A Science Fiction Fanzine

Winter 2007

My life as a public defender goes on. Behold some recent stories from the Ark-La-Tex. As ever,
all names are my own creation, but the facts are not.

Hebrews 13:3

Guy Lillian III

1. Call Him Doofus We shall do just that... and call him Doofus. Haven't seen many guys like him up here, a parish located in the area of Louisiana they call the "Ark-La-Tex" because of its proximity to both Texas and Arkansas -- but they were abundant in other locales where I've practiced. (Remember, I'm that most despised and penurious of attorneys, a public defender.) In Jefferson Parish and New Orleans the courthouses and jails thronged with surly black guys in their early twenties, no jobs or futures, adorned with gold tooth-caps and ugly tattoos; they weren't violent criminals, , for the most part, but always in trouble for dope or petty burglaries or the like. What kept them in trouble, usually, was the idiocy of their mouths. At least, such was the case with my new client. His rap sheet showed nothing more serious than an old burglary ten years before. This time he was in jail for some unpaid traffic tickets. These being no big deal, Doofus would have skated home quickly -- were it not for his attitude. Doofus came to my attention -- and to the court's docket -- because of something that had happened while he was incarcerated for the tickets. He was being held out in the country at the parish's minimum security jail -- the "Pea [for Penal] Farm". It's considered minimum security because the 140 (or so) inmates are low escape risks, even though their alleged crimes (none are as yet convicted) range from missing court dates all the way up to multiple counts of child molestation. I was surprised to learn that the parish staffs the Pea Farm with no more than five or six guards at one time, but that only shows how safe they think it is. Anyway, on the day in question, one of the guards, whom I shall call Waldo, went back to the dorm where Doofus had his bunk. Waldo was rousting two other inmates who were bonding out. He told them they couldn't be released until they turned in all their parish-issued property -- and Doofus, nearby, remarked that the officer was a liar. One thing was obvious from the get-go: Doofus was a pushy big-mouth. One of the other guards told me that he'd come into the jail flapping his lip so much that the guard had -- to quote him -- beaten the fool out of him. Apparently there was plenty of fool left. Like I said before, I knew the type. Though he was 26, Doofus had the social maturity of an angry baby with a wet diaper. It was as if he wouldn't know himself unless he was in trouble. Thus his utterly pointless sass to Waldo, a guy older than he was, but far bigger, stronger, and tougher, and armed with Mace and a club and the authority to utilize them. Waldo's response was predictable. Tired of Doofus' -- quote -- "jibber-jabber," he threw him against the wall and gave him a taste of Mace. He then tried to hustle the blinded, squawking miscreant out of the dorm. Anyone who has been maced or tear-gassed, as I have, could tell you how Doofus was going to react. He flailed his arms wildly -- catching Waldo in the face and gifting him with a righteous shiner. As they careened out into the common area of the prison, they were joined in the melee by other guards, one of whom also caught a sock in the chin. Numbers, training, size and skill took their toll, however, so Doofus was quickly soothed into a state of restful unconsciousness -- and charged with two counts of battery on a police officer. With injury. Felonies. When Doofus came to trial -- you knew this story was leading to the courtroom -- the Assistant D.A. practically gloated. The defendant was a repulsive hoodlum, in jail, he had two guards who had been hurt and a nice, conservative Red State jury pool -- for this is a bedroom community for an Air Force Base, and thrives with retired military. How could he lose? That was my judgment, too, only I was far glummer about it. Though judges aren't supposed to punish defendants who choose trials over plea bargains, they almost always do -- giving the guys who have wasted their time an extra dosage of jail to consider their stubbornness. In Doofus' case, that time could be substantial. Also, though Doof had only a burglary on his record, and that many years before, it was still serious enough and recent enough to qualify him as a repeat offender -- which, under Louisiana Revised Statute 15:529.1, would earn him a much fatter sentence, with no time off for good behavior. It's called a "multiple bill," and it's deadly. Long before trial, I tried to impress these facts upon Doofus. I urged him to accept the state's plea offer, measly though it was: one felony, instead of two, sentence up the judge, and no multiple bill. The dark purple scars on Doofus' arms and neck seemed to flare. No way, he squawked -- he wasn' takin' no felony! But but the multiple bill -- No! Gih. What a maroon! I resigned myself to a Guilty as Charged verdict -- only my second since coming to this area. One nice thing about having an unwinnable case is that you just plow on. I remembered the credo of the Public Defender, holy writ I made up several years back: When your client is too dumb to face facts, stand up and tell the jokes. The hilarity began with voir dire -- jury selection. The A.D.A. began his interrogation of the first six potential jurors by mentioning where he was born and grew up -- just coincidentally a few miles from our courthouse. His object, of course, was to establish himself with the jury as One of Theirs -- trustworthy, reliable, and therefore, believable. Having lived in the area for just over a year, I obviously couldn't match his advantage. So I made light of my disadvantage. "Anyone born in Mojave, California? No? Gee ..." Another unwritten P.D. rule goes, When the law and the facts are against you, argue the Bill of Rights. So my voir dires always begin with the constitutional Ground Rules. If you don't know them, you should: a defendant is innocent till proven guilty, the burden of proof is on the prosecution, the standard of that proof is beyond a reasonable doubt, and the defendant has the right to remain silent ... the basics that define America as a legal concept. My motive for doing this is not only to emphasize how strongly the rules favor the defendant, but to dress up said idea in red, white & blue bunting. Proclaim loudly enough how such concepts are fundamental to America and the idea might get across: A Not Guilty verdict is patriotic! Juries usually listen politely to my tirade, nodding in faux agreement -- then forget all about it. Not this time. The very first jury panel, consisting of six men, had the usual retired aviators and GIs -- this area oozes with them -- but also a couple of guys with very interesting attributes. One was a civics teacher, who might, I figured, argue for the Ground Rules -- and my imbecilic client -- during deliberations. The other was a graduate student in Philosophy. I loved this guy. Without prompting, he started blathering about the Nature of Truth, citing Hegel and Nietzsche and Kierkegaard and suchlike, betraying the most delightful confusion about their work. Behold! A mind as fuzzy as a tennis ball! The perfect defense juror! To my astonishment, these guys were seated as jurors. The D.A. didn't even question them. Why, I'll never know. My guess was that he simply wasn't paying attention -- that he regarded the case as just too easy. You could read his smugness in his attitude. He couldn't imagine losing. I couldn't imagine winning, but I kept at it. Considering that Doofus was charged with Battery on a Police Officer, it was no surprise that I eliminated the one cop who was called to the panel -- but I used our conversation to my advantage. A 15-year veteran, this fella had intelligence, was honest, was horrified when I mentioned the two New Orleans cops on Death Row, and professed absolute fidelity to the Ground Rules. A man of character and a good policeman. When he stepped down, safely off the jury, I made a point of shaking his hand. He embodied the point I wanted to make. There are good cops and bad, worthy cases and unworthy. Wasn't the real question not whether the defendant had slugged a cop (or prison guard), but whether he had been at fault? We got our jury. That was it for the first day. The next day we tried the case. Better I should say, the next morning we tried the case, because testimony didn't go much past 11:30. The state brought to the stand Waldo, the second guard who had been punched in the melee, and a third man who had taken Doofus away. It went quickly. Waldo was a short, stocky guy, a no-nonsense type, who related the story you see above. In cross-examining him, I was polite; juries, especially in Red State America, respect cops and don't like to hear them harassed. Nevertheless, I tried to be firm in making the point that in their fight, Doofus had not struck the first blow. Waldo had, with his Mace. I also underscored, again with as much subtlety as I could manage, the distinction between a street officer -- like the potential juror -- and a guy who'd spent his entire career as a guard in the jail. When my turn came to put on our case, I crossed my fingers and put Doofus on the stand. Usually this is suicidal. Clients are often inarticulate and dumb as dirt; the District Attorney can confuse and rile up such defendants and ruin a perfectly winnable case. But to my astonishment, Doofus kept his temper. The D.A. barely questioned him. Why bother? He couldn't lose! Out went the jury at 11:45AM. The trial had lasted just over two hours. Three hours later, back came the jury with a verdict. Count one -- simple battery. Count two -- not guilty. Doofus just sat there, amazed. Instead of two felony convictions and decades in the walls, he'd gotten a misdemeanor carrying a sentence that would free him, that very day. His whole view of himself was as someone in constant trouble. Good news baffled him. I was riding down the elevator with the (very chastened) D.A. when they took Doofus out. Already he was fighting with his guards. The idiot couldn't even get out of the courthouse without making trouble. To me, he offered nary a word. But I said something to him. I said, "You're welcome!"   A couple of weeks later I was seeing some clients in the Penal Farm when the warden asked me to talk about the case. He was bewildered by the verdict and felt that his department had been embarrassed. How, he asked, did I win? I put the blame on the District Attorney. The kooky jury -- my Philosophy major was foreman! -- was part of the story, but the major reason we won was that the D.A. sleptwalked through the case. He was so certain of victory that he forgot to fight. He let me frame the question for the jury, so instead of asking themselves, Has it been proven that Doofus hit Waldo?, the jurors asked, Who started the fight? In short, the State gave me control of the trial. Never let your opponent frame the question for the jury. Never. The warden nodded in understanding. As a gesture of reconciliation, he gave me lunch -- the same meal as the prisoners got. Two slices of Wonderbread, a smear of mayo and two slabs of turkey baloney for a sandwich, with black-eyed peas, mashed spuds with gravy, and cherry jello. Not bad! Stop complaining, Doofus.

2. Entrapped in Ice Doofus had an excuse. He was a moron. Billy, my next trial, had the opposite problem. He was too smart for his own good. One time a girl came into my office. Beautiful creature. Looked like one of the models on Deal or No Deal. Until she smiled. Then it looked like someone had been at her teeth with an ice pick. I don't know how many of my readers will be familiar with crystal meth or ice. At my old stand in St. John Parish, I handled a slew of cases involving theft of anhydrous ammonia, the only exotic element in its manufacture. Given that gas, some matches and a few packs of cold pills, and you can throw it together in your kitchen. Such labs explode with regularity, but that's not the real problem with meth. The real problem is that it feels real good, is addictive as hell, and literally rots your teeth. And brain. And soul. So methamphetamine is illegal, sharing the same penalties for possession and distribution as its vile cousin, cocaine. Possession, 0-5 in the can. Manufacture/distribution/possession with intent to distribute, 2-30, plus a fine of up to fifty thousand dollars. They're serious about this stuff. Worse, Billy -- charged with two counts of meth distribution -- had two prior convictions. If he was found guilty, and the District Attorney multiple-billed him as a repeat offender, he could get between 20 and 60 years, sans good time, or parole. So it was with a bit of trepidation for his future that I sat down across from him at our nice new Maximum Security Jail to discuss his case. Meth users tend to appear like they've spent the past year being flayed with chains, but Billy didn't look that bad. He was a youngish, late 20's, black guy, a bit chubby, with a healthy beard. Most importantly, across the table surface in front of him, he'd spread papers -- notes, and legal cases 'roxed from law books. Oh God, I thought, not only a doper, but a jailhouse lawyer. The two most irritating types of client, rolled into one. I cracked open Billy's file and read him the police report on the first case that would be tried. An old story. An undercover narc named Crow, through a Confidential Informant, had asked Billy to sell him some meth. Billy had met the CI and Crow on the street, money and meth had exchanged hands, and so here sat Billy. But despite the straightforward case, Billy did not seem worried. He waved his hand over the stacks of paper arrayed before him and intoned a term he must have thought magical: entrapment. The entrapment defense is based on a noble standard in western law, based in fundamental fairness: If a crime is committed solely due to the state, it is not punishable. The key word in that sentence is, of course, solely. It isn't entrapment to provide a predisposed criminal with the opportunity to commit a crime. To decide whether or not a defendant has that predisposition, the trier of fact should look at his previous actions, the amount and intensity of state pressure brought to bear upon him, his reaction to the enticement, and so on. Cue hypothet. Say a policewoman posing as a prostitute braces a dude on the street. Hi, sailor, new in town? He tells her to get lost ... even when she asks him again, and again. But he's a lonely chap and eventually his lizard brain wrestles his better judgment into submission. He finally says, Okay, how much? Click! She arrests him for solicitation. Such a defendant should go free. The policewoman caused the crime -- the client has been entrapped. But say our hero has been arrested before trolling for 'ho's. Or say he has a pack of Trojans in his pocket and a key to a local no-tell motel. What if this little drama took place on the local "stroll," and our hero has been circling the block eying the undercover *snrk* cop? No entrapment there -- the defendant has a predisposition to commit the crime. Billy claimed he had been approached several times by the CI, an alleged friend of his. Though addicted to meth, he hadn't been selling it, and had resisted the CI's repeated attempts to get him to sell "his boss," in actuality Crow, some ice. In fact, according to Billy, the CI had given him the methamphetamine in question, in exchange for a ride. His so-called friend had called him and asked, "Got any of that left? Sell some to my boss ... and he'll give you a job." All well and good. But the fact remained that Billy had sold Crow some crystal meth. If the police report was to be believed, he'd told him that he was reluctant to sell to someone he didn't know -- which didn't sound like a guy who didn't sling dope on a regular basis. In Billy we either had another human disaster wasted and ruined by drugs -- or we had a smart sociopath, a genuine criminal. Which? I told Billy that this question would be at the heart of the trial, a question to be answered by the only voices that mattered: the jury's. I also told him not to expect miracles. We get fair jurors in the Ark-La-Tex, I told him -- ex-military types whose training for independent thought often overcame their respect for authority. This wasn't Jefferson Parish, where I used to toil -- and where a black defendant was as good as dead the second he walked into a courtroom. But neither was it Orleans Parish, pre-Katrina, where you could count on the jury's hatred for police to win you undeserved acquittals. The people we'd seat would think for themselves, but they were wary of excuses. I told Billy that the whole case would turn on him -- he would have to convince the jury that he had been entrapped. The D.A. had offered to drop the other sales charge on him and forswear multiple billing if he pleaded guilty -- I advised Billy to think about it. He said no. He had his stacks of paper and he had his defense and that was that. Though I doubted we could win, we were committed to trial. Like I say, when the defendant insists, all you can do is stand up and tell the jokes. It turned out that Billy's stacks of paper were a huge help. Billy had found and reprinted a slew of entrapment cases that seemed directly on point. Sherman v. United States seemed particularly persuasive. 356 U.S. 369; you can look it up. I used a lot of his stuff while prepping my questions for voir dire -- jury selection -- and opening statement. I framed a request for a jury instruction based on his work. His research was truly impressive -- and truly tragic. This guy had brains -- insight -- nascent ability. What the hell was he doing in jail? Why the hell was he up to his tailbone in methamphetamine? Dope has been a mystery to me my entire adult life. My motion requested that the judge's instructions to the jury include language on entrapment. It caught Monty, the young Assistant D.A. in my division, by surprise. He'd never heard of the defense. After an evening with Gail Schlosser's Louisiana Criminal Practice, a bible for practitioners (Gail is a friend of mine from Jefferson Parish), he asked the judge to add a note saying that pleading entrapment shifted some of the burden of proof in the case -- that though the prosecution still had to establish the defendant's guilt beyond a reasonable doubt, the defense had to prove entrapment by a lesser standard, preponderance of the evidence. I thought that rather self-evident, but the judge declined Monty's request. We got underway. I'd enjoyed a 4-1 trial record over Monty since starting here. Matter of experience and concentration: I've been a lawyer a decade longer, and age, too, may play a part: he's as much younger than I am as my father was older than me, 23 years. Up until Billy's trial, I felt I could command the courtroom with greater authority than he could, and during voir dire, felt the same. Although he looked great -- new suit, good haircut, sharp new specs -- his questioning of potential jurors followed a rote formula that bored everyone to stupefaction. Mine, if I do say so, was superior -- the people seemed amenable to the possibility that a guy who peddled ice to an undercover might have been finagled into committing the crime. Of course, that's a long way from a Not Guilty. For that result, you need outrage -- at the cops, at the CI, at the root cause of the defendant's problem. I knew this even if Billy didn't, so when the time came for my opening statement, I tried to turn the jury's rage. Billy had been bamboozled by a creep who had sold out his friend to save himself from jail, and had sold drugs -- this once -- because he had been made an offer he could not refuse: a job, a ticket to normalcy, a ticket out of drug addiction. Frankly, I was sure a smart jury would smell desperation in our tactic, but at least the idea was out there. But it would go nowhere, and I soon knew it. When the narc testified he admitted that the unnamed CI had burned Billy to try to help himself with his own charges. But then he threw the wrench into the works that would, I knew, bring the defense zeppelin flaming to the ground. He quoted Billy's words at the time. "I don't like to sell to strangers." Boom. That sentence hit the entrapment defense like a grenade. With nothing to lose, I put Billy on the stand. He did fairly well; Monty couldn't shake him. But in closing the A.D.A. made a lot out of Billy's words during the sale, and maintained that job offer or not, he could have said no. Occam's razor applies in criminal cases: I knew the jury would take the path of least resistance. Therefore, in my closing, I felt free to let fly with some of my deepest personal anger about drug use. It is the bane of my generation, I said. All our promise, all our imagination, all the amazing and revolutionary things we could have accomplished, down the tubes thanks to the easy goof of dope. I was ignoring the fact that Billy, like Monty, came from much younger stock than I. So maybe my diatribe didn't have much relevance to Billy's case; but it felt good. It felt good, but it did no good. They convicted Billy in 35 minutes. Knew it. We'll toss the case to the appeals court, see if the entrapment issue swings better there. Is it confidence in the law or the stunning self-deception of the druggie that has Billy convinced that he's still going to win?

3. Titty Twister   One of my first cases in this parish involved the perverse Fitzgerald brothers, Ron and Bob, both accused of the incredibly repulsive crime of Aggravated Incest. A pair of working class guys in their thirties, theirs was one of the most hideous of cases, where adults are said to have used and abused children -- in this instance, a girl approaching adolescence and two younger boys. Agg Incest is any of a number of sexual crimes or "lewd touching" between biological, step-, or adoptive relatives where the victim is under 18. The touching has to be "done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both." It runs 5-20, so it is a serious gig. My office had been made responsible for only one of the defendants -- the younger brother, Bob. He was the uncle by marriage of the alleged vics. Because there was a conflict between defenses, the victims' stepfather, Ron, was somebody else's headache, and I was delighted. Bob's girlfriend, Trish Stevens, had once gone with Ron, and they were still close. Trish provided the evidence that speared Ron through the heart, a Social Services report detailing the abuse. She had sent it to Ron, and Ron, displaying the native intelligence which would land him in Angola for 45 years, had returned it. With notes. It was a sickening document, made more so by Ron's marginalia. While his stepdaughter claimed his abuse had begun when she was 6, he noted "I say 8" on the page. Next to a paragraph about ejaculating on the girl he added what he must have believed to be a mitigation: "accidently", and when it said he "tried to put his private parts in her" he scratched out "tried" and entered "asked." YIH -- no doubt about it, Ron was a member of the world's most repulsive special interests group, a genuine pedophile. I was delighted to weasel out of representing him by claiming a conflict between his defense and his brother's, and pass him on to a private lawyer. Bob, I thought, was probably innocent. The only reason Bob was even under arrest was because he surrendered -- voluntarily -- after Ron was arrested. He was so upset with what his creepy relative had done that he projected Ron's guilt onto himself -- onto actions that certainly did not qualify as any sort of hardcore sexual abuse. The kids said from Jump Street that he hadn't done anything to them. But Bob had the ill fortune to be interrogated by a cop who didn't care what the alleged victim said. Jan Earp is an aggressive and ambitious detective who has made a niche in child sex cases. Of course, such crimes are loathsome to the extreme, but like many cops who get involved in such horrors, Earp -- who has appeared on America's Most Wanted -- is a crusader, a genuine obsessive. I'd seen it a dozen times in a dozen cases: even if there was no evidence of sexual abuse, Earp would create it. So what did Bob do? On first glance, Bob's "confession" was an admission to nothing much. Like many another uncle in a close family, he had "wrassled" with the kids, on the floor. There was nothing sexual about it, Bob maintained. The only thing I found dubious about Bob's descriptions was a game he played with the kids -- "Titty Twister", tickling them by twisting their nipples through their shirts. It sounded a bit perverse to me, but I supposed any illegality involved would come down to the intent of the twister -- whether it was done "to arouse or to satisfy the sexual desires of either the child, the offender, or both." Maybe it was a class thing -- accepted among lot lizards like Bob and his family. Whatever, the kids certainly made nothing of it. To them, it was just "wrassling." Bob said so too. But of course, there was a problem -- a problem I noted whenever Bob was interviewed. He was passive. Said the Social Services report, he "was quiet spoken and let Ms. Stevens do most of the talking during the interview." It was obvious that Bob was malleable and could be bullied, lost and guilt-struck and willing to say anything if assured by an authority figure that it was right. Agent Earp caught on to that immediately. In his interrogation, Bob was downright weak. The circumstances of the questioning seemed designed to make Bob hang himself. For one thing, he was questioned off-mike for two hours before the official, recorded interrogation. Earp told Bob to keep his answers short, yes or no. Bob told me that Earp had worn him down, confused him with Ron, indeed had said, "If you tell me you're innocent one more time, you're going to jail!" Over and over again Earp elicited guilty statements from him with pushy, leading questions. Q: When you were doing, I know you were doing it for sexual gratification, correct, because you were sexually excited undoubtedly, otherwise you wouldn't have done it, is that correct? A.: Yeah. Notice how Earp put the questions -- getting Bob to agree to his own preconceptions rather than finding out what really happened. Notice how Earp was trying to get Bob to mimic the statutory language and convict himself of Aggravated Incest. Earp got Bob to say things that qualified. Touching beneath their clothing. Overt molestation. Bob later denied any such horrors happened -- and the kids denied them, too. I saw to it they denied them face to face with the district attorney.   Bob was being tarred with Ron's brush. The only way out of that quandary, I figured, was to sit the victims down and have them tell the District Attorney what happened, in my presence. I set up such a meeting in August, 2005. The girl -- who was very pretty and very close to being a young lady -- and the youngest boy continued to insist that their Uncle Bob had done nothing to them -- "titty twister" games or not. But the middle kid, an angry boy of about 11, said Bob had grabbed him by his privates while they were wrestling. That gibed with Bob's statement to Agent Earp, and that, therefore, was trouble. So, with the D.A.'s reluctant OK, I talked John into a plea. One count of Sexual Battery. In many ways it was an excellent choice: once released, he wouldn't have to send out postcards to his neighbors as a sexual deviant, nor register with the local constabulary every time he moved. The hairy charges would be dismissed. As he had no criminal record, as two of the alleged victims had exonerated him, we didn't expect bad news. It was a great -- and greatly unpleasant -- surprise when, some months later, Judge Bancroft slammed Bob with a sentence of ten years -- the max! I filed a motion to reconsider. When that was denied, I sent the case Up, to the Second Circuit Court of Appeal. My intent was to label the ten-year slam as excessive for a guy with no record, so when, in the course of time, the Second Circuit sent the case back to Bancroft, I thought sure that Bob would get less time. But that wasn't the reason behind the appellate decision. The decision simply said that Judge Bancroft hadn't given a sufficient rationale for leveling the max on Bob -- and ordered him to re-sentence him with reasons. And so it came to pass that, in January of '07, I came to Judge Bancroft's court to hear the new sentence -- and, incidentally, ask that Bob be allowed to withdraw his plea. He was convinced that the alleged sexual battery victim was willing to recant. Once we were in court, it quickly became clear that the case had embarrassed our judge. He denied Bob's request to drop his plea. Since the Second Circuit had spanked him for sentencing Bob to the max without providing enough reasons, this time, he gave plenty of reasons. They came right out of the book -- Bob was in a position of authority over his victim and knew about his brother's malfeasance (otherwise, how could he testify against him?). The kids let him off the hook only because they were kids and that's what kids do. (Never mind that they testified fully against their stepfather, Ron.) Bob deserved no leniency. Once more, the judge socked Bob with the maximum, ten years. Bob stormed out of the courtroom and back into the jail without a word. Once more, I objected, once more, I will appeal. So: was justice done? Was the judge's outrage justified or was he simply p.o.ed at the Second Circuit? I have no doubt that Bob did not really commit a sexual battery on the boy in question. But what about the Titty Twister business? Was it mere family teasing -- the equivalent of tickling a tummy or knuckling a noggin -- or was it covert molestation? If we think of it as a crime, is that fair to the young lady? She didn't think much of it; should we? What's our duty to that kid? Is it to second-guess her -- interpret things in a way she never would? Call her a victim when she does not think so? These questions are up to the appellate court, now. Me, I'm on to the next client. But we owe it to the girl, Trish, and ourselves to keep such questions in mind. And we owe it to Bob, too. Remember them that are in bonds, as bound with them. Hebrews 13:3.