FELONY MURDER

“I will set you free.”

Exodus 6:6

For a criminal defense attorney, the story of Passover, the freeing of the Jewish slaves from Egypt, has to be inspiring.  Isn’t the unspoken and at times spoken motto of our profession “Let my people go?”

The analogy fails, most of the time, because we represent clients who usually have done something wrong that our laws say merit punishment. The Jews on the other hand, were in bondage.  But this question, at its core, is the examination of the unjust bondage of people.

The federal government and the justice department have now, slowly, begun to recognize the unjust incarceration of tens of thousands of low-level drug offenders, the victims of the 1980’s war on drugs.  Our prisons are littered with harmless inmates, many of whom did nothing more than make the mistake of agreeing to take a package for someone for a few dollars. These people- mothers, fathers, grandparents- are serving draconian sentences of decades. The tide is beginning to turn.

Not so for Florida’s felony murder law.

In Florida, a person can be convicted of first-degree murder two ways. There is the traditional way of intentionally killing someone with premeditation, and there is the untraditional way of being involved in a different crime- a felony, in which someone is killed, almost always unintentionally. 

The crimes are different. By definition the type of person is different- the cold hearted killer versus the person being in the wrong place at the wrong time, but  the penalties are exactly the same: execution or life in prison without the possibility of parole.

For prosecutors, the felony murder rule greatly simplifies their burden of proof. Premeditated first-degree murder contains an element of proof- planning and premeditation that is often hard to prove. But if, before, or during the murder, the defendant took something, even of small value, then the prosecutors can charge both premeditated murder and felony murder, and the jury can choose between whatever theory they want. The prosecution  does not need to prove premeditation in felony murder cases. The penalty is the same when the defendant is convicted; he or she is treated as if they had committed the worst possible crime- premeditated murder, and sentenced accordingly.

I recently concluded the representation of a young man, who at age eighteen was accused of going with four other young men (their ages ranging between sixteen and eighteen at the time) and burglarizing the house of a wealthy athlete.  My client was not the person who brought the gun and was not the person who fired the weapon, but my client was facing just as much time –life in prison without parole- as the person who fired the gun.

The case was a tragedy in every sense of the word. A young man with a family was killed in the prime of his life. He was not supposed to be home at the time of the burglary, and a tragic set of circumstances put him the position of being unable to call 911 and having to defend his family, which resulted in one errant gunshot that hit him in the leg and caused his terribly tragic death.

My client spent seven years in pre-trial detention contemplating his role in that one horrible night that took a life, and ruined several. My client had a negligible juvenile record. He came from a broken home, but with a mother who loved him dearly and did her best. He was a high school athlete, and had fathered a child before he was arrested. In jail he matured from a teenager into a young man; thoughtful, introspective at times, and almost uncomprehendingly frightened at the prospect of the  loss of most of the rest of his life.

If we tried the case, we risked losing the felony murder count, and the judge, one of the best I have ever had the pleasure of knowing, would be forced to sentence him to life in prison without parole. If there was a deal to be made, it would have to be made with the prosecution, because in Florida, only prosecutors can reduce charges and waive minimum mandatory sentences.

The prosecutor was and is, in my opinion, the best lawyer in his office. He is fair and honest and thoroughly prepared. He would have every advantage at trial and I couldn’t count on him making any mistakes. Behind the prosecutor was the family of the deceased, justifiably aggrieved at the loss of their son. I am a father. I would feel the same way. 

But I couldn’t negotiate this case based on what was fair. I couldn’t involve the wise and experienced judge into the negotiations, getting his input on what was a fair sentence, because Florida’s legislators have rendered judges mostly powerless in sentencing defendants in cases where there are minimum mandatory sentences.

So I had to deal with the prosecution, which meant I was really dealing with the family of deceased,  and the prosecutors were middle-men.  Not to cheapen this process or the lives and pain of all involved, but imagine buying a car where every time you make an offer the salesman leaves to go and “speak with his manager.”  Any offer I made to resolve the case had to be cleared with the family of the deceased. So now I was dealing indirectly with people whose emotions were justifiably dictating their feelings. I don’t begrudge for one moment the pain they felt or their hatred of my client, but should they have been the ones making the decision in this case?

Because that’s what Florida’s felony murder laws have done. The judge is powerless to waive the minimum mandatory life sentence. Only the prosecution can do that. And prosecutors won’t make an offer to resolve a case that the next of kin won’t approve.

So to defend my client and work to have him justly sentenced for his role in this case,  I am indirectly dealing with the people whose emotions are justifiably inflamed. Powerless to stop the death of their loved one, they now hold almost all the cards over what the punishment should be. Is that what we want? Victims deciding punishment? The role of a judge reduced to a bystander. The role of a prosecutor reduced to a conduit of plea negotiations. The roles of professionals reduced, while the roles of non-professionals and their emotions dictate what the final sentence will be.

I am not an expert, but isn’t this what Sharia law requires? An eye for an eye? Hands chopped off for stealing, people lashed in a public square for premarital sex or dancing in public.

Whether or not we want this system, that is the system we have. I do not advocate for silencing victims or next of kin. They should be heard. But they are the least able to arrive at a fair and just sentence, and yet they are currently in many cases the final arbiter of such sentences in cases like these.

Nobody won here. I did my job with my trial partner and we saved my client’s life. He will not spend the rest of his life in prison. But in my opinion his sentence is ten years more than it should have been. And if I am wrong, then I would rather have a judge make the final decision and tell me I am wrong, then have the sentence issued de facto, by the family of the deceased.

I practice a profession and I write this blog about my profession. I   Perhaps many non-professional people who have suffered the murder of a loved one will think very critically of this essay. “My son is dead” they will say, “your client isn’t. He can still call his mother.” And they are right. Their pain is never ending and they have the right to mourn their loss and  hate the people involved. I can’t ever challenge their feelings nor would I. They are, in a word, “entitled” to feel the way they feel.

Are we a State that is ruled by law and that sentences its citizens in a rational and fair way? Or do we believe that there should be no fairness in sentencing? That those who are involved in a murder, in even the most tangential way, should suffer the ultimate penalties?

Right now, from my perspective, I do not like the answers I am seeing to those questions. 

THE MAN TO SEE

Edward Bennett Williams is the father of modern criminal defense attorneys. Williams, before other famed criminal defense attorneys of his generation like Lee Bailey, made criminal defense a respectable profession. In post WWII Washington, DC., at a time before public defenders, the profession of criminal defense was viewed poorly by both the legal profession and the general public. Criminal defense attorneys were viewed like their clients- unprincipled mouthpieces who would lie and cheat and steal to help their clients lie and cheat and steal. The sixth amendment’s right to counsel was a concept, not a reality. Williams made it a reality.

By the time he died in 1988 at the age of 68, Edward Bennett Williams was famously known as “The Man To See.” Williams was the attorney for Senator Joe McCarthy, The Washington Post (Williams told Ben Bradlee to publish the Pentagon Papers and not worry about anything), Holy Cross, a collection of 1960’s Mafioso as well as Lucky Luciano, Senator John Connelly, Congressman Adam Clayton Powell (as Williams gave his closing argument in Powell’s tax evasion case, Powell was so moved that a newspaper columnist noted that Powell had a look of utter amazement on his face as he was as shocked as anybody to learn he was innocent!),  Jimmy Hoffa (acquitted of all charges in the case Williams represented him on), Victor Posner, and Michael Miliken.   Along the way EBW advised presidents from Johnson to Reagan and twice turned down offers of appointment to head the CIA (the first time he turned it down, President Ford appointed a little known former Congressman named George Herbert Walker Bush).  Williams was a minority owner of the Washington Redskins (but during his ownership he mostly ran the team) and full owner of the Baltimore Orioles.

         Williams argued and won several cases before the US Supreme Court, including the famous “Wong Sun” “fruit of the poisonous tree” case, and one of the first cases requiring the government to get a warrant before it could wiretap its citizens.

What haunted Williams was the pressure to win. Williams started his career with a remarkable streak of acquittals in famous criminal cases. The pressure to not lose began to bear down on him. Williams would commiserate with sports figures like Vince Lombardi (who Williams hired to coach the Redskins, but who died shortly thereafter of rectal cancer). Williams noted that for Lombardi to have a successful season his team could  still lose three or four or even five games. Lombadi told Williams that “success is like a narcotic. One becomes addicted to it but it has a terrible side effect. It saps the elation of victory and deepens the despair of defeat.”

 While a football coach could lose a few games and have a successful season, in the practice of law, one loss was a catastrophe for Williams. And this was in an era before sentencing guidelines and minimum mandatory sentences made the loss of any criminal case life altering. (Williams lost Victor Posner’s fraud case in Miami, then got the verdict set aside because of juror misconduct, and then convinced Miami Federal Judge Eugene Spellman to give Posner probation in exchange for a large multi-million dollar donation to a Miami Homeless center.)

In an interview with the Washington Post, Williams said “If a man does a brilliant job and loses, people don’t say he was brilliant. They say he lost. This is the price of reputation.”

Williams key to success was simple: he out-worked the other side. Williams prepared more, worked more, and knew his case better than any other lawyer in the court. But the obsessive preparation had a price. After the jury acquitted  Texas Senator John Connally on corruption charges, Williams told People Magazine: “ At the end of every case like this, I feel like I’ve shortened my life another notch.”

One of his partners once watched Williams prepare to defend a notorious organized crime figure. Just before trial Williams took the several dozen boxes of files into his office and methodically pulled out and refilled each piece of paper just to make sure the file was accurate. Williams later remarked to his partner “Fighters don’t quit because they get tired of fighting. They quit because they get tired of training.”

Edward Bennett Williams beat the federal government at trial more than probably any other lawyer ever did or ever will. Yet Williams was never accused of being unethical. Williams used every trick in the book- and he wrote the book on tricks. In the Jimmy Hoffa trial before a mostly black Washington DC jury, Williams notoriously had heavyweight champ Joe Louis come into the courtroom and the jury watched just as court broke for lunch as Hoffa and Louis hugged like brothers. Williams played a race card when playing a race card was nothing more than showing respect for African Americans. When Williams defended Senator John Connally and noticed that an African American juror always carried a bible to court, he called the Reverend Bill Graham as a character witness:

EBW: Tell the jury what you do for a living.

Billy Graham: I preach the gospel of Jesus Christ around the world.

Juror (loudly) AMEN!

Not guilty.

The government was beaten so badly in the Connally case that the bookish prosecutor (who rode his bike to court- Williams arrived in a limo) was reduced to saying this at closing: “The case is not a contest among lawyers…this is not about whether Edward Bennett Williams is a better lawyer than we are. On that point I don’t think there is much doubt. I hope you don’t hold the inadequacies of the government’s lawyers against us.” The judge then interrupted the beaten prosecutor to ask him to use the microphone. Nobody could hear him.

Williams defended clients in simpler times. He met prosecutors and judges for drinks after cases. White-collar clients who lost were usually sentenced to probation and a large fine. Williams could head off many indictments by walking into the Attorney General’s office and speaking with the Attorney General to plead his case against an over zealous prosecutor in New York or Chicago who was about to charge his client. Judges fawned over him. One prosecutor in a Midwest town was dismayed to learn that the Judge had invited Williams to speak over the lunch hour to a group of new citizens that the judge was swearing in. The prosecutor and the judge had grown up together in the same small town. But the judge introduced Williams as the “famed lawyer who defends anyone and rarely looses.” After a series of favorable rulings, Williams won that case as well.

But what stands out for  me in the life of Edward Bennett Williams is the pain and dread he felt in preparing for cases. Not that I am comparing myself to the greatest criminal defense attorney of his era, but there is a desire among good trial lawyers to leave as little to chance as possible. We wake up in the middle of the night and worry whether all the papers in the ten box file are in the right order;  we wonder how to  handle the difficult witness or whether to have the client testify (Williams invariably put his client on the witness stand, I rarely do).  And as Williams said, as each trial ended, I cannot at times help but wonder the toll trials take on myself. I relish the fight, but the training sucks.

Its no wonder that for many reasons when I try a case, I often play Bruce Springsteen’s “No Retreat No Surrender.” The song is inspirational and the title sums up my feelings about trials. And yet these lines in the song haunt me:

         “Now on the streets tonight the lights grown dim

         The walls of my room are closing in.

         There’s a war outside still raging

         But you say it ain’t ours anymore to win.”

PLR 

NOT IN PRAISE OF ATTICUS FINCH

I write not to praise Atticus Finch, the heroic trial lawyer in Harper Lee's American classic novel, To Kill A Mockingbird. I write to criticize him. 
Yes, I know every criminal defense attorney in the United States envisions themselves as Atticus, heroically standing before the jury in Maycomb, Alabama, a small southern town, defending Tom Robinson, wrongfully accused of raping Miss Mayella Ewell. 

For those of us who grew up wanting to try cases, Atticus was our Joe Namath, the underdog.  He was Cassius Clay (before he was Ali) fighting  Sonny Liston for the title. Liston was not just predicted to win, but there were people who truly thought Liston would kill him. He was Ali in Kinshasa, Zaire, against George Foreman, who was also predicted to kill him. Clay/Ali won both fights; each by a knockout. When we were Atticus, it was the bottom of the ninth, game seven, down by two, with two out and two on.  Atticus was the 1980 US Men's Hockey Team against the Russians.   Atticus was the 1969 Miracle Mets. 
Atticus Finch was the ultimate heroic underdog in the fight of good versus evil. The only problem is that Atticus lost.  Tom Robinson was convicted of rape, and that has always bothered me. 

From the trial lawyer's standpoint, we all can admire Atticus's defense: Tom Robinson couldn't have caused the injuries to the right side of Miss. Ewell's face because his left arm was left useless in a farm accident at the age of twelve.  Atticus proves that Miss Ewell's father Bob, who not only was a mean drunk who beat his family, but was left handed to boot.  A left handed man most likely caused most of the injuries to the right side of Mayella Ewell's face. 

But (at least in the movie version I recently re-watched for at least the thirtieth time) Atticus the trial lawyer leaves something on the table. Atticus misses a big piece of evidence that favored his client. Bob Ewell testified that as he is coming home he hears his daughter screaming and looks in the window and sees Tom Robinson attacking Mayella.  But Mayella Ewell testified that when her father came home he kept asking her "who did this to you?"
As you can see, Bob Ewell wouldn't have never said "who did this to you?" if his testimony that he saw Tom Robinson in his house was to be believed.  So the testimony of the victim and the eyewitness are in conflict on a crucial point.  Atticus Finch missed this point. In all probability it wouldn't have mattered, the southern jury was going to convict a black man for raping a white woman. Tom Robinson's testimony that he helped Miss Ewell with chores and felt sorry for her was just too incredible to be believed. Black men didn't feel sorry for white women in Alabama in 1935. 

In the course of my practice, I defend people charged with the death penalty. There are two parts to a death penalty case (maybe). The law in Florida requires that a defendant have two lawyers, one to prepare each part. In the first part of the trial, there is a lawyer who defends the client in the traditional sense. If the client is acquitted or found guilty of a lesser crime, the case ends. This is the role I prefer. As I like to flippantly say (but really mean) "If I can't win, I don't like to play."  The second phase lawyer's job is to prepare a mitigation defense for the penalty phase of the case, if the client is found guilty. 

The mindset of most lawyers who handle death penalty cases is that a life in prison plea (or verdict) is a win. I respect my colleagues. Lord knows, they defend people accused of some very horrific crimes. But I cannot accept their mindset. I do not think life in prison is a win or something to celebrate. And I do not like to lose. 

I admire Atticus Finch. Of course I love what he stood for. He had the courage to represent a black man in a small southern town accused of raping a white woman. I understand from the novelist point of view why he had to lose the case. Harper Lee had a point to make about the small southern town she grew up in. Atticus winning the case does nothing for the novel. 

So I get it. And To Kill A Mockingbird is one of my favorite novels-perhaps my most favorite novel. 

I just don't like that Atticus lost the case and I never will. 

PLR

ON WRITING (PART ONE)

NY Times Op Ed Columnist recently wrote a piece on the Israel and the Middle East. He interviewed Israeli author Amos Oz:

Here is Amos Oz on writing a novel: “It is like reconstructing the whole of Paris from Lego bricks. It’s about three-quarters-of-a-million small decisions. It’s not about who will live and who will die and who will go to bed with whom. Those are the easy ones. It’s about choosing adjectives and adverbs and punctuation. These are molecular decisions that you have to take and nobody will appreciate, for the same reason that nobody ever pays attention to a single note in a symphony in a concert hall, except when the note is false. So you have to work very hard in order for your readers not to note a single false note. That is the business of three-quarters-of-a-million decisions.”

Having now written two novels, both of which are in the editing process,  (not to mention the “I would love an agent and publisher” process") a few dozen aphorisms came to mind when I read what Oz said: “Been there, done that”; how about “it ain’t bragging if you can do it”; and finally “he can walk the walk and talk the talk.”

I cannot draw. I am not musically inclined. For most of my adult life, creativity came from either a well cooked meal, or a unique sentence or two tucked into an otherwise boring motion or brief on appeal. And of course, the perfect zinger on cross, or the penultimate part of a closing argument, before the perfunctory ending imploring the jury to acquit my client.

As a prosecutor I was assigned to prosecute a drug trafficking case (as shocking as that  may seen in Miami circa 1980’s). The defense however, was unique:  that the two kilos of white powder the defendants were negotiating to buy was –they thought- Cascaria- a white powdery substance used in the Santeria religion. 

The defense listed a Santeria priest as a witness, and I am surely one of the only lawyers to have ever cross examined one (although I remember a well publicized lawsuit in New York City over  a Santeria church shut down because they were sacrificing animals.)

         The priest testified that the white cocaine powder in evidence looked exactly like Cascaria, which was a powdery substance  used to cleanse away evil spirits.  He testified he had been hired by the defendants and had told them to meet the individual who would sell them the Cascaria they needed for his services. Instead, the defendants somehow mistakenly wandered into a drug deal (which wasn't really that difficult in some parts of Miami in those days.)

         It was my first really good cross examination as a prosecutor. In many cases, prosecutors are often reduced to presenting their own witnesses and simply asking “what happened next?” No offense to my colleagues who are prosecutors, but clearly we defense attorneys have the more interesting roles in trial. Cross is always more fun than direct.

I took the priest through a careful explanation of Cascaria:

“You need this powder for your religion?”

 “Yes.”

“You use this powder by sprinkling it?”

“Yes”

(No surprise that every day when I arrived to court, there was a small sprinkling of white powder near my chair. This was in the days well before 9/11 and the subsequent anthrax scare. I just ignored it. There are legions of stories of the City Of Miami Bomb Squad blowing up suspicious boxes left at the courthouse that were later determined to have a dead chicken inside-another Santeria ritual designed to help some defendant in court that day. I always wanted to see one of those explosions. I kept imagining the curses as a jumble of feathers floated down to earth.)

“In this case you were hired to clean the new house the defendants bought of any bad spirits?”

 “Yes.”

Then a thought came to me. It wasn’t planned. I had sort of had an inkling of where I was going with the cross, and luckily, the next few questions  came to me. I am not a proponent of this type of cross examination. The best lawyers who seem to think on their feet have actually labored over every word and line-like Amos Oz labors over every word and apostrophe and comma.

“The Cascaria would help clear the house of bad luck?”

 “Yes”

I walked over to the evidence- two kilos of cocaine and held them up to the jury dramatically:

“Sir. This is four and half pounds of cocaine. How much bad luck can someone have?”

I remember the line. I remember how satisfying it was. I remember the look on the defense attorneys faces, as they saw their defense crumble. I must admit, I do not remember the answer. But it didn’t matter. The jury returned with guilty verdicts and I had won my first big trafficking trial.

 I wanted this post to be about the joys and agonies of writing. About my putative career as a new novelist. About how I was struck by Amos Oz’s words and how I thought to myself “exactly!”. That is exactly how hard it is to write.

So you will have to tune back in for “On Writing-Part Two.”

Who was it who said about an entertainer and the audience: “Always leave them wanting more?”

PLR