Authors: Richard Dooling
His appointed case! In the Eastern District of Missouri (St. Louis) and in many other federal districts, the district courts have a long-standing tradition of assigning every new lawyer admitted to practice in the district a pro bono case, usually an indigent criminal or civil rights plaintiff who, for whatever reason, cannot be represented by the federal
public defender. It’s a rite of passage for new lawyers who don’t know which end is up in a drug conspiracy trial, and it’s the bane of big law firms, whose partners lose hundreds of billable hours’ worth of new associate time to the defense of guilty criminals or the filing of often frivolous prisoners’-rights or discrimination suits.
Watson knew he was due for his appointed case, because three of his classmates who were sworn in with him had already received theirs. He’d had secret hopes for a criminal case, because back in law school—before becoming husband to his wife, Sandra, and father and provider for their children, Sheila and Benjy—he had aspired to being William Kunstler, Gerry Spence, or Clarence Darrow. A legal warrior and protector of downtrodden outcasts. Instead, he became an overpaid silk-stockinged Westlaw geek for the partners of Stern, Pale. A criminal case might satisfy some of his former cravings for glory. But big criminal cases usually went to the federal public defender. Besides, a federal criminal appointment would tear some ragged, deep valleys in Watson’s 180-day moving average of fifty billable hours a week, because all of the appointed work would be nonbillable. In his day, Clarence Darrow probably didn’t turn in time sheets to the management committee, or answer to the wife and kids when he passed on the family vacation and took a case for no pay. Or if Clarence answered to a wife, she probably didn’t have Sandra’s withering contempt for professional frolics and detours—like defending guilty criminals—that would do nothing to advance the welfare of their traditional family.
He called Judge Stang’s clerk and exchanged pleasantries with a pleasant young woman. He patiently waited for her to tell him he had been assigned a nice Title VII employment discrimination case, an inmate wanting his sentence corrected from 580 years to probation, or a Social Security matter—maybe helping a destitute widow make a claim for benefits.
“It’s a murder case,” the woman said pleasantly.
“Murder?” Watson choked. It was criminal, all right—beyond his wildest dreams, verging on his wildest nightmares. “Since when do they have murder trials in federal court?”
“Let’s see here,” she said. “Looks like the murder occurred on an army base, in the on-base housing where the defendant was staying with his wife, who is in the reserves. That’s military reservation, meaning it’s federal jurisdiction, which puts it in U.S. district court. And the U.S. attorney is seeking the death penalty under the Hate Crime
Motivation or Vulnerable Victim provisions of the new federal sentencing guidelines. It’s the federal version of all those state penalty-enhancement statutes.”
“It’s a hate crime?” asked Watson.
“Why don’t you read the Complaint and Affidavit? It probably came through on your fax machine a few minutes ago. It’s murder, and the government is saying”—Watson heard pages riffling—“here we are, paragraph seven: ‘The defendant intentionally selected his victim as the object of the offense because of the actual or perceived disability of the victim—deafness.’ ”
“Deafness? And they’re saying what?” Watson asked, amazed that there was such a law and doubly amazed that prosecutors actually used it. “You mean they’re saying he shot a deaf guy because he hates deaf people?”
“I guess so,” said the clerk. “Hold it. It also says”—more riffling—“paragraph eight: ‘The defendant intentionally selected his victim as the object of the offense because of the actual or perceived race of the victim—African-American.’ The victim must have been a deaf black guy.”
Murder! Joseph T. Watson, Esq., recent graduate of Ignatius University Law School and winner of the Computerized Legal Research & Writing Award, was the attorney of record for a hate criminal accused of murder! He panicked and did the noble thing, which was to argue his own incompetence, taking the defensible position that he was not a real lawyer.
“This must be a mistake,” he said. “I’m not a real lawyer. I do computerized legal research. I’m a Webhead and Westlaw expert. I’m not an officer of the court. I’ve never even been to court, except to get sworn in. I spend roughly eleven hours a day foraging in computerized legal databases retrieving precedent—cases that support the legal theories of senior partners who pay me handsomely for my skills.”
Even as he was attempting to beg off out of fear, he was tempted—exhilarated even—by the prospect of doing something—anything—besides fifty hours of legal research per week, every week. All he had had to say was “Yes, ma’am,” and he could play at being a real lawyer, a trial lawyer, a criminal defense lawyer. But a first-year associate taking on a murder case for the sake of trial experience was like a med student dabbling in a little brain surgery.
“It says here you do discrimination work, Title VII cases, and so on,” said the clerk.
“Employment discrimination,” said Watson. “I’ve done computerized legal research and written legal memoranda for partners who defend large employers who have been unjustly sued by disgruntled employees, but—”
“Judge Stang said these bias crimes are a lot like discrimination cases,” said the clerk. “Think about it. Killing somebody is the ultimate form of discrimination. You shouldn’t have any trouble.”
“But I’ve never uttered word one in a courtroom!”
“Which puts you in the same boat with all the other young lawyers who get appointed every day,” said the clerk. “Besides, you work at Stern, Pale. It’s the best firm in town. I’m sure you’ll do a better job than most of the appointed lawyers we see down here.”
Again, the prospect of a real case—his very own case!—beckoned, but he also vividly imagined his normal workload, his billable hours, and his performance profile all ravaged by a murder trial in which he would be representing a nonpaying client. What would Clarence Darrow do? Selflessly think about the poor client, probably.
“I am not a trial lawyer,” he continued, wondering how much trouble he could cause the government by filing a dozen vigorous, well-aimed pretrial motions. “Stern, Pale hired me because I have a certain facility for answering essay questions on law school exams.”
“I’m looking at the judge’s notes,” said the clerk. “He says you wrote a law review article called ‘Are Hate Crimes Thought Crimes?’ in the Ignatius University law journal.”
Watson was flattered that Judge Stang had noticed his student comment but alarmed that anyone would think it qualified him to handle a murder case.
“That’s me,” he said. “But that’s just footnotes, research, and so on. That’s not murder!”
The clerk sighed. “The case has been assigned to you. I don’t know if there’s such a thing as a Rule Forty-nine Motion to Withdraw Because of Your Own Incompetence, and I don’t think your client can claim ineffective assistance of counsel until you lose the case, but if you want to file something, see Judge Stang at informal matters after the arraignment. I’d wear a helmet if I were you.”
The clerk added that Watson could watch
Channel 5 Live
at ten if he wanted to know more about the case, that newspaper people were
calling, that Lawyers for Deaf Americans, lawyers for the National Organization for Women, NAACP lawyers, civil rights attorneys, and hate crime experts were all calling for information about the case, so maybe he would be able to fob it off on an attorney for a special interest group or on some other eager young defense lawyer willing to work for nothing while building his or her reputation.
“This is an academic discussion, however,” said the clerk. “You’ve been appointed. I can’t unappoint you. Only the judge can do that. Do you know Judge Stang?”
Legends and war stories came immediately to Watson’s mind. The time Judge Stang—a cantankerous graduate of the Roy Bean school of jurisprudence—ordered an attorney to put a bag over his client’s head, because the judge was sick of the man’s supercilious grin. The time he ordered a federal marshal to handcuff two squabbling attorneys together and lock them in a holding cell. The time he flew into a blind rage (later diagnosed as
, a species of judicial seizure activity) and attacked thirty lawyers with the courtroom’s iron flagpole because they were unable to settle EPA Superfund litigation after three years of discovery. He had more nicknames than any other judge. Some called him Ivan the Terrible, others, Blackjack Stang; still others referred to him as the Grand Inquisitor, Darth Vader, Beelzebub, the Gowned Avenger, or the Prince of Darkness.
“I’ll tell you this,” she said, “if you try to withdraw from an appointed case, and your only excuse is that you lack trial experience, Judge Stang will fine you for contempt, and then he’ll cut your ears off with a butter knife.”
tern, Pale policy and procedures required a conflicts memo to be sent via E-mail notifying the firm and its 572 lawyers in offices all over the world of any prospective new clients. The clerk’s fax was long on charges and short on facts.
“James F. Whitlow,”
Watson typed in the new-client box—the first time he’d made such an entry.
“United States v. Whitlow,”
he typed in the new-matter box. He sent the conflicts memo and then selected the West CD-ROM version of Title XVIII of the United States Penal Code—the title that dealt with criminal offenses—took the disk home, and looked up all of the crimes charged in the complaint.
The next morning’s
was more helpful than the conclusory legalisms set forth in the clerk’s fax.
S SLURS PROMPT HATE CRIME INVESTIGATION
. Watson read it in his office while waiting to see Arthur, who had left an early-morning voice mail after reading the conflicts memo. He had asked Watson to see him about “taking steps to be certain his new criminal appointment would not interfere with his responsibilities to the firm’s clients.”
According to the
, the murder had occurred in the defendant’s bedroom. The defendant’s wife, serving in the army reserves, was the only witness. No mention of what the wife, the victim, and the
defendant were doing at the time, who got there first, or last. The story had the heady breathlessness of breaking news, garnished with the usual journalistic sociology: a warning of a local and national epidemic of hate crimes. Throughout the 1990s, the FBI had collected statistics on hate crimes, pursuant to the Federal Hate Crimes Statistics Act. Then, in 1999, new categories were added to the statute providing enhanced penalties for attacks motivated by pro-choice or antiabortion sentiments. Now, all fifty states and the federal government had laws against hate crimes, and those laws had in turn spawned task forces—hate crime investigation units staffed with hate psychologists and forensic psychiatrists—and more laws designed to prosecute hate criminals for a growing variety of prohibited hatreds.
According to the article, the victim, Elvin Brawley, was a locally prominent artist, an engraver, a craftsman—“a black William Blake,” in the words of one African-American professor at the local community college. “Elvin Brawley designed and printed his own poetry books, worked at a local computer-graphics boutique, and still found time to be active in both the deaf community and the black community,” said the professor. Others praised Elvin’s knowledge of computer science and how he had tirelessly worked to develop and implement computer technologies, especially for the underprivileged and those with special needs. A local civil rights leader proclaimed that Elvin Brawley’s death was “an outrage and a waste of the human spirit, a tragic loss to the black community and the deaf community, who now console one another in sorrow and grief and cry out for justice.”
The accused, James F. Whitlow, was a native South St. Louisian—a working-class Catholic boy who had been a year behind Watson at Ignatius High, though Watson hadn’t known him and now, seven years later, had only the vaguest memory of Whitlow’s name and none of his face. But Watson vividly recalled Whitlow’s reputation as a hothead, including one specific episode he’d heard recounted a dozen times in high school, told and retold by various witnesses who seemed at once intrigued and sickened by the incident.
Whitlow had gotten into an argument with another kid, a two-hundred-pound right tackle—Terril Williams, a black potential All-American—at a south-side White Castle hamburger joint. The manager had told them to take it outside, and Whitlow, holding up his hands in apparent capitulation, had said, “We are on our way outside right now. Aren’t we?” His adversary nodded in response and prepared to leave.
Whitlow reportedly had put both of his hands on the metal chair he’d been sitting in, as if to push it in, and then had swung it aloft in a split second and brought it down on Williams’s head. Williams had sat out the rest of the football season with a fractured skull.
Charges were dropped because of Williams’s own record of criminal assault and the traces of PCP and amphetamines that had shown up in his blood at the hospital. Whitlow—who had magically gotten away with nearly mortal violence—acquired the school-yard reputation of an Al Capone, cunning and ruthless. He wasn’t very big, but he had one formidable weapon—his proven willingness to damage seriously and permanently anybody who crossed him.
By the time Watson met with Arthur, his boss—a former prosecutor—had already called around for the inside dope on the case.
“This is bad,” said Arthur, pacing behind his tribunal-size desk, while Watson cowered in a hard-back chair in front of him. “High profile
bad. We’re talking about weeks of preparation, research, pretrial motions, followed by a murder trial, appeals. This could go on for months. Years. We need a way out of this one.
“You need to file a motion to withdraw,” Arthur insisted, glancing at his desktop, where James Whitlow’s mug stared back at him from the front page of the
“Failing that, the best you can do for the unfortunate fellow is plead him out on a lesser included charge—manslaughter, or something.”