Law Stories

I tell the jurors that the Government just hasn’t proven its case against Yvonne. And I believe it.
“Where is there any evidence, let alone proof beyond a reasonable doubt, what Ms. Smith’s mental state was on the evening Mr. Rauther was shot? Seriously. I’m asking this quite seriously. What proof is there of mental state? What inferences can be drawn? What evidence do you have of shared intent whatsoever?
This is not a complex case ladies and gentlemen. Even taking the evidence offered by the Government at its face value, since, in essence it is entirely and solely the confession of Ms. Smith and hence words out of her own mouth. And what does she say? She says, ‘I went with my brother. I was with him when he got a gun. I went back to the apartment with him. I was there when he shot Dwayne Rauther.’
Please ladies and gentlemen, no one here is condoning the fate that befell Mr. Rauther. It was wrong. But it was neither at Ms. Smith’s hand nor by her will. She was present and that is all the Government has shown. And being present at the scene of a crime is no crime. The judge will tell you that in his instructions. The Government must prove beyond a reasonable doubt that Ms. Smith shared Mr. Rauther’s intent. And there is absolutely no evidence of that either.

I really like my partner, Eddie Vicarro. It’s like we were made for each other. I like that feeling, that two people who have found each other are people who were meant to have found one another. I’ve felt that way about Marianne, forever I think. Eddie and I see each other off the job too. Some cops say that it’s not a good idea to mix business and pleasure, but that makes no sense to me. We have a lot to talk about, we share certain interests, and we see a slices of the world in ways almost no one other than a police office sees it. So who am I going to talk to? We have crazy schedules. We have the same days off. Give me a break. The one thing that upsets me about Eddie is that he likes to smoke pot. I’m not a humongous moralist, but I don’t do illegal drugs, and I really don’t think police officers ought to break the law. I guess I’m naïve, because there is no shortage of policemen who smoke, which is so ludicrous, but it’s just the way it is. And I believe society is ambivalent about marijuana use anyhow, very different than it is about cocaine, or heroin, or driving drunk. I mean, if you’re a cop and you get busted driving drunk, you’re screwed. And if you’re as cop and you’re caught stealing it’s the same as if you’re John Q. Citizen. Well, to be completely honest, maybe that’s not always true, ‘cause obviously if a cop busts anyone he has a lot of discretion about how far he wants to take it. You know, the first call after a confrontation between an officer and a citizen – whether that citizen is another cop, a priest, or a wise assed punk – that first call belongs to the officer and he can bust the person or he can give out a warning and walk away.

Eddie is also much more of a street guy than I am. He grew up in Charlestown. But he can’t hang out with his friends from Charlestown, because he can’t be himself in front of them, he has to protect himself. And they can’t be themselves in front of him, precisely for the same reason.

Eddie and I do things with our kids together. We catch a movie together. But we never go out with our wives together, that’s a bad combination. Marianne and Angie. No way.

We made the bust in a single-family ranch house on the edge of town. It was not very high tech bust, nor a very high drama bust, at least at the start. We’d gotten a warrant issued that afternoon based on what we told the court was reliable informant information. And, in fact, it was good information and the warrant was good for twenty-four hours. We went in at night, around 2:00 P.M., in plain clothes, with our guns drawn. The man and the woman were asleep in a double bed. We flipped on the bedroom light, “Police,” I yelled, “don’t move or you’re dead.” And they didn’t.

The guy said “what the fuck.”

The girl said, “Oh my god.”

I said, “Not another word, not one fucking word, unless I ask you a question, got it.” I displayed my badge. I had my weapon pointed at their heads. They nodded yes.

Eddie went into the kitchen and gathered up a scale and about a pound of pot in a plastic bag in a shoebox. He came back into the bedroom with the items proudly displayed in each hand.

“Lookie, lookie,” he said. “This is more than enough marijuana to support distribution and we are, my friends, well within a thousand yards of a school zone, hence I would say that each of you is about to do a mandatory deuce and a half, no time off for good behavior, serving every day by day by miserable fucking day in state prison. Too bad, too bad, my darlings, no more sex, no more pot, no more Starbucks. Now don’t make uncle Eddie work too hard, where’s the weapons and where’s the cash?”

“There are no weapons, I swear to Christ,” said the guy. “The cash is in my pants, and a sock in the middle draw, and Angie’s purse. Cut us some slack guys, please.”

“Okay, rule one, if I find cash anywhere else I’m gonna hurt you.”

“No no, I’ve told you the truth, just cut us some slack.”

“You are each under arrest,” I said, “you have the right to remain silent, you have the right to a lawyer, if you cannot afford a lawyer a lawyer will be appointed to represent you. Anything you say can and will be used against you. Got it? Good. Speak at your own peril. Where’d you get the dope?”

“Some guy in a car. I don’t know who he is. It was set up for me by a guy I know.”

“Okay, but not very helpful, why not get dressed, both of you, and take a little ride with us downtown.”

“Come on, man, cut us a little slack.”

“And why might we do that? I mean what have you done for us lately. A bust’s a bust. We get brownie points in our jackets. We get promoted.”

“Hey, just take the shit but don’t take us. Pull the weed off the street, smoke a little yourselves if it’s your trip, jack us off for the money, but leave us alone. We’ll leave town. We’ll not say word one. ‘The bust was a bust’ you’ll say.”

He laughed at his own joke. He was cool and smooth and there was nothing about him I liked. The woman looked pathetic, smushed down hair, no make up, bathrobe, hung over, haggard.

Eddie gathered up the cash. He counted out over two thousand dollars. I was ready to roust them. “Get dressed and then I’m going to cuff you,” I said.

“Check this out,” the guy continued. “We go to trial and I say it was all her shit, that I was just knowingly present, which is not a crime the last time I looked. She says ‘it was all his shit,’ that she’d just gotten here to spend the night. The prosecutor argues joint venture. The defense attorney argues reasonable doubt. It’s a coin toss. Why bother?”

I hate this weasel. I really do, but Eddie is waving at me with his firearm, like get over here closer so we can talk.

“I say we let ‘em go. Who gives a fuck,” he says to me.

“I don’t get it partner. What’s the point? Why are we doing it?”

Eddie shakes the box of dope, the sock with the money. He winks.

“Boys and girls,” he says, “here’s the deal. First you give us the name rank and serial number of the guy who helped you set up this buy. Where we can find him. What he looks like. Everything you know about him, and not any ‘just some guy’ bullshit. Second, we hold this evidence in a very safe place, this evidence with both of your prints all over it, for a long time. Any time we want to make you, you’re ours. Any time. You understand that, right? So in light of that exposure to consequences too dire to risk, you do both in fact leave our lovely town. And I don’t mean casually or over time. I mean you pack your bags, you take what money you have out of the bank, you do not kiss your friends and relatives goodbye, you just leave. People will understand. They know who you are. Call from the road. Say what comes naturally. But do not set foot in this town again. Ever. ‘Cause if we see you here, out comes the evidence and away you go. Understood?”

They nod. The guy says, “I need a little cash, man.” The woman said, “I got kids. I need time.”

Eddie says to me, “Fuck them, Guiseppe, they don’t seem to comprehend the generosity of our offer or the gravity of their circumstances, they’re too fuckin’ stupid to save, cuff ‘em and let’s just take ‘em downtown.”

“Okay, okay,” says the guy. “Angie, please, we’ll set up in Florida. It’s warm there. We’ll send for the kids. Please, Angie, I can’t do time again. Please.”

She was crying. “You really are a stupid shit,” she says.

He gives us his seller’s name, rank and serial number. If it’s true and accurate or not no one knows. Yet.

“You will be out of this house before noon. You will be out of this town before sundown. If I see either of your sorry asses, ever, I will bust you no questions asked and take you down. Hard. No further questions asked, no further questions answered,” Eddie says. “Now we’re out of here. You best pray we never see you again.”

Eddie and I walk out of the door into the cool of night. We get into the car. Eddie drives. We leave the neighborhood and are out onto East Fifth moving in light to negligible traffic.

“What was that,” I yelled at him. “What did we just do and how are we going to undo it? I just don’t get it. I don’t get you. That’s not our M.O. It’s certainly not my M.O. You’ve compromised me. You’ve put me in a terrible place. You showed ridiculous judgment. I can’t understand how I went along with that stupid play. What were you thinking?” It reminded me of things that would happen to me as a kid, but not as an adult, not as a cop. I was Mr. Clean, Mr. Straight and Narrow. It’s how I kept things together. I didn’t do things that could get me in trouble or that broke the rules. I was nervous and pissed off.

Eddie sat there quietly with his eyes on the road, but you could tell he was excited and alert. After a minute he said, “I figured it all out, Roger. It’s simple and I want your help. We just made an extra thousand dollars each. I need the money. I’m throwing the dope in the river. The scumbags are out of town and not likely to return. The dope is not smoked or sold to little kids or grandmothers. You and I are a thousand dollars tax free richer and the world is a better place. No harm. No foul.”

“You are a stupid shit, amigo. You broke the law. You compromised me. It is a nightmare to me, a lose lose situation, a situation in which I have to pay for your fucking stupidity. I am appalled at you, Eddie. No shit. Appalled. No friend treats another friend like that. You are a bullshit guy, a coercive, impulsive shit. Just go fuck yourself, ‘cause you’ve already fucked me.” What really pisses me off is that there is no sweet or easy out and I know it. It is like the fox with his leg caught in the steel jawed trap. I’m gonna have to chew off my own foot to have any prayer of getting out alive. I sit in the car. The city passes by at night and in the mist.

(… explain why )

The fire occurs on the morning after Thanksgiving night. Monique has dropped her beloved four year old Andre off at his grandmother’s house to sleep for the evening with his other cousins and his father who lives there in a room in the basement where he keeps guns and fucks strangers. At midnight Andre’s father goes out with friends. A high tech portable space heater sits on top of a washing machine in the basement and ignites some fabric there. The fire is fed by the air that is drawn into the house through an opened garage door opened next to the illegal basement bedroom, and the home is promptly engulfed in flame and smoke. Six people jump from second floor windows because the smoke and heat coming up the stairwell is too intense. Two are injured. An infant is thrown from the second floor and survives without a scratch. Andre and his ten year old cousin, asleep in the living room on the first floor, are asphyxiated and die.

Monique learns of the fire when awaked by a phone call from friends and rushes to the scene

Her calls really pained me. One day she was thankful and sweet. “I appreciate how you are trying to help me, Todd,” she’d say. The very next day she was as cold and suspicious as she’d been sweet. I could hear it in her 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. “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 feel myself grow angry and hurt, without any critical distance. I should have said, “I understand why you feel that way. I’ll try to explain what’s happening again if you’d like. The law isn’t fair. It’s hard to hear that, I know. You’re not wrong to feel the way you feel. It’s hard being in lock up and not knowing what will happen next. But there is nothing we can do about it at this time. We’ve done everything we can. We just have to wait. There is nothing further that can be done, not at this time, not by anyone, not F. Lee Bailey, or Johnny Cochran. We’re held here awaiting forensic results and our next court date. Period.” I’ve said this before, more than once.

Instead of being my best self, however, exasperation takes over and I tell her, “Look, if you don’t trust me then 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.”

Are we dealing with a fifty nine year old lawyer here or a nine-year-old boy? Maybe both.

Her Grandfather

Her grandfather called to say he wanted to discuss his granddaughter’s case and I tried to get rid of him. He couldn’t help me and I didn’t have time.

“You know I can’t talk about a client’s case with anyone without my client’s permission,” I said.

“Well, I’ll just talk to you,” he replied.

“Okay, but can’t we do that over the phone,” I asked.

“No, this is something I want to do in person, Mr. Benjamin. Please, sir, this is my granddaughter whose life is in your hands. I want to see you.”

So, of course, I said yes, and here he was, one of these old guys who evoke warm feelings in me the minute I see them. It’s something in their deep mellifluous soft voices, the grip of their hands, the way they look you in the eye, the years and years of history, dignity, and determination etched into their faces. Does every older man remind me of my father? You know in that first moment of appraisal and recognition you are in the presence of beauty and grace borne of long years on the planet and it evokes your immediate respect. You sit back in your chair. You feel your breathing change. There is time to talk after all.

“Nice to meet you, Mr. Treadaway,” you say. “Please, have a seat. Make yourself comfortable. How can I be of help to you?”

“Well, Mr. Todd, I don’t know as you can be of any help to me, unless it’s my granddaughter you are aiming to help. You see, Yvonne is my youngest girl’s youngest child and I’ve always been partial to both her mother and herself. Her mother, that’s my Ernestine, I loved her dearly, but she died soon after Yvonne was born and Ms. Treadaway and myself we raised Yvonne from when she was little. Sweet child she was, I tell you that. Used to climb up onto my lap in that huge old chair we kept in the kitchen and just stoke my face and pet me like I was her big old doll. Poke around at my face. Pull it. Push my nose this way and that. Pull the curls of my nappy hair right out till they was long. Flip my ears back and forth. Look me right in the eye. Put her nose right next to my nose so I could smell that sweet milky dew on her breath. God, she was a wonderful child. You understand don’t you? You have children of your own, Mr. Benjamin?”

“Yes, I do understand Mr. Treadaway.”

“I’ve lived in these so called united states of America all my life, Mr. Benjamin. What can I tell you? As an adult I was free to leave and I clearly did not, notwithstanding the temptation and the pain of life here. I’m an American, Mr. Benjamin, and I am as proud of that fact as I am to be Black. I served in what white historians call World War II. And I served proudly. It’s funny how those who shape our language also shape people’s sense of reality. You’ve noticed that I take it. You understand what I mean? I mean sixty million African people, men, women, and children, were ripped from their homes and families and forced to live in the most horrific and degrading conditions for centuries, treated worse than dogs, an entire continent raped and enslaved for centuries, and it is called a “peculiar institution.” Lord god that hurts and makes me crazy. And then when fifty thousand American young men, mostly white boys all, get killed between 1941 and 1945 it is called ‘the Great War, the war to end all wars.’ I ask you.”

I notice his hair and his face as he talks. I notice his long fingers. His eyes never leave me and mine never leave his. It is a deep, comfortable moment, a reminder of rich earth and fertile humus.

“But how can I be of assistance to you today?” I ask.

“You represent my granddaughter, Mr. Benjamin. That’s right isn’t it? Her family loves her. I love her. I want to be sure you know that. I wanted to see the man who has my baby’s fate in his hands. I wanted to remind you that I care very much what happens to Yvonne, that I stand here watching you and praying for you. I want you to know I am beholden to no man, Mr. Benjamin, but that I stand deeply in your debt. We are all somebody’s children, Mr. Benjamin, and deep as you care about your children, that’s how deeply I love and care about Yvonne.”

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.