March, 2022

The jury is out for about two hours.  It is a good sign.  How could they conceivably convict someone of first degree murder in such a short time.  The evidence is not complex.  She gave the statement.  Where is the evidence of her shared intent.  I take hope.

The court officers bring Yvonne back into the courtroom.  They take off her handcuffs and she sits on my right side closest to the jury box.  Judge McDermott comes out onto the bench.  The court officer announces that the jury is entering the courtroom.

“Will the jurors and the defendant please remain standing,” he says.  It is the custom.

“Have the jurors reached a verdict?” asks the clerk, and they nod affirmatively.

“Will the court officer please hand me the verdict slip.”

The court officer walks up to the foreperson and takes the verdict slip from her.  She hands the paper to the clerk.  The clerk hands it to the judge.  The judge takes out his reading glasses and reads the verdict to himself and makes sure it is signed and filled in properly.  He hands it back to the clerk.  The clerk hands it back to the foreperson.  It is such an elaborate dance routine.

“Ladies and gentleman of the jury,” reads the clerk, “on indictment number seven one six nine four three zero charging the defendant Yvonne Smith with murder in the first degree what says the jury, guilty or not guilty, madam forelady?”

“Guilty,” says the foreperson.

“Guilty of what,” asks the clerk.

“Guilty of murder in the first degree,” says the forelady.

Yvonne’s scream is never forgotten.

You’re always paranoid as a trial lawyer, at least you should be.  Indeed, if you’re not paranoid as a trial lawyer you’re not doing something right.  The entire legal system is based on adversarial and conflictual relationships, the myth being that by throwing two people with opposing views into an arena that the truth will emerge victorious.  I don’t think it works that way, but I also really don’t know a better way to resolve conflicts.  And neither do you.  So if you’re not paranoid, if you’re not worried someone is trying to best you as a lawyer, you dramatically increase your odds of being hurt.  I didn’t quite understand this when I started practicing law, but it is intensely and essentially true.  And I learned the lesson quickly.

One of the amazing things about these adversarial relationships in the law is that they do not really have to be antagonistic.  Oh, they may well be and often are, but it is not integral to the practice.  Think of boxers trying to beat one another, to hurt one another, to score the most points, or knock the other man senseless.  Yet when the fight is over the two fighters shake hands with one another, honored that their adversary had given all that he had to the battle, win or lose, so too football or soccer games.  Give it your all and shake hands at the end of the game.  Someday you may be back in the arena with that very same adversary now on your team.  What goes around comes around.

“So don’t yell at me,” I tell the lawyer on the other end of the phone line.  “And don’t be snooty either.  If you think that’s efficacious in front of a jury feel free to do so, but you and I are just talking to one another and there is no way you can bully or threaten me.  Just cite the law and the facts correctly and give me your perspective or spin as to the merits of your position without the dramatics.  We’re talking probabilities here.  Of course I understand the weakness in my case.  I’d be a complete idiot if I didn’t see the weaknesses of my position.  The absolutely best offense in the law is a defense.  I get it.  But don’t try to bully me into submission, because, unless you’re an absolute rookie, you know that no case is a guaranteed winner or a guaranteed loser and the best we can usually do for our clients is reach some understanding regarding the realistic odds and a more or less fair outcome.  So do me a favor, imagine I know the weaknesses of my case, and know them well, and help us along by acknowledging that you understand the strengths of my case and the weakness of yours.”  Hey, that’s my rap.

It is the coin of my realm and what separates wheat from chaff.  Any lawyer who says he has never lost a case, or can guarantee the outcome of a case, just hasn’t put in the time.  Or has a connection that is very dirty.  And I hate dirt.  That’s why I try so hard to be honest.  I know that sounds like a bit of an oxymoron coming from a lawyer, but it’s not.  I know the other lawyer will bend the truth to gain a victory, will stretch the rules, and will take advantage of loopholes and of my ignorance.  I do the same.  We call that a clean fight, a fight that follows established rules of conduct.  It is when the fight isn’t clean that the greatest danger arises.

All this talk about relationships between lawyers does not necessarily apply to the lawyer’s clients who may lie and cheat all the time in the name of self-protection and the lawyer may never know.  Indeed, if you don’t want to know, don’t ask.  With the police the rules of the game become even stranger.  Police are professional witnesses, like paid expert witnesses.  They have a position and a goal and will go to extremes to achieve it.  It is jokingly called “testilying” and it goes on all the time, because the police do not like to lose, because they are ridiculously self-righteous, and because they believe they know right from wrong and have an expert’s sense of what “justice” is, and it may not be what happens in a courtroom.

1980.  You can’t really imagine what it was like and how its face changed with the passage of years and seasons.  I took that job simultaneously with beginning law school nights, right after falling out of the tree and dislocating my right elbow, right after meeting Lynne, right after Steven’s father died.  But here I go again, back to World War II, back to the Bronx and Brooklyn, back to the old countries, back to the cave.  Never should have been in that tree.

Metropolitan State Hospital was huge, immense, occupied hundreds of acres of incredibly beautiful pastures and woodlands in the suburbs just outside of Boston.  There was a history to the place and old photographs and archives to document it.  It was one half do-good social services for the chronically mentally ill and one half Bedlam.  Whoever build the hospital had been inspired by an era of plenty and hope and kindness.  Of a largess that seems by today’s lights boundless.  The physicians were the royalty of this medieval estate.  Their flocks and charges were the abandoned mentally ill.  The staff was the peasantry who minded the flock.  Sometimes it was benign, even healing.  Sometimes it was blackjacks and straightjackets.  Some times it was all lobotomies, or electroshock, brains in formaldehyde in jars, and a potter’s field for the unnamed dead.

The Columbian woman with three kids in talking to me across my desk.  Her three kids are nice enough, but very distracted, impatient and bored.  The mother is here because her six year old has been modestly injured in an auto accident.  My job includes helping her to find treatment for the boy’s ongoing discomfort and pain.  Most medical providers I know of do not like to treat young children.  I call up a physical therapist who practices near where the woman and her children live.  I ask if he’ll treat a young child.

“How young?” he asks.

“Seven going on eight,” I answer.

“But she’s only six,” the woman whispers across the desk.

I put my hand over the mouthpiece.  “Please,” I whisper.

“But I’m a Christian,” she says.

“Mommy, all lawyers are liars,” her six year old eight year old says.

I look at him, playfully surprised.  “How do you know that,” I ask him.

“I saw it on television.”

“And you believe everything you see on television?”

“Yeah,” he says.

Her calls from jail pain me, baffle me.  One day she was nice and appreciative and sweet.  “I appreciate how you are trying to help me,” she’d say.  And the next day her calls were cold and suspicious of me.  I could feel it in her voice from the first hello.  She didn’t trust me.  Thought I was ripping her off.  Couldn’t or wouldn’t understand why things were taking as long as they were taking.  “I shouldn’t even be talking to you,” she’d say, “I should just report you to the Board of Bar Overseers.”  And, of course, I would get angry and hurt, without critical distance.  I should have been saying, “I understand why you feel that way.  I’ve tried to explain it to you before, and I will try to explain it to you again if you’d like.  The law is not fair.  And it’s hard to hear that.  I know how you feel.  And you are not wrong to be feeling what you feel.  But there is nothing we can do about it at this time.  We have done everything we can.  Now we just have to wait.  There is nothing further that can be done at this instant.  Not by anyone.  Not F. Lee Bailey, or Johnny Cochran.  We’re held here.”  Not like I haven’t said this before.  Instead I say, “Look, if you don’t trust me find another lawyer.  I am doing everything I possibly can for you.  You’re the one going behind my back; talking to people you shouldn’t be talking to, making matters more complicated.  I have nothing more to say to you.  Call if you can be nice or leave me alone.”  Did we say fifty nine year old lawyer here or did we say nine-year-old boy?

Samuel has been working for me for three years now.  I’d met him when he was an aide at Metropolitan State Hospital in Waltham, Massachusetts in the fall of 1980.  There were about a dozen aides who worked on the wards as trustees.  All were men serving life without parole sentences for first-degree murder.  All were let out of prison for six hours each weekday on an unpaid work release programs.Samuel had been born Black and poor in Virginia, one of seven children.  It really is no excuse.  After high school he’d joined the U.S. Coast Guard, which seemed like a good idea at the time, but he was a bit of a misfit, smarter than the others, and not just a little lost.  It was while in the Coast Guard that he began hanging out in Boston: women, a little smoke, nothing to do, and nowhere to go.  Adrift.  He and his best friend, Digger, decided to stick up the bar at the Holiday Inn on Massachusetts Ave. outside Central Square in Cambridge one November after midnight.  It was ill conceived and more impulsive than well reasoned.  They waited until the bar was empty.  They nursed their beers.  The bar tender served them a last round.  Digger pulled out a pistol.  Sam claims he didn’t know Digger was even carrying.  The bar tender drew a gun.  They each fired and the bartender was dead.  He had a wife and two young children.  Sam was shot in the exchange of fire and ran bleeding from the bar.  They’d taken all of two hundred dollars.  The FBI knew who he was immediately by his fingerprints on the beer bottles.  He became a fugitive and was successfully a fugitive for years.  Traveled in fear but without incident.  When they finally caught him the Middlesex County prosecutors offered to give him a second-degree murder sentence if he were to plead guilty and give them the name of his accomplice and best friend.  Fifteen years to life seemed as long as life then.  The disloyalty was too unbearable.  He took the case to trial and lost, as he knew he must.  There simply was no alternative.  And in the end he found himself in state’s prison for the remainder of his natural life without the possibility of parole.

Yvonne tells me the following story.  It is the story she told the police.  Perhaps she didn’t remember my telling her not to talk to anyone.

The police found her at her girlfriend’s apartment.  They took her downtown to the lockup on “suspicion of murder.”  They read her the Miranda warnings.  They offered her a lawyer.  They told her things would go better for her if she told them the truth.  They told her they knew she didn’t shoot Vernald.  Then they turned on the tape recorder.  They read her the Miranda warnings again.  They told her she could have a lawyer, that they would stop asking her questions any time she wished to.  They asked if she knew she was being recorded and if she was giving her permission for them to record her testimony voluntarily, and freely, and without threat or coercion or promise.  And she nodded her head yes.  And they said, “You have to answer audibly, Yvonne, because the tape recorder does not pick up your nods.  Is you answer to my last question ‘yes’?” And she answered, “Yes.”  The trap doors closed.

The police asked her to tell them if she knew what had happened to Vernald.  And she told them.  Gave them what they wanted, her tape recorded statement.  Sealed her fate.

She had been at the apartment with Vernald and he was beating her.  Not viciously enough to draw blood, or to send her to the hospital as he had in the past, just smacking her around, slapping her in the face, punching her in the arms, squeezing her breasts painfully.  He kicked her in the ass.  He hit her across the mouth with his backhand.

She had been up all night taking tricks downtown.  Gave a guy a blowjob in his car.  Went down for a guy in another car.  Let some funny looking dude from the suburbs unbutton her blouse, unhook her brassiere, rub her breasts, lay his head on her breasts.  She jerked him off.  He was afraid of disease he said.  She had a beer or two.  A snort of cocaine.  Nothing much.  Just trying to pass the time.  She worked alone.  Came home at about five.  Caught a little sleep until Vernald woke up and wanted company and just started messing with her.  Was in one of his unfathomable rages.  Told her “get outta bed, bitch,” and when she didn’t pulled her out naked.  She wrapped the sheet around her.  Held it to her with her arms tucked inside.  Vernald hit her.  Hit her again.  Stormed around the apartment.  Threw an empty beer can at her.  Called her “cunt.”  Called her, “whore.”  Said she was a no good black bitch.  Said she was holding money back on him.  Opened the window and took all her clothing that had been laying on the side of the bed and threw it into the street.

She was pissed.  Angry.  Pulled on a pair of Vernald’s jeans, his floppy old gray sweatshirt and her high heels and was out the door.  “Fuck you, Vernald, you bastard,” she said.

When she’d gotten out onto the to street she’d run into her brother, Oren.

“What the fuck happened to you, Yvonne,” he’d asked her.  She told him.

“I’m gonna get my piece and scare the shit out of that motherfucker,” Oren said.

Yvonne and Oren go down the street to where Oren’s gun is hidden under a dumpster. They walk quickly back to Vernald’s apartment. Yvonne tells the cops, she knocked and said, “It’s Yvonne, you bastard.” The door is opened. “What the fuck,” swears Vernald when he sees Oren. “Whoa, whoa, whoa,” he says when he sees the handgun. He and Oren speak fast. They yell. Their words are filled with anger and self righteous rage. Three tiny spent brass bullet casings are later recovered. The rest is history.

I enter the Suffolk County Courthouse.  Court officers looking at women are lazily scanning the metal detector.  This is definitely not federal court.  The old courthouse is an absolutely amazing architectural structure and every time I walk into it I feel as sense of awe.  I know it’s corny, but I do.  The courtyard has the first fourteen amendments to the Constitution cemented into it as a walkway leading to the stairs leading to the entrance to the courthouse.  Big bronze Roman numerals are embedded in the concrete.  It is like the tablets with the Ten Commandments on them. Sometimes I walk around them out of respect for the law, not wanting to trample the high and revered principles they espouse.  Other times I walk right across them.  Intentionally.  Sometimes I feel I am trampling on the law because it is so irrational and unjust.  At other times I feel the message and intent of the law being seared into the soles of my feet.  I am inhaling the law into my body.  From the roots to the brains, traversing my body like blood.

Paul Digiaccomo is one of the nicer court officers.  Can’t be more than five foot three inches tall.  Waddles when he walks.  Easily, or not so easily, weighs more than three hundred pounds.  Once I watched as he dieted for months down to a very reasonable one eighty.  It was amazing to see him shrinking before my eyes every day I came to court. He was on a liquid diet.  I remember him being so proud of himself.  And then in no time at all, literally no time, a month maybe, he was back up to three twenty.  Don’t ask me how it happened.  Too much pasta I suspect.  But Paulie’s smile is still real.  Every day it is real.  He’s not one of these “good morning, counselor” guys.  It’s “Hi, Todd, how ya doin’?”  Every day.  To everyone.

“Who’s in the First Session, Paulie?”

“Burns,” he says and he groans.

“She’s a piece of work now, isn’t she,” Digiacomo says, “a lesbian, which I don’t care about one way or the other, but man is she also not a very pleasant person, a down right ignorant person, if you ask me, can’t make her mind up half the time, I swear I don’t know how she gets dressed in the morning, and besides that she’s ugly, but hey, that’s just one man’s opinion.”

“Thanks for the encouraging words,” I say.

I sit in the jury box with the comfortable seats waiting for our case to be called.  Time passes.  Lots of time.  I schmooze with other attorneys who come in and out of the session on status conferences.  I read back copies of appellate court decisions.  I marvel at the stupendous waste of time, at the arcane process for the processing of criminal defendants through the system.  The wheels grind slowly and frankly only partially fine.

Yvonne comes up into the dock. I go to stand next to her.  Our case is called.  The prosecutor says the police responded to a shooting and found Vernald Jackson, aged twenty-two, sometimes pimp and full time punk dead in Yvonne’s apartment.  There are three bullet holes in poor Vernald’s back.  His sneakers are untied.  The homicide detectives at the scene think the loss of life is no big deal.  It is finding the preps, completing the puzzle, filling in the colors, that turns them on.  Find the bad guy.  Get more scum off the street.  Just doing their job.  All of this takes two minutes.  Yvonne pleads not guilty.  It is a capital case.  The defendant has a history of defaults.  Bail reduction is denied.  A pre trial conference date is set. The next case is called.

I find out Yvonne is held on one hundred thousand dollars bail.  It might as well have been one hundred million.  She might as well have been held without bail.  I ultimately have the amount of bail imposed reviewed at every level of the system, magistrate, trial judge, appellate judge.  One hundred K it is; murder not being treated lightly by the courts in any season.

I visit the county jail early on Tuesday, the new jail, the Holiday Inn of jails.  Not like the old jail, the catacombs of jails.  Call it what you will, they both smell of piss and ammonia.

First I sign in as a lawyer at the front desk.  Then I lock all my belongings except a pen and some legal papers in a metal gym locker.  Then I am passed through the trap.  My hand is stamped, so even if I want to switch clothes with the convict and stay in his place he still can’t just switch from his orange county jail uniform to my gray striped lawyers uniform and walk out to freedom.  Need that infrared stamp thank you.

Now locked inside with only my pen I await the elevator.  There are video cameras and monitors mounted in the corners of every wall and hallway.  There are video cameras in the elevator.  On the sixth floor there are still more cameras and more ammonia.  At the end of the gleaming institutional hallway is a guard station where I present myself.  I am ushered into the attorney visiting room from one side of the hallway.  She is ushered in from the other side, the prisoners’ dormitory side.  The doors are locked.  There is a bell to ring if we want to be let out.

She looks sallow.  Tired.  Frightened.  Caged.  “Thanks for coming to see me,” she says.  “Its okay,” I reply, “its my job.”  The government it turns out has absolutely no evidence against Yvonne other than her confession.  Oh, and there’s a dead man.  And he was her pimp.  Yvonne’s confession is damning but open to diverse interpretation and analysis.  She was arrested by Detective Wormly, the famous Black, street smart, bearded Wormly.  The Wormly with the big gold cross hanging down his chest and no sympathy.  The long suffering, cynical, tired, but incorruptible Wormly who tracked her down and didn’t even ask for a sexual favor.

“I just want to be out of here so badly.  I want to see my daughter.  I want to go home.  I don’t sleep good here.  I hate it.” 

I feel her pain and imagine my own.  I remember the frightened little boy sent to camp against his will crying in terror and helpless humiliation, ” I want to go home.”

I am staring into her eyes.  She meets my gaze.  We both hesitate to look away.  I wonder how many levels of conversation and unexpressed thought we manage on automatic pilot at once.  There is our focus on the likely trial, on strategy and hope.  There is talk of her unfreedom with remembrances of pain present and pain past.  The longing to be somewhere other than where you are.  Slavery.  I imagine her past.  I imagine her physical and mentally pleasure and pain.  I remember my past.  I realize I am no longer looking in her eyes but staring at my hands.  I wonder if she is thinking about her past.  About me.  The realization that we are caged behind a series of real metal doors and secure locks comes to me again.  That I will at a time more or less within my control walk out the doors, out of the building, into the sweet free air, while she will remain behind, perhaps forever, trapped with the scent of ammonia.  I am aware she is a woman, a sexual being.  I wonder about her sexually.  About her sexual past.  In my mind I see her naked.  I see her breasts, her nipples, her bush of pubic hair.  I imagine her shaved.  These thoughts follow one another; commingle with one another.  Only seconds of silence pass.  I worry about disease, about AIDS, and cancer.  Wonder if she wonders about me.