A DEATH SENTENCE

 Two  weeks ago I stood next to a man who was sentenced to death.

Never did that before. Never want to do that again.

The circumstances of how that occurred are somewhat unique.

During the past two weeks friends in the courthouse who saw the picture of me next to the defendant and story in the Herald have been coming up to me offering words of condolences.

Nobody really understands the circumstances of how I found myself in court next to a defendant I had met only a few days before, acting as co-counsel as the court sentenced him to death  

The defendant was represented through trial, where he was found guilty, and through the penalty phase where the jury recommended death, by the Dade County Public Defender’s Office. After the penalty phase was concluded, a conflict developed and the Public Defenders had to withdraw. And when I use the term conflict, I am using it in the legal sense, not that the defendant was angry at his lawyers. He was not.

So the court appointed my trial partner Kellie Peterson and myself to essentially stand next to the defendant while the court handed down the sentence.If you know Kellie and if you know me, you know we were not going to just stand idly by. We filed what motions we could to stop the process, primarily relying on the fact that the United States Supreme Court is going to decide next October if Florida’s death penalty sentencing scheme, which allows for a non-unanimous jury to make a recommendation of death, is constitutional ( it is not constitutional-  a subject for another blog post, and  if Justice Scalia happens to read this, I will get that one up soon. Promise.)

So there Kellie and I stood as the trial judge went through the litany of very difficult facts of the murder in this case.  But I wasn’t standing right next to the defendant. Edith Georgi, who was the defendant’s lawyer through the trial and for the last several years stood next to her former client. She couldn’t technically represent him anymore, but she was there.

For those of you who don’t know Edith Georgi, let me make it simple- she is as fine a death penalty defender as there is in the United States. Period. She kicked my ass in a murder case when I was a prosecutor many years ago (I often wonder if she remembers that. I do. )

As the judge went through the specific acts,  she included in her sentencing order a fairly stirring and stinging  denouncement of the defendant's acts, Edith was there rubbing her former client’s back, whispering in his ear to be strong, and being as compassionate as a person-lawyer  can be.

I can’t get this scene out of my mind. The judge intoning the very horrible acts the defendant was convicted of committing, and Edith touching him and telling him to be strong and that it was going to be okay.

When the judge, in a biting comment, mentioned that the defendant had been a very religious person, leading bible classes in jail, and then said “but you forgot the commandant ‘Thou Shall Not Kill’ ”, I could feel the judge’s eyes burning into my client. I leaned over to Edith and whispered “She’s wrong. The sixth commandment says ‘Thou shall not commit murder’. The bible is full of instructions to kill.”   I briefly considered objecting, before deciding that in this instance discretion was the better part of valor considering that the defendant had in fact been convicted of murder. The death-sentence train was roaring down the track we were tied to. I could see it’s malevolent lights in the distance, growing stronger with each sentence of the judge’s order.

It’s easy to be compassionate to the most vulnerable amongst us- the homeless family, the sick child, an accident victim.  But how much harder is it to show human compassion towards someone who by all rights doesn’t deserve it?

But what Edith and Kellie and I know from a lifetime spent in these types of cases is that beneath the tattooed, hulking, frightening exterior of this convicted killer is a human being, who was once an innocent child, and who somewhere, in someway, went terribly wrong.

As Jesus said: “love the sinner, not the sin.”

Bless you Edith for those simple acts of compassion. I know they meant a lot to your client.

There is nothing heroic in defending the un-defendable. I reject that notion that some of my fellow criminal defense attorneys often wrap themselves in as they commiserate their losses. Quite frankly, it stinks. It’s awful. It wakes me up in the middle of the night and I stare at the ceiling in the darkness thinking sometimes of my client’s victims. Other times I wonder where my client went wrong- what moment in their life turned them from a normal human being who values life, into someone who committed a horrible crime?  And then invariably the questions about myself. Why am I representing them? Why don’t I just devote my trial skills to suing insurance companies? I could make a lot more money.

Each of us in this field has our own reasons for why we do what we do. I won’t speak for my colleagues. But in that windowless courtroom a few weeks ago, when I saw true humanity- a simple act of kindness by Edith Georgi, a remarkable lawyer and human being, I knew, despite all the pain, the impossible cases, the continuing stream of motions filed and denied,  that I am doing what I am best able to do. I am using whatever talents the good lord gave me, in the best way possible. And for now, (until my books get published ) that will have to be enough.

CHALLENGE EVERYTHING

In the television show House, House- the brilliant but cantankerous diagnostician doctor continually tells the doctors he is training "everyone lies".

And so they do. 

The challenge I face as a criminal defense attorney in every case I accept is not only to determine who is lying, but if everyone is lying, what is the truth? 

The fact that everyone lies was brought home this past week with the revelation that the vaunted FBI crime lab lied on almost every hair analysis case they handled for the past thirty years. In the wake of the scandal are the innocent men and women who were wrongfully incarcerated by junk science. In the last case I read about, the FBI matched a hair to a defendant, testifying that the odds of a match were one in ten million. The testimony turned out to be false.  The hair sample allegedly matched to the defendant was from a dog. About the best you could say about that is "right planet, wrong species."

The simple lesson for myself and my fellow criminal practitioners is to never accept any of the evidence the prosecution puts forward in any case without first investigating and challenging the evidence. Many times, for strategic reasons, I will not care if scientific evidence links a client to a scene. 

Say I am representing a woman who killed her domestic partner and wants me to raise the battered-spouse syndrome in connection with self defense. A fingerprint that puts the client at the scene is probably meaningless in terms of the overall defense. But a good criminal defense attorney examines all the evidence. Even though the client may not deny being at the scene, the ability to show that the prosecution relied on faulty -if not terribly relevant- evidence- is an opportunity many attorneys overlook. So the lesson from this week's FBI hair analysis scandal is to challenge everything. Or as an old, grizzled criminal defense attorney from Brooklyn once told me: "The only thing I waive (wave) in court is the American flag." 

When Lenny Fusfield told me that, I was a young and impressionable law student. It was one of the first lessons in courtroom strategy that I was ever given, and I can count the times I have deviated from that strategy, and most of the time it has been to my regret. 

When House said "everyone lies" he was talking mostly about his patients. In that regard, clients will often shade their version of events, many times to avoid upsetting me.  Clients think that if they tell me exactly what happened I won't want to represent them because of their criminal conduct. This is entirely natural.

But to quote Hyman Roth from the Godfather II "This is the business we have chosen."  As I often tell clients,  "If I couldn't represent people charged with what you have been charged with, I would have stayed being a prosecutor."

When my client's deny involvement in a crime, I want to believe them.  But I do so at my, and more importantly, their own peril.  And yet, as you will see below, I don't believe them at my own peril as well.

The more I know about the actual facts, the better I can help them. 
The more I know about what occurred, the better I am able to determine when police are engaging in, what I call TEJTM investigation: "The ends justify the means". 

I very often see police prevaricate their actions in an investigation because they are "sure" they have the right guy, and they'll be damned if they will let them get off because of something inconvenient like the truth. The best police investigators don't do this, and they are in fact the hardest for me to cross examine, because the truth is the truth and jurors will instinctively trust a police officer who is telling the truth, even if it is to the detriment in the case. 

The worst and perhaps most tragic example of this was my representation of a client in the re-trial of a tragic murder  that occurred in 1989. The client gave a confession, and then spent two decades saying that the police threatened his family and didn't honor his request for an attorney during the interrogation. The client was originally sentenced to death and the conviction was reversed for other reasons. During the second trial the tape of the interrogation surfaced after 20 years, and sure enough the client is on tape asking for an attorney and the police respond by threatening him and his family.  The police, having previously denied at deposition and the first trial what was now clearly on tape, were stuck with their former testimony. It did not go well for them at trial.

Everyone lies.  Except every now and then a client that has every reason to lie, and whom no one believes, tells the truth. And there is the ultimate challenge for criminal defense attorneys: to challenge the police when all the evidence seems in their favor and to believe the client when no one else does. 

It's a challenge. 

PLR. 


 

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