's going to be established." Never personal. Never say, "I think this is a bad man." Don't worry about that. Tell them, "This is what you are going to find about this defendant." It's all their judgment. The prosecutors who get up there and begin saying, "I think and I feel," if there is no objection from the defense, half the time, as a judge now, I'll stop them anyway. "This isn't the way a case is tried, and what you think has nothing to do with it."

***

I had gotten in with a bunch of lawyers in a civil practice. My job was to rain-make, go get clients in. I was in the courtroom less and less. When I got this job as a part-time prosecutor five years ago, I didn't realize how shabby I had gotten as a trial lawyer.

I got over to my first case, and it was a black guy charged with possession of a firearm by a convicted felon. The public defender over there, I thought the guy lied to me. We made a deal, and we went to talk to the judge about it, and this guy changed itI thought. That really irritated me pretty good, so we set it for trial, and he just ripped my ass. Later, I found a handwritten note in my file, in my handwriting, that laid out the deal more or less as the public defender had stated it for the judge. I had just forgotten. He hadn't led me on.

This black guy was a convicted felon years ago, who had led a decent life for a long time. The reason he had a gun was that life was just as dangerous out there for him as it is for the rest of us. You had a white middle-class jury sitting there listening to his lawyer telling them, "Hell, yeah, he had a gun. If you lived where he lives, you'd have a gun, too." I'm sitting there thinking, "He's right. That's right." He just stomped a mud hole in my ass on that one.

It took me a long time to get back on track. I want to say I was timid, but it wasn't really timidity. I was faltering in my command of the evidence. My procedures were weak. It took me a long time to get up to speed. I think I did.

The real secret to trying cases is to try and tell stories that people will listen to. You tell something in the fashion of a coherent storythere's a beginning, a middle, and an endthe subject matter flows. If you approach cases as a story with a theme and characters and a logical ending, you'll do a couple of things: You'll present the case in an orderly fashion. "I want to tell you, the jury, a story. I have to start at the beginning of the story and fill in all the little blanks with witnesses and evidence." They can perceive and receive the evidence clearly that way if they know beforehand what the story is about. Maybe it's about the allAmerican dream gone bad. It's about unrequited love. It's about avarice and greed. It's about envy, or whatever the fuck it is about. It's always about something. A few crimes don't make sense, but most of them have a story. If the jury knows what the story is about, when they hear it, it makes sense and the things you tell them you're going to do make sense, then you have credibility, which is critical. If you lose your credibility with the jury, it's over.

So if I'm trying a case, I'll tell you, "This is about someone who wants to beat the system, someone too lazy to do anything except try to beat the system." Then I outline this story about a guy who develops bogus bank accounts and begins kiting checks around the community. He's got some grand scheme andboom! it finally falls apart. I'm not going to get up there in front of the jury, and say, "This is a complicated financial case, and you need to pay strict attention." What's that mean? But if you're telling a story, when the first witness gets up and says something, they have a general idea of how that's going to fit into the big picture. That's why it's critical that they understand the story.

In the basic rape or possession of drugs cases, we don't need lawyers to try those. You just need tape recorders and enough courtrooms and jail cells. But in the case where the difference between conviction and acquittal is a lawyer, you have to make it into a story.

I started doing that and getting more fluid with my evidence. The other key to trial work is the rules of evidencewhat's admissible, what isn't admissible. If you don't know your evidence, you're fucked. You can be the best bullshitter, the handsomest, most charming guy in the world. If you don't know your evidence, you're done. Take some time off, and go home early.

You do have to depend on the police. If you don't have good law enforcement out there, you can't make a silk purse out of a sow's ear sort of thing. We had a case here years ago. The city manager was accused of cutting the mayor's wife's head off with a machete in front of the mayor's house. One of the prosecutors got to the crime scene and had gone into the house when he heard water running. He went outside on the sidewalkthis was in broad daylightand he found one of the police officers washing the area down, just "cleaning up," and destroying the crime scene. The guy got acquitted, by the way.

Teifel McMann was probably in his early forties. He was an appliance salesman and repairman. He had a little shop down off the main drag. He'd had trouble with alcohol in the past. Teifel was drinking one morning, and he decided that he needed to go buy himself a piece of crack. He went into a laundromat back in this black neighborhood, where there are some small-time street drug dealers playing cards. Teifel buys his crack and leaves, but he comes walking back a few minutes later, pissed off about the size of the rock he bought. There is a scuffle, with wildly varying reports about who hit who, but Teifel goes down and cracks his head open on the floor. He has head injuries, and he ends up dying shortly after paramedics arrive.

I get the case. You can imagine the cooperation I'm getting from the community around there. Almost every witness inside and outside the place was a drug dealer or a drug buyer or a friend of the dealers. Except for one: There just happened to be one seventeen-year-old straight-A high school student in there doing her mother's laundry. She put it on all of themsaid all six dealers hit him. So I charged them with manslaughter. Not any one blow killed the man, but all the blows added up to him slamming his head into the floor and cracking his skull.

But I was having trouble. She lived in the neighborhood and was afraid to testify. There was only one other guy I had a chance with, a guy named Hernando Nathan. He's twenty years old, no job. If you go down there right now, he's on the corner drinking a beer. He's one of these funny guysjokes all the time; everybody knows him. He was interviewed by the detective for the police department.

Let me tell you something, if you think LAPD has problems, you just haven't seen our local police department. They are so understaffed and undertrained, it's sickening. For instance, most people who watch television would realize that when a crime like this has been committed, the police force is supposed to tape off the area to preserve the crime scene. Then they collect evidence, take some photographs. This police department is reported to have told the guy who owns the laundromat soon after the victim was removed to "just mop it up." So there was no preservation of the crime scene, not photograph number one.

After the detectives interview the various witnesses, I'm supposed to distribute these reports of the interviews to the defense lawyers. There are six defendants, six defense lawyers. David Farley, the detective in charge of this case, was not on time giving me the reports. I sent him two letters saying, "Look, I've got the defense lawyers on my back. You need to give me the reports."

All of a sudden, the date is set for Farley's deposition. Depositions were a gas in and of themselves, with seven lawyers around the table for every witness. Farley shows up for deposition with the reports. There are six packets, one for each defense lawyer, containing the witness reports we were missing. Hernando Nathan's is one of these. Farley has a copy for everybody but me. I say, Ill get it later. Let's just go. Let's do it.

A month later, the trial date is set. I have witness problems. Some of the defendants have ended up pleading to a lesser charge and have become witnesses for the prosecution, but as you can imagine, everyone's version of what happened that day is different. When you use a co-defendant, there is always the argument in the jurors' minds that this witness has been given incentive. But then there's old Hernando, standing right there outside the plate-glass window looking into the laundromat. The weekend before the trial, I finally get hold of Farley, and I say, "Let's get together and prepare. I know what's in them, but I need you to give me the witness statements you never got to me," and I named off a few of them. So on Saturday before the trial is to start on Monday, I get Hernando Nathan's statement. It's a bunch of garbage, and then at the bottom of the transcript of the statement it says in handwriting, "All six hit the man." I had talked to Hernando in the preceding months, and he would say, "Oh no, man. I didn't see nothing, man. I didn't see nothing. Nothing, man." But I realized that I needed something up there besides my high school girl, so I decided to put Hernando on the stand anyway, let him say that, and then impeach him with his own sworn statement.

So I get Hernando on the stand. "I didn't see nothing, man. C'mon, what you doing to me? I didn't see nothing, man."

"Hernando, 'All six hit the man,' didn't they?"

"No, man."

Do you remember giving a written statement?

"Yeah, man. I remember, yeah."

"Isn't this what you swore to?" So I read it out, line by line, sentence by sentence. I get to the last sentence. "And then you told the officer, 'All six hit the man.'"

"Objection!" The defense attorney gets up. We go to the bench. His copy doesn't have the last line written on it. I'm saying, "Wait a minute, wait a minute." I look at his copy. Oh my God! I'm in big, big trouble. It wasn't even Hernando's handwriting. It's the cop's.

Then the defense made what in my opinion was a strategic error. He moved for a mistrial, which means the case is over, but the defendant can be retried. The judge granted the mistrial. He brought the cop over out of the jury's presence, and Farley says, "I don't know how that got there. Wow, I don't know. Wow, man, wow. I can't explain that."

"Is that your handwriting?" the judge asked him.

"Yeah."

"What do you mean," I said. "It's your handwriting, you put it there."

Next month, I tried the guy again. I didn't call the detective or Hernando. The guy got convicted with the high school girl's testimony and a couple of co-defendants.' Strategically, the defense had me on the ropes in the first trial. What they should have done was call the cop back to the stand and rake him over the coals. Anything he said at that point was a potential lie. Instead, the defense went for the immediate gratification of a mistrial without looking down the line.

An independent investigation was set up. Farley was tried and convicted for evidence tampering and barred from working in law enforcement.

It's a small community. Everybody knows everybody else. So if an outside perpetrator committed a crime on a local person, you knew the family and it was as though you were a relative being charged with going forward and making sure that justice was served, "By God, we're going to get that guy." That's different than it would be in a larger community. If somebody was wronged"My sister was raped"I'm going to defend her honor. I'm going to get that guy. But it is something that you have to guard against, because you lose your objectivity, and that's not good. We had a good sheriff. He was also the local schoolbus driver. Whatever the sheriff did and however emotional he might become, I at least tried to avoid getting that involved.

When the local youngsters got askew of the law either for alcohol or drugsand drugs more importantlyin a small community, you bent over backward to help them out.

"Now, this is the last time I'm going to warn you: You get into trouble with this marijuana one more time, and thats it. You know, this is a crime. You can get sent to prison."

Im sorry. I won't do that again. So get him all the probation you can or deferred prosecution. I can say now, this particular guy I'm thinking about is an accountant who has an office down the street today. He is a community-minded, responsible citizen. Except for somebody's discretion back when, he would have a felony and wouldn't be allowed any position of trust. Again, the sheriff upheld the law, and law enforcement couldn't condone a lot of that, but he was as softhearted as anybody when it came to a local person being charged with something that did not involve a violent crime. We bent over backward to keep the kids out of the prison. The prison was right there in town, too, so you knew how tough that was going to be.

You have to separate the important stuff from the unimportant stuff. I'm a bare-bones prosecutor. If I've got four people standing on a corner that see John Smith shoot Jane Doe and two of them get on the stand and do a very credible job of saying that, I'm probably not going to use the other two. I don't think the defendant can possibly deny his guilt, if that's what he's trying to do. For the most part, the witnesses we get are not articulate or educated. Think of where most murders take place. Think of bars and back alleys. They may be the nicest people in the world. I like to drink, myself, so I've been found in bars. But, you know, you've got to be careful who's testifying. It's not that they're lying. If they are not particularly educated, the defense attorney can make them look foolish. Then the jury sits there, and instead of seeing this for what it ismaybe this guy isn't the quickest guy in the worldthey think, Maybe he's lying, maybe we should disregard his testimony. Witnesses tend to contradict themselves on minor things. If I can get two of them that come across quite well, I'll forget the others, because I'm not going to gain anything by putting them on the stand, and I might lose something.

I'm not much for overkill. On the other hand, I'm not going to lose some wonderful witness, either. If I've got a minister, a priest, and a rabbi, and I put the minister and the priest on and they come off real good, I'm going to use the rabbi, too. But normally you don't have that. You've got regular, real people.

Other prosecutors are the exact opposite. They want to build up every case as much as they can. I tried a case with another one of the assistants down there, a good friend of mine, and a good, good prosecutor. Yet, his theory on these things is the exact opposite of mine. He hurls everything he can get his hands on.

In this case, we had the murder of a guy who ran a Mack tool truck. There's lots of money in those tools. Thousands, maybe a hundred thousand dollars' worth of tools in each truck, at least. A couple of yahoos decided to rob him. They set it all up. They'd called and called and tried to get this guy. They say they'll meet him down by the railroad late at night, but they promise him a sale. They'll buy at least 250 dollars' worth from him. The guy can make an extra fifty bucks, and he's trying to feed his kids, so he goes. They actually shoot him right there at the meeting place by the railroad tracks. Then one of the guys drives the truck with him in it all the way down to a small town fifty miles away. They take the tools and leave the truck in a field. It's dark, and no one can see it. Unfortunately, the guy is still alive. He doesn't die until the next day, so he was probably in a lot of pain.

Now, the defendant could argue accidentthe gun went off by accident. Our guy is dead, and the other thief is not going to testify, so we don't have anybody to refute that. He can do a lot of things, but he's not going to be able to get out of the fact that he and his buddy actually were involved in this act. And there's no question the victim is dead. We have plenty of good evidence to prove this guy is guilty.

You have to understand, though, that when the police get down there, they don't know anything. They go and they find this poor guy dead, but the facts of the case aren't put together until a few days after that. They're doing things that are good police work but which don't mean anything in retrospect. This time it was taking tire tracks from the other end of the field from cars that had nothing to do with this. But they didn't know that this was not evidence at the time. This other prosecutor I'm working with, George, is trying to put all this stuff into the caseplaster of Paris casts of tire tracks. Faced with all this extra information, all the defense has to do is argue that maybe there is something we don't know about. Then these jurors, who think that real trials are like on television and who want to fancy themselves as a combination of Sherlock Holmes and Perry Mason, they're going to solve what really happened, because all of us are just klutzes and don't know it. That's where you get some bizarre jury verdicts. But George is throwing everything out to see what stickshe doesn't want to be accused of holding anything back.

The first trial, we did it his way. The first trial was a hung jury. The second trial, we did it my way, and we got him convicted.

The insignificant grand theft of a riding lawn mowerthose are the ones you lose. People don't care. "Maybe he took the lawn mower, maybe he didn't take the lawn mower; but I don't want to send the guy to prison for trying to mow his yard." These cases are great for the public defender controlling the docket. If the crime just has no significance in the grand scheme of things, juries don't want to convict them, and you're more likely to lose those. Nobody will turn a murderer or rapist loose. O.J. may be an exception. But in the grand scheme of things, that's not going to happen. Time after time after time, you'll get convictions ninety-five out of a hundred times.

We had an intern this summer, and we had a guy who was a career car thief coming up for trial. He had a record that looked like the Manhattan Yellow Pages. He started back in the 1960s stealing cars. Where you or I might call a cab to go somewhere, he'd steal a car. The state attorney's office wanted to habitualize him, and they took him to trial, and we put the intern in to try him. The newspaper guy sat down with me and said, "Is this like shooting fish in a barrel?" I told him, "First of all, this is the kid's first trial. You don't want to give him a case with warts on it. You don't want his first time at bat to be a bad experience. This defendant is a habitual felon, and he needs to go away. You can't make a deal. There isn't a deal to be made."

The kid is worried about picking a jury, and like most greenhorns, he did overkill in his preparation, had all these questions to ask the prospective jurors. I told him, "You don't need to try and pick good jurors. Everybody is a good juror for somebody who will walk up right in front of you, jump into your truck, and take off. What you need to do is you need to detect the squirrels." I'm not sure that message got through.

The truth is, they are all, for the most part, pretty good juries. But you always have these few people hidden in the general population, sprinkled throughout, the ones who will get everybody offtrack on some little quirk of theirs, or the ones who proclaim that everything is subject to doubt. "I think therefore I am. But how do I know I think?" Those guys. If you can get those people out, you're all right.

As a prosecutor, you want people who are predisposed to convict. The other side wants people who have a more open mind and are less likely to convict. People talk about how trials are a search for the truth. That's bullshit. You're trying to stack it and they're trying to stack it, but everybody is trying to get rid of the crazies, because you don't know what they're going to do.

Never leave a person with a bow tie on a jury. I've known that from the get-go. People with bow ties are squirrely. You cannot predict what they're going to do. I have personal confirmation of this. I hired this guy a couple of years ago, and he comes in with great business experience, and he looks good in a pinstripe suit. Looked like the perfect candidate. Hired him. The second day, he came to work in a bow tie. I went, "Oops." Boy, I was right. Oh Jesus.

There was an old saying around our prosecutor's office years ago. "In jury selection, the first thing you do is get rid of all the P's." What that meant was you got rid of everybody whose occupation started with the letter p. That included professors and preachers, and plumbers and paintersprofessionals of every stripe. There was no rhyme or reason to it-it was just an old saying.

Over the years, the jury selection process has become quite an art of its own, and there is a lot more emphasis placed on it than there ever was before. I think there is definitely some merit to the process. A lot of lawyers, myself included to a large extent, we try cases strictly from the gut. In jury selection, I make a lot of decisions on jurors for no other reasons than the guthow the person is reacting to me or not reacting to the other lawyer, or subtle things that are unspoken, not really part of the process. It's like making up your mind about people when you first meet them. I tell people all the time. I've made a living over twenty years now doing nothing but evaluating other people, whether they're witnesses, jurors, or defendants.

Unfortunately, court is not always fair for the defendants. But there is one thing I have noticed. When it gets to a jury, I'd say 95 percent of the timemaybe it's just a stroke of luck-whatever makes it happen, jurors actually do the right thing. Most of the times the decisions they make are fairly rational, and right on the money. Most of the time if they say the guy is guilty, he's guilty. And if he's innocent, they let him go. That's one of the few good things that surprised me about the criminal system that actually works.

Everybody's fighting it tooth and nail, but once they get into it, people on juries take it very seriously. They really put their heart into it. They really try to do the right thing. They know somebody's life is on the line. Or even if it's not on the line, if it's civil, they still take it seriously and try. You'll find some jurors who sleep through the whole trial, but most of them do a good job, and that's one of the rewarding things about the law.

We had two constables who were just absolutely delightful beyond belief. At that time, which was a while ago, the constables selected the jurors. These two fellows always decided how the case should end and would fix the jury, considering what they thought the outcome should be.

There was a case where the prosecutor said to the judge, "I don't want this man to sit on this jury because he can't hear.'' This guy was deaf as a board.

The judge didn't hear so well himself. The judge leaned over and he said, "WHAT?"

The prosecutor said, "He's deaf, Your Honor! He's DEAF!" So the judge went along with that. The prosecutor is walking out, and one of the constables gets him aside and says, "God, you made a terrible mistake. That guy was with you all the way."

Then came the day that one of the constables' friends gets a DUI. They go down to one of the real tough bars, and they pick the jury from the guys who are still about half drunk, sitting around on the front bench at the bar. The jury is sitting there waiting to go into the jury box, and they're belching, and some of them go to sleep. The constables are looking at the prosecutor sitting there across from the defendant and saying, "We got you wired on this one, sucker."

But it was an on open-and-shut case, so the jury goes in to deliberate. In about five minutes, they're back.

"What is your verdict?"

The foreman belches a couple of times and says, "Guilty, Your Honor."

The constables are just in shock. They get the foreman of the jury afterward, and they say, "Why did you do this?"

And the foreman of the jury says, "It takes one to know one."

***

I had a drug case where I was really disgusted. The defense attorney involved has gone on to become a "civil rights" lawyerat least, that's what he thinks. In mv case, he was saying, "The police are doing horrible things to black folks! They're arresting everybody, blah, blab, blah. How could you persecute this poor man?" This childI even remember the defendant's name, his name was Alphonsowas arrested on an A2-class drug charge. The minimum sentence was six to life. I spent a lot of time and effort on this case, because it seemed to me this child deserved some consideration. He had no record; he had a wonderful family. It looked like what happened was he was standing out in front of his building, where people that he knows are hanging out. They are selling drugs, but he wants to feel that "he's down with" whatever it is, or somebody bets him that he can't deliver. So the undercovers come by. They make a deal with whoever the other people are. The undercovers give the people the money, and Alphonso just takes a package and gives it to them.

His attorney takes the attitude that this is the crime of the century. The police officers are lying. I said, "I don't think so. I think these police officers are telling the truth, and I'm going to make you the best offer I can make. You ought to try and persuade your client to take this offer."

"No, no, no! He's innocent. He didn't do anything like that. You are persecuting him."

Some undercovers you had to watch, but this undercover, I didn't have any problem with. I even went to my supervisor and said, "This really is a nice kid. I don't want to send him to jail for six to life. Would you please allow me make him an offer of an A3?" So I went to battle for him, because he made a mistake, but why don't we see if he can straighten up? I got my supervisor to agree that I could make this offer. I went back and said, "This is the offertake it! Please! I know that your kid is nice. I'm convinced that he did this. But there is no reason to go to trial on this and risk that much time in jail."

But the defense attorney was adamant, "No, no, no." He just assumed the police officers were going to be white, and since it was up in a predominantly black area of the city, he was going to get a jury that somehow was going to acquit this child with no record. I'm going, "Don't do this. Do not do this." So he refused my offer. And they went to trial. And they lost. And I still remember that mother crying. She had to be carried out of the courtroom. That lawyer looked at me, and there was nothing he could say. "I told you not to do this."

Everything is not a political trialit just isn't. There was nothing out of the ordinary in this case. The officers were plain old black officers doing their job. They told me the truth. They got on the witness stand, and the jury believed them. What can I tell you, you know? I'm still mad at him. I couldn't believe he would do that rather than listen to me. People just think they can beat you at trial, just because you're a woman or because you're black or because you're whatever you are. It's not true all the timeor any of the time, actually. That was the low point for me.

Its a terrible thing to send an innocent man to prison. How much better it is to turn a guilty man loose than to unjustly convict an innocent man? I guess it is. I've had some guys that I've made them deals where I thought they probably should have walked out free men instead of doing short time, but the person representing them just would not cooperate. Sometimes a public defender or a defense lawyer will just try and bust your ass all the time. Frankly, you end up busting theirs back. You get irritated, but you try not to take it out on the people they represent. The defendant didn't know this asshole lawyer he hired from Adam's housecat. Maybe the state just appointed this son of a bitch to represent him.

Should you penalize him for that? No.

Do we? Probably, sometimes. You try not to, but we're human. The other day I made a guy plead straight-up to stealing his own car out of the repairman's garage. It was just a piece of paper until we finally got into court, and I really looked at him. He was just a weak-looking, nerdy kind of guy. Knowing what I knew about his background, he probably didn't have much chance for anything but to be on the fringe of life. He already had a felony conviction, and he damn sure has another one now I felt kind of bad for him. If his lawyer had spent a little more time trying to humanize that guy as opposed to busting my ass at every turn about whether or not I could prove my case, he never would have got this.

I felt like maybe I'd been too hard on him. He got probation on this one, and maybe he needed the structure of probation. I didn't feel terrible about the decisions I was making. But as it was happening, I was thinking about the lawyer, and I knew of two or three other lawyers, and if one of them had come to talk to me about that case, there would have been a different result.

We get to court, and the lawyer hasn't put any effort into resolving the case. When it did get resolved, I thought to myself, It's a shame. What happened wasn't injustice. But just looking at the guyhe was a bit of a wreck. He at least needed more attention than he got. I didn't feel bad enough to step up to the plate for himalthough I have done that on occasion, when I see somebody dropping the ball. You try to jerk it back out of the jaws of whatever. Sometimes they won't do it. You'd be amazed. Sometimes people are their own worst enemies.

There are many insanity-defense cases that Ive looked at that I agreed right off the bat"This is a legitimate case for insanity." First of all, there is no reason for the homicide. That would always be the first thing you'd notice. This was a senseless actthere was no reason, no motive.

I had fun with one of them for a while, negotiating a plea with a defense attorney. It was a man who had shot his upstairs neighbors. He kept a blanket over his TV set because "they" were sending rays through the set that were affecting him. He had a collection of 16mm movies that he was taking of all the cars that were following him all the time. He had all this background as a pretty crazy guy, and his attorney had all this psychiatric testimony. It was clear that this man had a serious problem, that there really was no motive for these killings, and that he needed to be hospitalized.

Along with all his other paranoid behavior, he also had been saving tap water. He dated all of it on the day he had bottled it, and he had the little jars of water tested, because he was convinced that people were trying to poison him.

In working out the negotiations with the defense attorney, who is a pretty good friend of mine, I told him, "Look, I'm leaning toward your point of view in this. I think we should offer you the plea and let him be committed, let him go to the state hospital and be taken care of. But I have a little bit of hesitation. Are you convinced that all of this is phony? All of this is in his head?"

"Absolutely," he says. Im totally convinced. There's no question about it. He's paranoid. There's nothing wrong with all that tap water.

"Fine," I said. "Pick out any bottle you want. You drink it, and you've got the deal."

"Are you nuts? I'm not drinking this stuff."

"Oh, it might be poisoned then, huh?"

But we did work out a deal.

A defense attorney was trying to develop an insanity defense for this guy who beat the shit out of a police officer who was giving him a ticket. So the attorney got this guy from the big city who charged $600 an hour for the first hour, including travel time, and then $450 for every hour after the first one. It was an enormous amount of money. The guy basically showed up with two pictures. They looked like composite CAT scans of the brain. One of them was bright colors, and the other one had cool colors. One was a stressed brain and the other one was a "happy" brain. I've got a psychologist, a local guy, on the stand, and he's referring to this "expert's" happy brain/sad brain props.

I'm giving my argument to the jury, and I said, "Six hundred dollars. Lord." Then I'd go on talking about the case, then I'd stop and say, "Six hundred dollars an hour! Ever since he told me that, I've been trying to think of some other profession that pays six hundred dollars an hour, and I can't think of anything that doesn't require somebody to take off their clothes." I can't call him a whore, but I can make that kind of comment. The judge starts laughing. The jury looks at me stone-faced.

I won the case, but I thought my line that allowed me to call a doctor a whore in court was brilliant. But nobody laughed. If they did get it, they didn't let me know.

We had a couple of whorehouses in town which I finally closed, simply because whorehouses were a magnet for crime. I had the personal feeling that there is no worse degradation of women than to turn them into whores. In any event, one of the freelance girls was this attractive and very bright-looking gal. She got arrested and went through reformation with a little backsliding. But a young man who came from a very responsible family fell in love with this girl.

Her pimp resented this. So the two men had a classic Hollywood Wild West shootout down on the avenue that was frequented by prostitutes. The pimp had a revolver. The young man had a riflewhich doesn't really speak too well for the intelligence of the pimp, who was killed in the shooting.

This case comes on my desk. Of course, I think the captain of detectives kind of enjoyed the anguish that this prosecutor had in looking at this case. This state has always had the theory that there are some people who, by the way they live, deserve to be killed. We were way ahead of people who now talk about the battered-wife syndrome. It was always considered appropriate for some women to shoot their spouses if need be, when they'd had enough of it.

It's kind of hard to work up much jury sympathy for the death of a pimp, right? Particularly when you have this young man who was a good fellow. At that time, we still had a dueling statute, so I said, "By God, I'm going to charge this kid with dueling." Nobody had filed a dueling charge, maybe ever. That statute worked out very well. He got a minimal sentence and spent a short time in incarceration. As we all expected, he rehabilitated and came back.

Unfortunately, after the press had a certain amount of fun, as you might expect, with the dueling charge, the legislature wiped out the dueling statute. Part of the reason I resented that was that we could have used that dueling statute quite a bit. You didn't have to prove the intent to cause bodily harm or anything about the defendant's state of mind as one must when involved in a homicide charge. It was all very simple. Getting rid of that dueling statute was a mistake.

Tried a case of drunk-driving manslaughter: The accident occurred on the defendant's side of the road. He hit a motorcycle in the lane that he was supposed to be in and killed the motorcycle driver. The skid marks were such that if you analyzed them and measured the vehicle that the defendant was driving, the ass of his vehicle was in the oncoming lane, which meant that he just came back to his lane from the wrong lane. The motorcyclist, in an attempt to get away from him, had cut across into the other lane. Then the car had swerved back where he was supposed to be, and there was nothing the motorcyclist could do.

I had a photograph of the car the defendant was driving. The perspective of the car was of the car turning left. I needed the exact opposite. I needed somebody to take the negative, flip it, and make me another picturebut it's hard, there's never enough time, and I didn't get around to it till trial. I had a picture of the highway and the skid marks. What I wanted to do was to hold the right-turning vehicle up to the skid marks and show that he had to have been coming back from the wrong side of the road. I'm in my office before going to court, and I held the picture up to the window to see if you could see through it. That way I could get the reverse. It looked like it would work okay for demonstration purposes.

Some cases just take on a life of their own. The community gets incensed at somebody. This case was one of those. The courtroom was packed every day. The defense lawyer was a very cagey, clever guy. Not as clever as he thinks, but his weakness is that he thinks he's so much smarter than everyone else. I get to my closing arguments that day, and I told the jury, "I didn't get this snapshot of the car redone like I should have. I waited around until it was too late. In order for you to see what I want you to see, you're going to have to look through the back of the photograph while I hold it up to the light." I held that picture up, and the light shone through the picture of the car sitting in the skid marks. It was so weirdthe car was almost ghostly. There was no noise in the courtroom. It was like I had a piece of Twilight Zone in my hand. "If you look closely, you'll see the last thing the victim ever saw in this world." They were so focused, rapt. It was an accident. I didn't intend it to be that way, but it turned out to be one of the most powerful exhibits I've ever held up to a jury. I can't tell you how spooky it was. The hair on my arms stood up. He got sixteen years for that conviction.

We tried a guy here ten years or so ago for killing his wife. Circumstantial case. Jury hung. He and his wife were separated, but we knew they were together that night to look for a place for their five-year-old to start kindergarten. They went to a couple of places to check out the schools, then they went back to the house where she lived, and the kid went to bed. The child came down the next morning, whenever kids get up, and his mother was laying there in the kitchen. She'd been beaten to death. This guy said he was there, went home, and didn't know anything. We tried him anyway, the jury hung, and the judge granted a motion for acquittal. He was a judge that, in my opinion, just liked to clear his docket.

About six or eight years go by. This guy is a free man. I get a call from a friend who is a prosecuting attorney in Missoula, Montana. "Hey, you know a guy named John Krassler?"

"John Krassler. Let me think about that. John Krassler? We have so many cases here."

John Krassler had walked into Sandy's office out west one day, and he asked if he could talk to the prosecutor. His son was now thirteen or fourteen years old. He intimated to Sandy that he had murdered his wife back here. Sandy didn't know if this guy was crazy or what. So he calls me, and I say, "Oh yeah. I know all about that guy." I told Sandy what had happened. I said, "Sandy, can you get him back?"

"Yeah.''

"Get him back. Read him his Miranda rights, even though he's been acquitted. Try and tape it, and get a statement from him because he took the stand in his own defense and denied the murder, so if we can get him at least with perjury it would be something."

Sandy did it. He had the deputy sheriff there. We got the statement, brought him back on the perjury charge. The unique thing that was donewe charged him with felonious assault with his son as the victim, the theory being that when he beat his wife to death, he knew that the son would come down and find her, therefore the psychological impact he had had was in essence an assault. We convicted him on that, and he's got a sentence where he'll have to do ten to thirteen years, which isn't a whole lot less than he would have done for the homicide.

I had a friend of mine I play fast-pitch softball witha little younger than I was, maybe by ten years. I didn't know much about him except that he was a very interesting guy. Probably had a high school education. I didn't believe he had any money. Came from no money. I knew he went to a fast-pitch tournament for guys forty and over in Las Vegas three or four years ago. A couple older guyssixty-five or seventy years old, friends of hiscame along as coaches. I found out later that he paid for their tickets and he paid for their rooms, because they didn't have the money to make the trip on their own. Although I knew he had a heart of gold, what I didn't know until after he died was that he was a self-made millionaire. I knew he'd work at the Dairy Queen and I knew he had these odd properties that he'd fix up and paint, do all the work himself. As time went on, he became very successful. He and his sister ended up with a health care center for elderly people. Home care thing. He was just in everything.

He's fixing up one of his houses that he rented out, and some guys were next door. He was their landlord, too. They decided that the landlord's probably got money. One guy went over and killed him. Didn't get a cent. He had a wallet in his truck. There was twenty bucks in his wallet.

But all these guys in the house were ne'er-do-wells. Jesus Christ, everybody's on drugs; everybody else is drunk. We had a real mess. We were convinced that we knew who did it. We had one guy who was going to be our key witness who told us that the guy we suspected committed the murder. But then the witness failed the trace metal detector test. That meant my witness had recently fired a weapon. He might just as easily have been the murderer as the suspect. Of course, all these people had guns. They all have gunsit's just a fact of life. The guy who was a suspect, we didn't get hold of him until three or four days later. So, of course, his test doesn't mean anything.

This guy's wife is decimated. I could look at it objectively and say, "Hey, I believe he did it, but I don't think we're going to win." But I couldn't tell her that. If a defense attorney takes a certain tactic, we could get manslaughter, but we can't count on it. None of our witnesses are any good. We got some critical evidence that helps us, but I just got worried to death that the jury is going to look at these witnesses and say they're just criminals, that the evidence was probably planted. Proof beyond a reasonable doubt means they got to believe these people beyond a reasonable doubt to put this guy in the electric chair. And there's a real good attorney on the other side.

When this thing first happened and I got the file, one of the policemen who was a friend of mine on the homicide squad said, "Mike, how we got this guy is we got a tip about where he was through the FBI. We worked with the FBI, because they knew he was going to be driving from Florida to Maine. That night we grabbed him, one of the FBI guys said something about a tape. Somebody has a tape of the defendant admitting the murder."

So I call the FBI guys. My friend with them says, "I don't know if there is any truth to it. You've got to keep this quiet for a while, but we knew about your suspect through a paid informant The paid informant told me that there was some sort of a tape, but, Mike, I never pay any attention to these guys."

"I need to talk to this guy," I said. "Give me the guy's name."

When my FBI contact told me the informant's name, I remembered the guy. I'd tried him for murder twenty-something years ago. The only reason I remember him is that he was a juvenile at the time, and we held him such a long time as a juvenile that he was tried in adult court, and his defense was arguing speedy trial. So anyway, they gave me his number

These guys are not bankers. They don't keep regular hours. They have beeper numbers. It takes me a while, but I finally get hold of the guy. He's going to go back with me, doesn't want to talk then. He gets back with me eventually. He said, "I heard there was a tape, but there wasn't. I thought it had been destroyed, and it was. The person who had it destroyed it, and there is no tape."

I'm thinking, If there really is a tape, it's never been destroyed, because somebody in that group of people knows its value. This is something that a prosecutor or a policeman would want; therefore, hang on to it. If it ever existed, I found it hard to believe that it had been destroyedat least intentionally.

Okay. Two or three months go by, and this case isn't getting any better. So I call this guy again. We still had never met. Finally, I convince him to come in. He comes in one night at the office, and he has a buddy with him. Honest to God, both of these guys are as big as houses, with arms like barrels from twenty years of lifting weights in prison. I am sitting there a little wary, but I'm getting along with them okay. I don't know who this other guy is. So the first guy is sitting there talking to me, and he says, "Okay, there is a tape."

After the shooting, this kid who shot my softball buddy took off and stayed with these people who are twenty years older than him and who are into much bigger things than he has ever imagined. In the course of it, there was a woman there who put a tape recorder in her purse and sat down and talked to the kid. The whole tape didn't last but three minutes, maybe four, something like that. Of course, it's crackling, and both of them get so excited, they talk in a high voice with accents, so most of it is hard to decipher. Plus, it's muffled inside the purse. But basically she says, "What happened?" And he talks about killing this guy. I haven't heard it, but these two guys are willing to give it to me. But I've got to do something for the guy I'm talking to, something for the friend he brought, and something for a guy in prison.

"Look," I said. "I can do something for you. I'll talk to the judge, I can do that. For this guy here, I'm going to have to talk to the police department. I can't do anything for the guy in prisonI don't have that authoritybut I will write a letter to the governor." So we had this long drawn out negotiation. It was reasonable. In fact, the one guy just wanted off probation. And the judge readily agreed to that. He had a three-year sentence in prison, he did two years, and they shocked him out. He only had a year to go, and hed done three or four months of that. He just didn't want to keep coming down every month to the courthouse to check in with the probation officer. It was simple. The other guy was involved with a drug deal, and the cops had already told him, "You turn three cases for us, and we won't charge you." He said, "Will this count as a case? This has nothing to do with the drugs and all that, but I want this to count in my three cases." So I called the police, and they said okay. The guv in prison, I couldn't help. But we tried.

Finally, they brought me the tape. I'm telling you, it was great. I couldn't believe it. This case went from a total loser, a not guilty, to "If we can get this tape in, it should be winner."

It took another four months. The defendant fired his attorneys and hired new ones, but he ended up pleading to life with no parole hearing until he'd completed thirty-three years of his sentence. He'll probably do forty-five years, if he lives that long, and he probably won't.

I prosecuted a murder case one time in which this man had been shot with a pistol. We thought we knew who did it, but we weren't sure. We thought we knew who helped out with the murder. So we got the accomplice to come down to the state attorney's office, and ran him on a polygraph. I'm sitting there watching the polygraph machine, and we get around to the golden question: "Do you know where the gun is?" This guy literally knocked the needle off the machine. It was just incredible. It went ker-wham! Everybody got a little ink on them. After the polygraph was over, I talked to the examiner and the examiner said, "You know, I really don't think this guy had anything to do with it. But I do believe that he knows where that gun is."

I went up to my office and had my secretary type up an indictment for first-degree murder with this guy's name on it and a grant of immunity with this guy's name on it. So I brought him up to the office, and I said, "You know, I'm in a tough situation because you flunked the polygraph exam, and we're going to have to make some decision about what to do with you. Rather than me make this decision, I'm going to let you make it for me. I've got two pieces of paper here. One is an indictment for firstdegree murder. The other one is a grant of immunity. I want the gun. You pick out which of these two pieces of paper you want." We had the gun in about thirty minutes. Sometimes you got to do what you got to do. I like to give people an option. They can choose whichever one they like.

I had a guy who killed this young boy with a sawed-off .22 rifle at a family gathering. He had a fight and a screaming match between him and his wife, so he runs and gets this gun. The kid is sleeping on the couch. This guy is pointing the gun at the head of this child and screaming with his wife and finally pulls the trigger. Gets up on the witness stand and says that it was all an accident. "It just went off by accident."

"Show me how that's possible," I said, and I handed him the rifle in court. This particular rifle was a bolt-action single-shot .22. The first thing you have to do is open the bolt and put a bullet in, close the bolt, and ram it down. Then you had to pull a cocking lever. It was a really old weapon, and you had to really pull the trigger. He claimed that he never pulled the cocking lever. "Never did." I handed it to him and said, "Operate that bolt and pull that trigger as many times as you want for this jury, and let's hear the click." He did it four or five times, and it didn't fire. "How many more times do you want to try it?" He had nothing to say. I took the weapon away from him and put it down.

You get these people with a weird story of how the gun went off. I had one of them claim that he took the gun out of his pocket, an automatic. He was holding it over the top of the receiver, and he just hit the fellow over the head with the butt. It happened to go off and kill the guy. "Let's see. Came down and hit him. It fired. Never had his hand on the trigger at all." First of all, it had a safety, so it couldn't fire without the trigger being pulled. Number two, if it had gone off that way his hand would have been burned with the gases; the slide would have bitten him. Never got a mark on his hand.

I love the ones who say, "I never pulled the trigger." What most people don't realize is that a revolver has a hammer-block safety in it. If you're not pulling the trigger all the way back, the hammer will drop, but it won't fire. The firing pin can't hit that shell unless you're holding the trigger back. If you hit it with a brick, it won't fire. I would have people demonstrate that. You'd take a pencil and drop it down the barrel and cock it and hit it. The hammer falls, but the pencil never moves. If you really pull the trigger, it will knock the pencil right out the end of the barrel. But a lot of people don't think there is a safety in a revolver. So they have this story about how this went off accidentally. It dropped and fell and went off.

I always had fun with the weapons. I would hand them to the defendant. Let him have it in his hands. The deputies would get upset when I'd give them a butcher knife.

We had prison murders at the state prison here in town. Those defendants were always very cooperative. I'd have them come down: "Show me, here on the floor of the courtroom, how you were wrestling around with this guy and you're claiming self-defense in his death." Pretty soon they're jumping up and down and getting into the whole scene and how bad the fight went back and forth. Before you know it, they've demonstrated exactly how they stabbed the other guy, who was unarmed.

***

I just have a hard time with folks who get attached to a legal pad in a courtroom and who read almost everything, read all of their questions. They can't just stand there on their own two feet, walk around, remember, and listen to the answers to the questions. Too many of them haven't even heard the answer to the first question, and they're asking their next one. They just don't listen. They get too involved with their own performance instead of paying attention to the witness. When you get down to final arguments, you can try to be the star, but not during crossexamination. Some of the greatest questions in the world are: "What happened next?" "Then what did you do?" The question isn't anything. You want that answer to come out in court. But it's hard to instill the patience and the ability to listen in some of these young prosecutors if they haven't really seen a lot of cases and spent the time watching other people try cases. Many times, you can sense that a witness is going to say something more. Just let them. See what happens.

I've had defendants on the stand on more than one occasion where the defense attorney is trying to soften the criminal record of the defendant. "Now, you've had convictions in the past, haven't you?" As soon as they start to talk about it, I would reach in my file and pull out some documents and look at them while the guy answered. He'd say, "Well, I've had a few." And I'd give him a look. He'd mention part of his record, and I'd turn pages. "And that's all." I'd stop and look up in disbelief. "Oh, and then there was that other on ..." They'd start going through their entire record. I've had fun with those little tricks.

Many times, you find a defendant on the stand makes a really bad witness for himself. They then have the opportunity to come out with more incredible statements that will really hurt themselves.

I had one who was being examined by his own defense attorney. They were trying to sell their version of this entire story: This parolee who had just gotten out of prison snuck into this bar on a cold winter night, just to get in out of the snow and the sleet and the rain, just to be protected. There was nowhere else he could go. The defense attorney leads his client through this whole thing, and he finally says, "And why did you break in to that bar?"

"To steal the money."

Of course, I didn't cross-examine him at all. I didn't want to destroy his credibility. I didn't want to show that he had a terrible, horrible record, and you couldn't believe a word he said. I wanted the jury to buy that story that he broke into the bar to steal that money.

A man murdered his wife of twenty-five yearsbeat her to death. Then he went off to see the girlfriend he'd found at his job with the Department of Transportation. The two of them went to her son's Little League baseball game. The guy drove home, stuffed his dead wife in the back of their minivan, and drove up to the hospital. Maybe he had some idea he could deliver her to the emergency room and everything would look accidental, but he chickened out on that one and never quite made it to the emergency room. He put the car in the parking lot and left. The body wasn't found until days later, when passersby began to notice the odor.

He hires a big defense attorney. Months earlier, this attorney had a case where he defended a guy who murdered his wife and got a not guilty. I feel certain the publicity surrounding that case got him hired for this one. The guy pays this lawyer a ton of money. The defense star comes down with his partner and co-counsel. They say to me, "Hey, man, what's the deal going to be?" He can plead to second-degree murder, I said, "and according to the sentencing guidelines, he'll probably get twenty-two years."

"You're out of your mind," they said. "How about twelve to fifteen years?"

"No. The grand jury indicted him for first degree, the family is agreeable to second, but I'm not going lower than twenty-two years."

They say no, and we go to trial. The case is getting lots of media attention. My guess is that the defendant's attorney was calling them.

After I proved my case, the defendant took the stand and admitted doing it, but he said it was self-defense. The problem is there were four huge, distinct blows to the woman's head. So I said, "Mr. Hiller, after the first blow to her head, when she was on her knees, did you still feel like your life was in danger? After the second blow, was she still threatening you with bodily harm?" I crucified him in cross-examination. It was ugly. I'd love to read it again myself. "Mr. Hiller, when you left your girlfriend's house, did you kiss her goodnight?" He didn't answer me, or he would dodge the question. So I had to keep saying over and over again, "Answer my question, Mr. Hiller. Did you kiss your girlfriend goodnight?"

Finally, he croaks out, "Yes." It was the perfect picture. He kisses her goodnight, then hurries home to stuff the body of his dead wife into the back of the minivan to get rid of the evidence.

The jury came back in eighteen minutes. Guilty, first-degree murder. The defense co-counsel was across the street at Little Michael's getting a sandwich. He missed the verdict entirely.

14.4. Example: Criminal Defense Attorneys in Their Own Words

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The following is from 30 Loyola Law Review, Symposium: The Responsibilities of Criminal Defense Attorneys. How do these lawyers envision 1) their roles; 2) their struggles; 3) the prosecutors?

THE RESPONSIBILITY OF A CRIMINAL DEFENSE ATTORNEY

by Dan K. Webb[footnoteRef:1] [1: Chairman of Winston & Strawn's litigation department and a member of the firm's executive committee; joined Winston & Strawn in 1985 as a partner, after serving as the United States attorney for the Northern District of Illinois; Fellow of the International Academy of Trial Lawyers and the American College of Trial Lawyers; co-author of Corporate Internal Investigation (Law Journal Seminars Press, 1993).]

I take great comfort in the title of this Symposium by the Loyola of Los Angeles Law School: Responsibilities of the Criminal Defense Attorney. I read and hear much discussion about criminal defense attorneys, but too often it seems focused on our battles at trial, our fees, the publicity that accompanies our cases, or gossip about personal lifestyles.

Criminal defense attorneys, indeed all participants in the criminal justice system, live in an era of heightened scrutiny, particularly as a result of increased access to courtrooms by the electronic media. A phenomenon like Court TV was barely imaginable when I began my career as an attorney, but television cameras in the courtroom are now an accepted part of our judicial landscape. I suspect that one by-product of this increased media access to the judicial system is that people are changing their attitudes about the personnel who make the court system function. Judges, witnesses, and especially attorneys are now the subject of on the spot analysis of a kind formerly reserved for stage actors or professional athletes. As is true of actors and athletes, those who are less competent freely criticize the efforts of those on the public stage.

Public attention to the legal system, of course, is not all bad. To the contrary, this country has a constitutional heritage of public scrutiny for its judicial proceedings, especially when issues of personal liberty are at stake. However, I feel strongly that the media has shown an increasing tendency to sensationalize the work done by criminal defense attorneys, to remove it from the ambit of responsibility, and to treat our efforts as though we practiced a new form of entertainment. The drama and intrigue inherent in a criminal trial are natural attractions to the media, just as they are often the feature that attract young lawyers to serve as criminal defense counsel. The challenge we face, however, is to remain mindful of the responsibilities that attend this job of being counsel for the accused.

This job can be difficult to do in the glare of public attention, particularly when the media issues daily reviews of our trial efforts. Arguments and examinations are assessed in terms formerly reserved for movie or restaurant reviews. Grades are awarded for our efforts. Predictions are made about whether a particular tactic will succeed. Hours of intense trial examination are condensed into sound- bite snippets designed for the evening news. The public is asked to draw ultimate conclusions of guilt or innocence based on fractional portions of the evidence actually received at trial. Increasingly, people who report on criminal litigation are more concerned with style than substance, more conditioned to seek a new angle than to seek both sides of a story.

All of this, I fear, subtly teaches us the wrong lesson. When a criminal case receives substantial media attention, it is probably because the nature of the crime or the identity of the defendant makes for a good story. Perhaps unavoidably, the media seeks to portray the story as a confrontation between good and evil, between truth and lies, between justice and lawlessness. As the coverage intensifies, the lawyers are placed on opposing sides of the drama: one lawyer is good, a seeker of truth, a champion of justice. Inevitably, the opposing counsel must be cast in the role of the dark side, the obfuscator, the trickster, the champion of loopholes and technicalities. Usuallybut not alwaysthe media assigns these roles in a traditional way, such that the prosecutor is good and the defense attorney is bad. In an era when increased media attention has failed to produce an increased appreciation for the roles played by a prosecutor and a defense attorney, such polarized caricatures abound.

It has been my good fortune to serve as a prosecutor during my legal career, first as an assistant United States attorney, and later as United States attorney in Chicago. I know what it means to accept the burden of proof when presenting a criminal case to a jury. I know that prosecutors must constantly be vigilant against the notion that, by virtue of their office, they are entitled to do whatever it takes to win. I understand the pressures to win that prosecutors may encounter, whether from zealous law enforcement agents, aggrieved victims, or from media attention to their case.

Likewise, a decade of experience as a criminal defense attorney has taught me the pressures that bear on criminal defense counsel. The challenge I face, that all criminal defense counsel face, is to separate the pressures that matter from those that must be irrelevant if we are to correctly do our job. The pressure brought about by public scrutiny should not matter. The pressure brought about by instant analysis of our efforts must be ignored. The pressure to live up to the roles assigned by the media must be resisted.

The only pressure that I care about is the pressure to accept, acknowledge, and discharge my responsibilities as a criminal defense attorney. First is the responsibility I bear to my clients. Clients face enormous challenges. Clients may feel that their lives are shattered and that there is no hope for future happiness. Clients may feel abandoned by friends and shunned by the community. If clients are convinced of their innocence they often feel victimized by a system they formerly respected; if they acknowledge guilt, they often suffer tremendous shame for the disgrace they feel they have brought upon their family. Virtually no one seems to offer a reason to hope for the future.

My responsibility to my clients is clear. I must restore my clients' willingness to go forward and endure what is to come. I must allow them the opportunity to express concerns and frustrations. I must listen to their side of the story and work to assure them that there is at least one person who does not intend to pass judgment. Most of all, I must give my clients confidence that if their case goes to trial, I will do everything within the law to convince the jury or judge that the prosecutor has failed to establish guilt beyond a reasonable doubt.

I cannot be a client's psychiatrist or emotional counselor, but I must be a fixed point of reference for that client. I must work to assure that the client understands the situation, understands the nature of the charges, and makes pivotal decisions in a rational and informed manner.

Next is my responsibility to the criminal justice system. In this regard, I view my role in rather simple terms. The system works best when I do my best. As a prosecutor, I never hoped for a lazy or incompetent defense attorney as my opponent. I was never comfortable if my opponent was not doing a competent job because I fully appreciated the awesome power I exercised as a prosecutor, and I knew well the ability I had to deprive criminal defendants of their liberty. If I won a conviction, I wanted the assurance that justice was done. That assurance comes only after the adversarial system has been put to the test by an aggressive and energetic defense attorney that challenges the prosecution in meeting their burden of proof.

Last, but certainly equal to the first two, is my responsibility to myself. I am a trial lawyer by choice; whatever other skills or gifts I may have, I know that being a trial lawyer is the only way I wish to make a living. Because I have been fortunate enough to attain success in my career, I am sometimes asked the secret of that success. Perhaps the questioner expects a lecture about the fundamentals of cross- examination or a discussion of effective trial strategies, but those elements are secondary. The reason I have achieved a level of success is simple; trial work is what I want to do. I am motivated to succeed, which means that I am motivated to work hard. I am like a great many defense counsel; I have won some and I have lost a few. But, I am able to assure myself that in each and every case I worked as hard as I could, I used all my professional skills to the best of my ability, and I gave my client thorough and effective representation. Ultimately, in our adversarial system, I cannot control the outcome of a verdict. I can, however, control the amount of effort and care I devote to a criminal defendant's case.

These three responsibilitiesto the client, to the system, and to one's selfare familiar territory for law students and lawyers. In an abstract world, there can be no controversy associated with accepting and discharging these responsibilities. But we do not live in an abstract world, and the public attention devoted to our efforts as criminal defense attorneys tends to distort our views of these responsibilities. These three responsibilities are like the legs of a stool; if one leg is too short or too long, none of them can perform their intended function. If criminal defense counsel overemphasizes or underemphasizes any one of these responsibilities, they run a significant risk of failing to do an effective job.

Simply put, criminal defense counsel must have the courage and fortitude to discharge their responsibilities as they see fit, not as the instant experts of the media see fit. Not every criminal defense effort calls for extensive and flashy trial work; sometimes the best strategy is to lay low throughout trial--particularly in multi-defendant cases. Although some cases require an aggressive public posture and direct interaction with the media, other cases call for a lower profile and require defense attorneys to circumscribe public comments. On a more fundamental level, some cases call for a negotiated plea because that best serves the clients' legitimate interests, while others mandate trial even in the face of seemingly insurmountable odds. Defense counsel must have the ability to constantly reinvent themselves, to adapt to the unique circumstances presented by each case, and to react according to the needs of a specific case and not according to what worked in another case at another time.

Most significantly, defense counsel must remain true to the craft they practice, to the profession they pursue. Trial lawyers must have self-confidence and a public presence, which are often mistaken for an overdeveloped ego. They must constantly strive to assure that they find gratification from their work. This must be found, not by measuring how the public--and especially the media--evaluate their work, but by measuring whether they are secure in their own belief that their efforts furthered the cause of justice. Our responsibility is not to ensure that we receive good reviews from the world at large. Our responsibility is to serve first our clients, second the system in which we participate, and third ourselves as practitioners of an honorable profession.

This takes courage. It takes courage to stand beside a person who is the object of public scorn and insist that this person, like every person, is entitled to a presumption of innocence. It takes courage to pass a phalanx of cameras and reporters and to walk away from free publicity because that is in the client's best interest. It takes courage to aggressively confront a prosecutor's office and insist that they meet their burden of proof in a highly publicized case, knowing that you will later need to approach those same prosecutors on behalf of other clients. More than anything, it takes courage to demand that justice be done in a case already decided in the court of public opinion. Further, it takes courage to remind the public that issues of personal liberty are too precious to be decided outside of a courtroom.

That is why I admire criminal defense attorneys, why I am proud to count myself among their number. Contrary to popular opinion, good defense lawyers do not really think they are the only good lawyers on earth. Rather, I suspect that most quality defense attorneys are like me; they enjoy watching other professionals do a good job and take pleasure in the successes of their colleagues. I admire good defense attorneys because they appreciate that this job, this profession, is not about fame or notoriety. This job, this profession, is about participating in an important and valued aspect of American life. Few other professionals must be so immune to the whims of public opinion. Few other professionals must be so willing to absorb hostility on behalf of another. Few other professionals are as susceptible to the Monday-morning quarterback mentality that measures effort according to the result instead of according to skill displayed.

Most of all, few professions pose the irony of criminal defense work. When we win, when our efforts bear fruit in an acquittal, too often the public is informed that we have thwarted justice. As criminal defense counsel, we of course understand that by putting the prosecutor to the constitutional burden of proof, we in fact assure that justice has been achieved. However, the media may report that we have harmed the interests of justice, that we have pulled a fast one on the system. The unhappy irony is that we who revere the system are portrayed as its enemies; we who assure justice are labeled as impediments to the justice to which we subscribe. As criminal defense counsel, our responsibility is to our clients, the system, and to ourselves as professionals. Layered atop each of these responsibilities is our responsibility to each other as participants in this noble effort, to offer each other encouragement and support. If we cannot expect public acclaim for our efforts, if we must endure flawed logic by those who review our work, we can at least assure that within our own number, we maintain the integrity of our craft. We must reject the temptation to adapt our techniques to what we see praised on television. We must resist the tendency to seek public approval for demanding justice on behalf of unpopular clients. We must remember that a reporter's critical analysis of our efforts can be very wrong, and it is made worse by virtue of the fact that it is repeated in the media and disseminated across the country.

Each of us, on an individual basis, must work to maintain our professionalism and integrity. We are heirs to a tradition that dates back to Lincoln, that invokes names like Darrow, and that is carried out in every city of America by public defenders who toil for low wages, motivated only by their sheer dedication to cherished principles. We can be proud of the work we do, because of the way in which we do that work and the benefit it brings to our entire society. Thousands of years ago, the author of the Book of Proverbs wrote words that apply with equal force today: When justice is done, it brings joy to the righteous but brings terror to evildoers. No better job description exists than to say, they bring justice. No profession can provide a more honorable responsibility. Let us resolve that our acceptance of this responsibility will not be diminished by the voice of popular opinion, but will instead be encouraged by the belief that we do justice when we remain true to our own unique role in the adversarial system.

14.5. Example: Free Advice from a PD (as posted on Craigslist.com)

First, let me say I love my job and it is a privilege to work for my clients. I wish I could do more for them. That being said, there are a few things that need to be discussed.

You have the right to remain silent. So SHUT THE FUCK UP. Those cops are completely serious when they say your statements can and will be used against you. Theres just no need to babble on like its a drink and dial session. They are just pretending to like you and be interested in you. When you come to court, consider your dress. If youre charged with a DUI, dont wear a Budweiser shirt. If you have some miscellaneous drug charge, think twice about clothing with a marijuana leaf on it or a t-shirt with the UniBonger on it. Long sleeves are very nice for covering tattoos and track marks. Try not to be visibly drunk when you show up.

Consider bathing and brushing your teeth. This is just as a courtesy to me who has to stand by you in court. Smoking 5 generic cigarettes to cover up your bad breath is not the same as brushing. Try not to cough and spit on me while you speak and further transmit your strep, flu, and hepatitis A through Z.

Im a lawyer, not your fairy godmother. I probably wont find a loophole or technicality for you, so dont be pissed off. I didnt beat up your girlfriend, steal that car, rob that liquor store, sell that crystal meth, or rape that 13-year-old. By the time we meet, much of your fate has been sealed, so dont be too surprised by your limited options and that Im the one telling you about them.

Dont think youll improve my interest in your case by yelling at me, telling me Im not doing anything for you, calling me a public pretender or complaining to my supervisor. This does not inspire meit makes me hate you and want to work with you even less.

It does not help if you leave me nine messages in 17 minutes. Especially if you leave them all on Saturday night and early Sunday morning. This just makes me want to stab you in the eye when we finally meet.

For the guys: Dont think Im amused when you flirt or offer to do me. You cant successfully rob a convenience store, forge a signature, pawn stolen merchandise, get through a day without drinking, control your temper, or talk your way out of a routine traffic stop. I figure your performance in other areas is just a