Saturday, June 25, 2011


It is the solemn duty of a criminal defense attorney to hold nothing back in his effort to obtain the best possible result for his client, even if he believes the client is guilty. If you recoil from such a hypothetical, if this knowledge, subjectively, prevents you from expending 100% effort, you cannot, you must not, choose criminal defense work. That is why this area of the law is undertaken by a relative few. I completely understand this disqualification of the many. Often, they will turn to another field of law and probably make a helluva lot more dough.That's the way it is.

But, every once in a while, this dormant conflict presents a moral morass, which pushes a lawyer's envelope to the limit. Tears him up inside, so that the results, although certainly a "victory", leave him soulfully branded, forever. And a brand, like a scar, is permanent. Such is the source of gray hair turning to white, and the the appearance of "crow's feet" in the eyes, as a criminal defense attorney is baptized and then matured by the agonies and ecstasies of many criminal cases. As in all things, hard work and pressure take their inevitable toil. But you know that, and, you assume that, going in. It's the juice that you dig.

A young woman was reported missing by her parents. Her father told the police that she had not come home the night before, from a date with the defendant, Smith. Shaken and angry, he set forth this scenario:
When he was first introduced to Smith by his daughter, he took an immediate dislike to him. There was something about him, something he sensed. He constantly urged his daughter to break off the relationship, but she was in love and listened only to her heart. The relationship continued while the father's anxiety steadily increased. He was obsessed by a fearful apprehension that something bad would happen. The last time he saw her was the night she had planned to meet Smith. He was certain that she was a victim of violence. Staying out all night, without calling, was something his daughter would never do. Talk to Smith he pleaded, over and over. Talk to Smith.

Two nights and no word. The detective assigned to the case interviewed Smith who acknowledged the affair but denied any wrongdoing. The absence of hard incriminating evidence obviated a right to arrest. No probable cause.

Eighteen months passed. No leads. A seemingly dead end. The father, never abandoning his accusatory accusations of Smith, had lost patience with the police. A broken man, suffering incomprehensible grief, he decided to take matters into his own hand. He enlisted the help of a "group", friends of his son. This group began following Smith, getting to know his patterns of behavior. One night, pursuant to plan, they  abducted Smith on a street near his home. Four of the group jumped him and began punching him. They threw him into a waiting car and drove to an empty cabin in the northern part of the state, belonging to a member of the group. During the drive, Smith was beaten further and his life was threatened several times. He was convinced he was on a one way trip.

At the cabin, the beatings and threats to kill continued. Finally, Smith broke and confessed.
On the night in question, he had met with the daughter at a predesignated remote street corner. She told him she was pregnant. He asked if he was the father. She slapped him. He struck her in the face. She fell, hit her head on the curb, and lay motionless. He thought she was dead. He carried her down a hill to some abandoned railroad tracks, wrapped her in a blanket he found there, dug a shallow grave with his shoes and buried her. He declined to specify the exact location of the body but was willing to lead the group to where it was.

He then seemed to relax. The bullying, and threats to kill, stopped. A calmer atmosphere prevailed. The group drove Smith to the area of the attack, during which time he repeated his admission, several times. Ultimately, the grave was located and the daughter's body unearthed. The police were notified. The father was notified. Oddly, Smith was released and he went home. The legal process began. Smith was indicted for second degree murder.

His attorney correctly analyzed that his only remedy was to have the confessions suppressed. The first, on the ground of coercion, the others on the doctrine of "fruits of the poisonous tree." He filed the appropriate motion. The trial judge found that the initial confession was, indeed, involuntary and therefore, suppressed. The subsequent statements, however, were deemed to have been made of Smith's free will. The atmosphere had changed. The coercion had vanished. They were ruled admissible. The trial was, therefore, a no- brainer. Guilty as charged. Imprisonment for life. Smith's parents wanted a different lawyer. They asked me to write the brief and argue the appeal.

I read all pertinent transcripts. There was no question as to Smith's guilt. He was a psychopath. He had murdered the daughter, buried her, and walked merrily on his way. Never looked back. Continued his life without missing a beat. Decapitate you and eat spaghetti off your shoulders. But the trial judge's rulings on the motion to suppress were so tortured as to cross the border into ludicrousness. The appeal would, in no way, suggest Smith's innocence, but would focus, instead, on a constitutional question of law. This was no legal loophole. A very attractive challenge, Smith's guilt, notwithstanding. I took the case.

I worked long and hard on the brief. One could barely navigate through my office, so great was the number of law books piled on the floor. The end product mirrored the magnitude of the effort. After oral argument, the high court, in a four to three split decision, affirmed the whacky trial court's legal finding but, in its general powers of superintendence, reduced the murder conviction to one of manslaughter. It was as if the court recognized the violation of due process but, faced with Smith's unequivocal guilt, was not about to permit his return to society. It ain't supposed to happen that way and it would, of course, never be acknowledged, but the justices were, after all, human beings subject to the frailties of conscience. The matter was remitted to the trial court for re-sentencing.

What a day that was. The judge was beet-red furious at what he perceived to be a travesty of justice. The tension in the courtroom, with both sets of parents present, was so tangible that you could grab it with your hand. The judge addressed Smith directly. "We shall never know whether your victim was dead or alive when you buried her. You shall always have blood on your hands."
The sentence was the max. Eighteen to twenty in state prison. Better than life, I suppose.

I packed up my briefcase and headed for the elevators. I pushed the down button and waited. And then I heard it. A voice in anguish. Anger and pain. It was the victim's father.

"Well, do you feel proud of yourself? What kind of a lawyer are you? You're going to your nice home while my daughter rots in the ground. Shame on you. Shame on you."

I turned to face him. A spent man ravaged by grief. I said nothing. What he had been, and was, enduring was against the natural order of things. A father buries a child. My God.
I said nothing. What could I say? The elevator door opened. I entered, half expecting the father to follow me, but he didn't. I could not dare to imagine myself in his place. Could not even bear the thought.

To this day, I have remembered his words. Always will. Yes, from a legal standpoint, I could claim the results as a victory. But no, my conscience would have none of that. I had successfully discharged my duty as a defense attorney, but it had been for a rotten cause. It's never a permanent glory road. And some bumps you never forget. This is one of them.

It ain't all peaches and cream.

1 comment:

  1. Damn, Judge. You gotta write a book. It'd be a best-seller.