Professional Responsibility

CONFESSIONS OF A CRIMINAL LAWYER

Seymour Wishman*

Seymour Wishman is now President of First Run Features, a New York film distribution company. Permission to reprint this excerpt from Confessions of a Criminal Lawyer on the course website was graciously granted by Mr. Wishman. Confessions of a Criminal Lawyer is currently available from Palisades Press, 153 Waverly Place, New York, New York 10014 [telephone: 212-243-0600; FAX: 212-989-7649]. It was first published in hardcover by Times Books in 1981; the paperback edition, by Penguin Books, appeared in 1982. The chapter was reprinted in 21 Legal Studies Forum 139 (1997)]

I have to ask myself, what is there to show for this half lifetime that has passed? I look into my book in which I keep a docket of the decisions of the full court which fall to me to write and find about a thousand cases. A thousand cases, many of them trifling or transitory matters, to represent nearly half a lifetime!

Alas, gentlemen, that is life. I often imagine Shakespeare summing himself up and thinking: "Yes, I have written five thousand lines of gold and a good deal of padding--I would have covered the milky way with words that outshone the stars!" We cannot live our dreams. We are lucky if we can give a sample of our best, and if in our hears we can feel that it has been nobly done.

--Justice Oliver Wendell Holmes at a dinner given in his honor

IT WAS PAST TEN on a sweaty summer night when I accompanied the sister of a client to the emergency ward of Newark City Hospital. I had successfully defended her brother against a mugging charge about a year before, and was scheduled to begin a new armed robbery trial for him. The date of the trial was now in doubt because of the wounds he had received in a "disturbance" at the jail. I was rushing to see how he was, and to prevent him from saying anything incriminating to a nurse, doctor, or worse, the police, about the fight he had just lost with a guard--the guard would probably claim my client had attacked him, regardless of what had actually happened.

My client's sister and I joined the parade of wounded and mutilated bodies staggering through the swinging doors. Across the lobby, a heavy but not unattractive woman in a nurses uniform suddenly shrieked, "Get that motherfucker out of here!" Two women rushed forward to restrain her.

"That's the lawyer, that's the motherfuckin' lawyer!" she shouted.

I looked around me. No one else resembled a lawyer. Still screaming, she dragged her two restrainers toward me. I was baffled. As the only white face in a crowd of forty, I felt a growing sense of anxiety.

"That's the son of a bitch that did it to me!" she screamed.

I didn't know what she was talking about.

"Kill him and that nigger Horton!"

Larry Horton . . . of course. Larry Horton was a client of mine. Six months before, I had represented him at his trial for sodomy and rape. At last I recognized the woman's face. She had testified as the "complaining" witness against Horton.

WISHMAN: Isn't it a fact that after you met the defendant at a bar, you asked him if he wanted to have a good time?

LEWIS: No! That's a lie!

WISHMAN: Isn't it true that you took him and his three friends back to your apartment and had that good time?

LEWIS: No!

WISHMAN: And, after you had that good time, didn't you ask for money?

LEWIS: No such way!

WISHMAN: Isn't it a fact that the only reason you made a complaint was because you were furious for not getting paid?

LEWIS: No! No! That's a lie!

WISHMAN: You claim to have been raped and sodomized. As a nurse, you surely have an idea of the effect of such an assault on a woman's body.

Are you aware, Mrs. Lewis, that the police doctor found no evidence of force or trauma?

LEWIS: I don't know what the doctors found. . . .

I tried not to acknowledge the screaming woman in white as I passed within several feet of her and the two women clutching her arms. Instead of looking at that angry face, I glanced around the room. Along the walls, on wooden benches and orange plastic chairs, twenty or more people sat staring at me; several people were laid out on stretchers with hanging bottles containing clear liquid dripping into their arms through long pink tubes. Nurses, doctors, and clerks were scattered around the room. Even the people on the stretchers were staring at me. Even the sister of my client, who was walking beside me, stared at me. I was frightened, but I tried not to show it.

* * * *

There was no sight of Mrs. Lewis when I left the hospital. While driving home that night, I tried to recall the details of the trial with "that woman." It was possible that the doctor who had found no evidence of force or trauma had been mistaken. The professionals who testified for the government were often incompetent. Some police doctors who had examined hundreds of alleged rape and sodomy victims over the years no longer performed their work with the same diligence or enthusiasm they might once have had. And, as was often true, many months had passed between the examination and the trial with Mrs. Lewis, leaving the doctor with only his notes to rely on, certainly not an independent memory of the examination, and in this case the notes were very sketchy. When I had asked him if there had been any evidence of force or trauma, we both knew he had neglected to mention in his report either the presence or absence of force. On the witness stand he had to either admit his negligent reporting or deny the existence of such evidence. I had made a point of holding his report in my hand, so when he said there had been no evidence of force, he knew he was avoiding my embarrassing next questions. But both of us knew that the truth of Mrs. Lewis's condition those many months earlier might have been very different.

Weighing on me more heavily than the possibility that I had helped a guilty man escape punishment was the undeniable fact that I had humiliated the victim--alleged victim--in my cross-examination of her. But, as all criminal lawyers know, to be effective in court I had to act forcefully, even brutally, at times. I had been trained in law school to regard the "cross" as an art form. In the course of my career I had frequently discredited witnesses. My defense of myself had always been that there was nothing personal in what I was doing. This woman was obviously unwilling to dismiss my behavior as merely an aspect of my professional responsibility; instead of an effective counsel, she saw me simply as a "motherfucker."

I had applied to law school with a deeply held belief that I could satisfy some high, even noble, expectations as a lawyer. Although I had never articulated what those expectations were, I knew I cared about the poor and the underdog; although I may have had only a hazy idea of what justice was, I did have an acute, albeit intuitive sense of injustice. I didn't talk out loud about such things, because I didn't want to sound self-righteous or naive, but the truth was that beyond vague, grandiose feelings, I had never really thought it through, even for myself. And those feelings of justice had never anticipated the anger of a humiliated witness.

During my first year out of law school, I clerked for a criminal trial judge, Charles S. Barrett, Jr., of the Superior Court of New Jersey, a gentleman of humor and intelligence and decency. Every day in the course of his trials Judge Barrett made specific decisions based on his sense of justice. Of course, he was guided by statutes and opinions of higher courts, but the details of a case often required interpretations that could be made only by relying on his personal convictions. I greatly admired the judge for those personal convictions; I sensed he had struggled with the more profound human questions and answered them with a consistency that seemed well-considered intellectually and satisfying emotionally. There was nothing I wanted more than one day to be a man of such integrity and conviction.

I tried to study my judge as if he were a finely balanced scale. I knew he believed our penal system was inhumanely harsh, yet he sentenced defendants to long periods of incarceration. He held no higher value than the sanctity of human life; yet I watched him impose a death sentence without any apparent emotional conflict. And because a police officer had failed to knock on a door, I saw the judge, without hesitation, dismiss the case against a brutal rapist. I learned that Judge Barrett believed in our system of justice, in its principles and its process, to such a degree that his commitment to that system required and allowed him to put aside any other personal feelings about a particular case.

In my eagerness to understand the source of the judge's commitment, I gladly accepted his invitation to attend a Jesuit retreat with him and his two sons. During prayer services I watched him speak to his God with deep devotion, and I learned that he attended church every morning. Up to that point, which was near the end of my year of clerking, I had no idea that he was religious. When I asked him if he felt his religious commitment to love and forgiveness and humility created any personal conflict with his work as a judge, he said he had no difficulty reconciling his religious and professional lives. He believed he was doing important work in trying to balance society's interest in deterring criminal behavior while at the same time protecting the rights of people accused of crime.

Now as I thought back about my judge, almost twenty years later, fresh from my disquieting encounter with Mrs. Lewis, I admired more than ever, and envied, his ability to prevent difficult and, at times, harsh decisions from disturbing other parts of his life. Although I firmly believed that society required criminal laws to protect itself, I could not put aside my belief that the acts of a criminal, horrendous as they often were, were usually caused by factors or events beyond the control of the "criminal." And the thought of an inhumane penal system raised in my mind, and more so in my heart, the gravest doubts about the whole system of justice. Lastly, if it had been religious belief that gave my judge the strength to do the harsh things his job required, I, unfortunately, didn't have such belief.

I tried to imagine what Judge Barrett would have said about Mrs. Lewis if she had been screaming at him. He might have discussed her "in the context of the larger issues involved and the obligations of vigorous advocacy in our adversary system." Even if he had said something like that, I think he would have been personally distressed, but because of his inner convictions, he would probably have been a good deal less distressed than I was.

It was because of this dispassionate perception of the adversary system as an inherently worthwhile, if at times flawed, institution that my judge, toward the end of my clerkship, encouraged me to become a prosecutor. I had observed many criminal trials in his courtroom, but actually preparing and presenting the government's case--working through its strengths and weaknesses firsthand--was the best way to master the criminal process. Familiarity with court procedure and the rules of evidence was a far cry from performing in court: a good trial lawyer has to act almost by reflex at times. When an adversary is asking something improper or when a witness is starting to say something he should not be allowed to say, a lawyer may have only a fraction of a second to make his objection before the jury bears the damaging testimony. The rules and the procedure have to become so much a part of the lawyer that he has to be on his feet objecting, cutting the speaker off, sometimes even before formulating the precise basis for the objection.

I knew I wanted to be a defense lawyer, but I also knew that the best way to become a good one was to spend a few years prosecuting first. Some of my friends who shared my feelings about the prison system and the ultimate responsibility for the causes of crime said I was on the verge of joining the enemy and violating some larger commitment to helping the poor and downtrodden. But part of me shared, or wanted to share, my judge's conviction that justice was served by a lawyer's skills, ethically employed, regardless of which side he represented. The argument that a prosecutor could prevent unjust indictments and ensure that plea bargains or trials were fairly conducted was a compelling one. I finally decided to take the job, largely because I knew it would be for only a short time, a few years at most before I could move on to the defense work I had always intended to do. My judge proudly administered my oath of office as I held a Bible in his familiar chambers.

So I began trying one case after another, and I learned my trade and loved what I learned. As far as the defendants I prosecuted were concerned, they were all guilty, I was sure, except perhaps one.

The victim, a middle-aged woman, had been viciously and gratuitously sprayed in the face with Mace. She testified that on a particular day a man she had never seen before had come into her employment agency. "I'll never forget that face," she said, pointing at the defendant, her voice breaking into sobs. "After I gave him the money, after I had done what he said, after it was over, he sprayed me with Mace. He didn't have to do that. He could have blinded me. It burnt terribly."

The public defender maintained that the defendant had filled out employment forms earlier that day in the victim's office, and she must have confused the defendant with some other man who had robbed her. The lawyer produced specimens of the defendant's handwriting made before the crime. During the summation he asked the jury to see the similarity between the defendant's handwriting specimens and the handwriting on the employment agency forms. Although the handwriting appeared to be very similar, the public defender did not produce an expert to assert with authority that it was by the same author. The state would have paid the expenses for the public defender to use such an expert. There were only two ways I could interpret the absence of a handwriting expert: either the defenses counsel had been negligent or he knew an expert's testimony would have confirmed the guilt of his client.

During my summation the best explanation I was able to give was that the defendant had a very simple signature, and that some other man obviously working with the defendant had filled out the forms. "That other man must have made his handwriting look like the defendant's so that if the defendant ever got caught, he could come into court and try to confuse a jury like you with some hocus-pocus." I was troubled by this approach but could think of no other . . . except that the victim was mistaken.

In my summation I didn't dwell on the handwriting, but focused on the viciousness of a crime that had nearly blinded the victim. I stood before each juror, one at a time, as I walked down the jury box, placing my fist inches away from each one's face, shrieking, "Imagine the burning spray of Mace!"

To my surprise, the jury convicted. I was elated--at first.

But after the initial excitement of winning, I looked at what I had done. I had been so caught up in the contest, the adversarial battle of the trial, that it hadn't occurred to me that I might have been responsible for the conviction of an innocent man. I believed, even if the jury hadn't, that there were other explanations for the similarity in handwriting than the one I had argued to them. On reflection, after the verdict, it seemed to me that the defendant might have been telling the truth.

I took the specimens the defendant had written before the crime, along with the forms he claimed to have written in front of the victim, and sent them all to the crime lab of the state police for expert analysis. Several weeks later I received a report stating that the specimens and the forms had been written by the same person.

With my hands sweating as they clutched the papers, I ran down the courthouse corridor to the judge who had presided over the trial. I had expected him to be as upset as I was. The judge said I had had no business meddling with the conviction; our adversary system had separate roles: a prosecutor should prosecute and a defense lawyer should defend, and if I had had doubts about the handwriting, they should have been resolved before the conviction. I frantically argued that the defense counsel had sprung the handwriting issue at the trial, and since he hadn't gotten an expert, it hadn't occurred to me to get one. Finally the judge agreed to reopen the case, but on the condition that the defendant first pass a lie detector test.

I informed the public defender of what I had done and what the judge had decided. The public defender agreed to arrange the test. I was relieved by the thought that I had done all I could to undo a possible miscarriage of justice for which I had, in part, been responsible. It was now up to the defendant and his lawyer to act.

Six months passed during which I assumed the case had been attended to by the public defender. Then, inadvertently, I learned that the case was going to be heard by an appellate court. I knew that an appeal couldn't have gotten that far unless the effort for a new trial had failed, or unless no effort had been made. I contacted the defendant's lawyer. He told me he had left his office for private practice without doing anything further on the case. "I'm sorry, but things were so hectic when I was leaving, I simply forgot about this case."

I immediately contacted the new lawyer who had been assigned to the defendant. I urged him to move for a new trial, setting aside the conviction of the last one, and said that I would not oppose such an effort. I supplied an affidavit setting out what I had done.

Eight months after the trial, the conviction was set aside. The defendant had been in prison all this time. I was in the corridor of the courthouse waiting for an elevator when he approached me. I didn't recognize him. He reintroduced himself to me and thanked me.

Because the defendant had already served so many months in prison and because it was the first time he had been charged with an offense, it was not difficult for me to convince my superior not to retry the case. And I will never know what another jury would have done with the expert's testimony had it been submitted with the original evidence.

Since I hadn't had a "substantial belief" in the defendant's innocence, but believed only in the possibility of his innocence, Judge Barrett would have maintained that legal ethics required me to continue the prosecution of the case, leaving it to the jury to make the final decision about guilt. But I had not been able to let the case rest because I had found the possibility of having convicted an innocent man too upsetting from a personal standpoint. The prospect of fighting for the acquittal of guilty men, as I later would do as a defense lawyer, didn't disturb me--denying society the conviction to which it was entitled was a different matter, because "society" was too abstract an idea for me. But Mrs. Lewis, the nurse I humiliated years later, would be a casualty of my skill as a defense lawyer in winning an acquittal, and Mrs. Lewis was not an abstract idea, even if it had taken her screams to bring that fact home to me.

As I thought back on my prosecution of a possibly innocent defendant, I noticed a disturbing similarity between my reactions at that time and my reactions ten years later in the case involving Mrs. Lewis. During the two-week trial I had studied the defendant almost constantly, watching his every gesture, measuring his every mannerism, to ascertain how he would respond during my cross-examination of him. Finally, when I asked him questions, jabbed, and poked and pounded him with questions, I never took my eyes off him. It was I, not just the victim, who should have been able to say, "I'll never forget that face." When I failed to recognize him in the corridor by the elevator, I told myself I had simply prosecuted too many cases--prosecuted too many defendants who looked alike and committed the same crimes. I had forgotten him, just as I was to forget Mrs. Lewis.

An endless procession of people passed before me when I was a prosecutor, and I convicted most of them. That meant not only overcoming their defenses during the trials, but also being in part responsible for their punishment afterward. Although they were guilty--often of atrocities--I was even more disturbed than I expected to be by the thought of anyone going to jail because of my skill. Unlike other prosecutors, I wouldn't appear on sentencing day to urge the judge to send someone away, but that didn't soothe my conscience very much--it just helped me to avoid thinking about it. I tried, as an act of will, to limit my vision to what I actually did in the courtroom--the trial was a fascinating process, a game, and I was good at it and getting better all the time. I didn't believe I was making the world safer from criminals; I was learning a trade that I enjoyed, and, like most prosecutors, I was getting the experience and credentials I needed to go out on my own in private practice.

It was around the time I met in the corridor the defendant whom I had perhaps wrongly convicted that I decided to leave the prosecutor's office. I'd been there for two years and had been thinking about moving on for some time. One afternoon I found myself in the middle of a summation in another case--calling for the conviction of yet another scourge of society--when I realized I had forgotten the defendant's name and the charge against him. I believed at the time that my absentmindedness resulted from not caring enough about the ultimate purpose of what I was doing; I wasn't sufficiently engaged, I thought. Sure, I still wanted to win, but that was simply because I always hated to lose anything. Things would be different as a defense lawyer, I thought. The object of the game would be to keep people out of jail. That would be worthy of the fight.

And so began my career as a criminal defense lawyer. Starting a practice was exciting, but it brought a host of new anxieties. It became clear immediately that the practice of law was, among other things, a business like any other business, and I gradually learned how it ran. I had been nervous about whether I could get clients, but they came. Within a year I was working between sixty and seventy hours a week and earning a good living. And that workload had continued in the busy years that followed.

If I had asked myself what personal satisfaction I was deriving from the work, I could have said that there was ample satisfaction in defending people wrongly accused of a crime except that very, very few of my clients had been wrongly accused. Since starting out, I had represented hundreds of people accused of crimes, and not only had most of them been guilty--many of them had been guilty of atrocities.

Hundreds, I had represented hundreds--trying to keep them out of jail, keep them out on the street. I could no longer deflect the realization--this chilling glimpse of myself--that I had used all my skill and energy on behalf of a collection of criminals. Not all of them, but many, had been monsters--nothing less--who had done monstrous things. Sure, some of them might have been guilty of crimes made inevitable by poverty, but their victims hadn't caused their poverty, and most of the victims were equally poor. Furthermore, many people from backgrounds similar to my clients' didn't go out and mug or rape or kill.

For years non-lawyers had been asking me how I could defend such people. For years I had answered, like a trained lawyer, like a lawyer who would have made Judge Barrett proud, that everyone was entitled to the best defense in order to make our system of justice work. Of course, that was true. But as I thought about my career while riding home from the hospital after my confrontation with Mrs. Lewis, I asked myself why I should spend my life with these criminals? Most aspects of a law practice are less anxiety-ridden, more profitable, and more prestigious than criminal law.

I had to admit that I was getting more out of what I was doing as a criminal lawyer than money or the intellectual satisfaction of supporting the legal system. I would confess, over the years, to ego gratification and the joy of good craftsmanship: plotting out an intricate strategy, carrying off a good cross-examination, soaring through a moving summation--and the sound of a jury saying "not guilty"--are all thrilling. But why did I find it so thrilling? I knew, but only vaguely, that on a personal basis my courtroom performances also had something to do with a need for power and control, respect and admiration. And as for any moral component to my work, I knew it had less to do with right and wrong than with an obscure identification with the underdog, even a despicable underdog, against authority.

The most disturbing question people often put to me--a question asked accusingly, over and over, but without touching me until now--was: "Don't you take responsibility for what a criminal you get off may do next?"

"Very little. About as much as a doctor who repairs the broken trigger finger of a killer," I used to answer flippantly.

I could no longer give that answer. I didn't want to be flippant with Mrs. Lewis, nor could I dismiss her with lofty, jurisprudential arguments. The ferocity of my courtroom performances, and those of other criminal lawyers, had terrible consequences on individual lives. Maybe Mrs. Lewis was one of many witnesses I had humiliated who were not nearly as despicable as I had made them out to be. Although she could very well have acted in a furious manner with me even if she had been falsely accusing my client, she might indeed have been raped and sodomized, which made me responsible for her unjustified disgrace. And still worse, at some level I must have recognized this disturbing possibility before, even while I attacked her in that crowded courtroom.

After the trial the judge told me I had dealt with this woman "brilliantly." I had done what a criminal lawyer was supposed to do. Now six months after my "victory," I felt shaken. I could understand the severity of my reaction only by assuming that it had come at a time when I had accumulated, without realizing it, a number of reservations about my work. I sensed that my distress was not just a personal matter but revealed some of the painful moral and emotional dilemmas of my profession.

By the time I arrived home from the Newark City Hospital that night, one thing was clear: that nurse's anger, her palpable hatred of me, frightened me. Not that I expected her to harm me physically, but I was frightened by the person she saw . . . frightened that I could be seen that way . . . frightened that I might be that person.