Introduction

 

There have been many, many memoirs by lawyers, particularly criminal defense lawyers. Some are written by (or ghost-written for) celebrity attorneys who have spent a lifetime promoting themselves and have become habituated to the limelight (for example, F. Lee Bailey); by others who are less-well known, but feel an overwhelming urge to write about some great injustice; by dedicated men and women with a noble cause to promote; by law professors, public defenders, Fortune 500 suits and Mafia mouthpieces  (if those two are not the same); and enough miscellaneous others to fill the bookshelves of the main public library of a medium-sized city (Des Moines, Iowa.) The above list does not include the numerous works about famous trials, nor those about some particular aspect of the law or the legal system such as the death penalty. I would suggest of the overwhelming majority of these books, that if the last copies were lost in a fire, no-one, with the possible exception of the authors, would ever miss them.

Given such a hyper-abundance, even superfluity, of legal memoirs, it is incumbent upon me to justify my temerity in this collection of cases from my profoundly obscure legal career. Which is: of all the many books by and about lawyers and the law that I have read, I don’t know of one that looks inside the courtrooms where the cases that don’t get mentioned on cable news, but which constitute the great majority of cases in the United States, and are tried (or pled out) by poorly-paid lawyers representing run-of-the-mill clients.

Whereas criminal prosecutions are conducted by full-time government attorneys at the county, state or federal level, there is no such uniformity on the other side. Criminal defense attorneys range from the lordly nobility of retired federal judges and former Attorneys General whom only the wealthiest can afford, to the peasantry of neighborhood general practitioners, who rarely if ever are hired for a case more newsworthy than a DUI (Driving Under the Influence) or a local hothead charged in a bar fight.

Given that most criminal defendants are indigent (surprise!), and thus unable to hire a private attorney, the organization representing the lion’s share of defendants are represented by the Public Defender, called the Defenders Association in Philadelphia and the Legal Aid Society in New York City.  However, for a variety of reasons discussed herein, the Public Defenders must turn away many more cases than they can accept. Those who are not represented by the PD are provided with court-appointed conflict counsel by their local government, which is where I come in.  

Practically all of my cases were court appointments, as they were for other attorneys like myself, who were obliged to labor at the bottom of the legal food chain. My friend Peter, an excellent lawyer who started out with the Legal Aid Society in Brooklyn, described court appointments this way: “We get the crumbs…,” he would say, wriggling his fingers to suggest tiny objects falling through space, “…crumbs from the table.”

Except where noted, the names of lawyers, defendants, witnesses, judges, et al, have been, in the immortal words of Jack Webb, “changed to protect the innocent,” (by the way, was any suspect on Dragnet ever innocent?) This is to say nothing of protecting the far more numerous, not-so-innocent, persons mentioned herein and, not incidentally, to forestall any misguided defamation suits. Likewise, the times, dates and specific places named are not the ones recorded in the trial transcripts. This means that technically this book can be classified as “fiction.” As an officer of the court, however, I cannot tell a lie, and I can assure you that everything in this book actually happened pretty much as described. That being said, I should add that I have taken the liberty of following the practice used in the television series Law and Order, by summarizing and/or skipping over the most tedious parts of the trials. You will therefore be able to vicariously enjoy the most interesting moments in these cases without the tedium suffered by the actual participants that constituted most of the process, such as sitting around a courtroom for half the morning waiting for a case to be called to trial, then having it continued to some date in the distant future. If you feel cheated by these abridgements and want to experience the real thing for yourself, just head down to your local county courthouse, find a comfortable bench in one of the courtrooms, and settle in for the day. I recommend that you bring a good, long book with you.

Most of my 30 years at the bar were spent as a court-appointed criminal defense attorney, and the majority of those in Philadelphia’s Criminal Justice Factory… I beg its pardon…, I meant, of course, the Criminal Justice Center. Read on, and you will be rewarded with a view of our legal system from a perspective largely unknown to the general public: a rodent’s-eye-view. I hope my readers will find the trials and anecdotes illustrating how the system works and how it doesn’t, interesting and instructive. I also undertake to explain certain legal concepts when they arise in the course of a particular case. This will enable you to impress your friends the next time you find yourself discussing the latest legal difficulties of a celebrity or former President (no names, please.)

In the last decade, a few of the systemic injustices suffered by our poorest and least powerful citizens have been corrected (for example, the long overdue repeal of most of the draconian mandatory sentences for drug offenders.) On the other hand, while some light is finally being shed on persistent inequities such as the racism, abuse of power, violence and corruption endemic to many, if not most police departments, and the untroubled acceptance of these conditions by local district attorneys, as of this writing, these problems remain as resistant to change as ever. Perhaps this book will in some minuscule way encourage the institution of badly needed reforms. Let us hope that something does, because otherwise we may as well give up hope of ever having even an approximation of a fair criminal justice system in this country.

One:

The Time-Cops, or How Can You Be in Two Places at Once, When You’re Not Anywhere at All?

 

Officer Ronald Johnson is testifying for the Commonwealth of Pennsylvania in the case of Commonwealth v. Gibbs, November Term, 1996, Court of Common Pleas Number 2103, the Hon. John J. Cheever presiding.  “On the night of February 23, 1997, my partner and I were assigned to investigate community complaints about narcotics sales on the 800 block of Cambria Street,” he says.

Johnson testifies like most Philadelphia narcotics cops: he rattles off his testimony as if it was a digital recording.  I’ve heard this same prefabricated evidence almost word-for-word a hundred times before, with only the names, dates and places changing from one case to the next. My problem is how to convince jurors who haven’t heard this stuff ad nauseum that police testimony like Johnson’s rarely has much relationship to the truth, being primarily a product manufactured to get a conviction.

“I set up a surveillance in an unmarked vehicle at the northwest corner of Eighth and Cambria Streets, where I observed the defendant over there…,” Johnson continues in an official-sounding monotone.

“For the record, the witness has indicated by point of finger the defendant Tyrell Gibbs, seated next to counsel,” interjects Assistant District Attorney Carla Tallow. “Please proceed, Officer.” 

Johnson drones on. “I observed this defendant with co-defendant Raheem Phillips…” [Phillips is not here. His case was disposed of months earlier, when he pled guilty to three open drug cases including this one, in exchange for a 2 ½ to 5-year sentence to cover all three cases,] “…sitting on a stoop on the opposite corner from where I had set up my observation post. Approximately five minutes after I arrived, the defendant was approached by a young black male, who engaged in a narcotics transaction …”

I am on my feet. “Objection. That is a conclusion,” I say. “Suppose we let the jury decide what they were doing?”

If you haven’t caught on yet, I am Gibbs’ lawyer. I’ll tell you more about myself later, but there’s no time now. I need to concentrate on Johnson’s testimony.

The judge looks down from the bench. He already appears to be tired of this case, and the trial has barely begun. “Objection sustained,” he says with an air of strained patience. “Officer, please just tell the jury what you saw.”

My objection and the court’s ruling have derailed the witness’s train of thought (if you can call memorized testimony from two hundred previous narcotics arrests “thought.”) “Could you repeat the question, counselor?”

Carla helps the witness get his wheels back on the track. “What, if anything, did you see the defendant do?”

The witness nods, the needle drops back down into the right groove, and the playback resumes. “I observed this defendant accept a quantity of United States currency from an unknown black male, then go over to the stoop of a house at 801 Cambria, where an individual later identified as Raheem Phillips was sitting on the front steps. The defendant gave the U.S. currency he had received from the black male to Phillips. Then he removed a cigarette pack from under the steps, retrieved several small objects from it, and returned to his original location, where he handed the small objects to the unknown male. The male then left the area on foot, traveling north on the west side of Eighth Street. This happened at approximately…”  Johnson consults his memo book, “…19:05…, that’s 7:05 PM,” he adds, for the benefit of those of us still using a 12-hour clock.

“And did you have an opportunity to make any other observations subsequently?” Carla’s technique is not exactly polished, so sometimes her questions can come out sounding a little awkward.

Nonetheless, the Assistant DA’s less than expert interrogation method does not throw the veteran Johnson off his game. He’s been questioned less artfully than this before, and he’s always managed to deliver his lines exactly as they were written in the script.  “During the next hour, I observed ten similar narcotics transactions between the defendants and various buyers,” he answers.

Ten! I think. Aren’t we laying it on a little thick, Officer Johnson?  

My client pokes my arm to get my attention.  Without taking my eyes from the witness box, I shake my head and silently point to the legal pad and pen on the table in front of him. Before the trial began, I explained to Mr. Gibbs how important it was for me to watch the witnesses testifying and hear every word of their testimony, and I could not afford to be distracted. I told him that if he had something he wanted to bring to my attention while a witness was on the stand, to write it on the pad, and I would read it as soon as I had the chance. Generally, the client is about as sharp as a bowling ball, and thus unlikely to have anything useful to contribute.

While Gibbs scribbles away, I speculate about how the prosecutor will explain to the jury what looks to me like a big hole in her case. How, I wonder does Ms. Tallow intend to account for the fact that not one of these buyers was arrested, something I already know from the discovery?  I can’t think of anything, at least not anything very plausible, and I doubt if she will be able to do any better. My guess is that she won’t even try. I expect her to skate over and around the issue in her summation, telling the jury that the police never lie, so whatever her cops said must be true. This is a more or less standard tactic for prosecutors dealing with loose ends like this.

If the Assistant District Attorney expects Officer Johnson to clear the matter up for her, she is out of luck. He now has the bit between his teeth and is rampaging freely over the fields of his imagination. “The last transaction took place next to my vehicle. A black female approached the defendant, and asked him for ‘two.’  She gave the defendant a ten-dollar bill. He crossed the street, took two small clear objects from the cigarette pack, and handed them to the female,” he says, looking at the jury. I am impressed by Johnson’s ability to keep a straight face while telling such a blatant fib.

I don’t know how these obviously fabricated observations are playing with the jury, but it requires an effort on my part to keep from shaking my head in disbelief. Does Johnson really expect the jury to believe that the drug dealer came right over to his car to make this sale, so that Johnson could not only see, but also hear the whole thing? Over the years, I have heard cops tell some mighty big whoppers on the stand, but this one is apparently bent on setting a new benchmark in prevarication.

“And what happened to the female?” Carla asks.

“She left the area on foot, eastbound on Cambria, and was not apprehended,” answers the witness.

No kidding, I answer in my thoughts.  We’ll have to have a little talk about those sales on cross, Officer Johnson.  

While Carla consults her legal pad to remind herself of her next question, I glance down to see what is on Mr. Gibbs’ mind. He has written: “The police reports. Times crossed out?”

I look at Gibbs, and he touches the upper right corner on the 75-48 Incident Report, above the space for “time out,” then then taps the “time out” box on the first page of the blue 75-49 Investigation Report. [The 75-48 and -49 are police forms generated by every arrest, and they usually constitute the most useful part of the discovery provided by the DA to the defense.]  Sure enough, the original entries---which are supposed to record the time when the arresting officer left the precinct to go out on the assignment---have been struck out with a black marker on both forms and new times written in. The original times are still legible, however, and it is the same on both reports: 20:05 in 24-hour cop time (8:05 PM to you and me). In both cases the new time is one hour earlier, 19:05 (or 7:05 PM). I had noticed this during my trial preparation, but it didn’t strike me as very significant at the time.  Now however, I am starting to have second thoughts. Maybe it does mean something.

On the pad, I write “? I’ll ask,” and show it to the client. He nods, satisfied with his contribution to the case. Neither of us realize it at the time, but Tyrone Gibbs has just put his finger on the key evidence in the case I like to think of as “The Unusual Affair of the Time Cops.”

My attention is drawn back to the witness stand, where Johnson has now rounded the far turn and is galloping down the homestretch.  “At about 20:00…,  8:00 PM…I observed this defendant and Phillips enter a Chinese restaurant located on the southwest corner of Eighth and Cambria. I called in for assistance, and identified the defendants to responding officers, who placed them under arrest.”

“Thank you, Officer Johnson,” Carla says, sounding pleased with Johnson’s evidence. “I have no further questions at this time.”

The judge looks down at me from his seat high above me. “Do you have any questions for this witness, Mr. Heller?” He asks.

I stand.  “Yes, Your Honor. If I may proceed?” I ask.

The judge nods. “Please do,” he says.

This is a big moment in the trial. If I can’t rough up Johnson on cross examination and knock some holes in his testimony, Tyrone Gibbs is probably going to be sent to stand in the corner for three to six years.

“Good morning, Officer Johnson.”  It makes a better impression on the jury if you are reasonably polite to the witness when you start the cross, and gradually work your way up to open belligerence.

“Good morning, counselor.” Johnson says, nodding amiably.

I have some questions I am just itching to ask.  The Commonwealth has (inadvertently I’m sure,) somehow neglected to ask Johnson what happened to all those buyers he observed, and I wouldn’t want Ms. Tallow to be embarrassed when she realizes she had overlooked such an important matter. I assume she will be duly grateful when I cover for her oversight.

“Officer, you stated on direct examination that you observed eleven transactions in the vicinity of Eighth and Cambria, all involving my client, in which, you say, he received money from various people, and gave those individuals small objects in return, is that correct?” I am setting the stage for the fireworks to come (or so I hope.)  

“Correct,” Johnson answers stolidly.

“And as you have testified, you believed those transactions to be sales of illegal narcotics, didn’t you?” I continue. As I ask this question, I walk away from the witness, to end up leaning on the rail at the far end of the jury box, so that the jurors are between me and the witness.

“I did,” he says.

“Then, will you please tell the jury…,” here I momentarily shift my gaze to meet the eyes of the fourteen good persons and true [twelve jurors and two alternates] occupying the jury box, “…what kind of narcotics were recovered from those eleven buyers when they were arrested, how the drugs were packaged, and whether the drugs and packaging recovered from those buyers matched the narcotics recovered at the time of the defendant’s arrest?”

Like spectators at a tennis match, the jurors’ heads swing back to Johnson as he answers, “There weren’t any, counselor.”

I do my best to sound surprised (in reality of course, I’m not at all surprised, since I already know this from the police reports.) I do a double-take, then repeat his answer back to him, “There weren’t any…what? Buyers arrested, or narcotics recovered from them, Officer?”

“Neither, counselor. No buyers were arrested, so nothing was recovered,” Johnson responds blandly.

Now I turn simulated surprise to simulated disbelief. “You didn’t arrest any buyers…you did say there were eleven of them, didn’t you?”

“Correct,” he answers in a bland tone suggesting that he wonders why I bothered to ask. “There was no back-up available at that time to arrest buyers.” From the expression on his face, it is clear that Johnson expects me, the judge, the jury and the rest of the world to accept this as a complete and final answer, and that as far as he is concerned, that is the end of the matter. If that is what he expects, he is in for a disappointment, as I am far from finished exploring this topic. Like John Paul Jones in his battle with the British frigate Serapis, I have not yet begun to fight.

However, for the moment, I switch to something else. “Officer, did you not testify on direct examination that you went to Eighth and Cambria that night to investigate citizen complaints of drug sales in that area?”

“Affirmative. When my partner and I received the assignment from the captain, he said…” he pauses, waiting to see if I will object to what his captain told him (technically, it’s hearsay.)  Since the entire purpose of this the question is to give the jury a chance to hear what the captain told Johnson, I do not object.

Seeing that I am not going to object, he finishes, “…that a local citizens group had been complaining to him…” (Not just hearsay, but double hearsay!) “… about the individual later identified as Raheem Phillips, who had been selling narcotics on the street at that location.”

“So, is it fair to say that you went out to Eighth and Cambria expecting to see Phillips engaged narcotics transaction at that location, and that if you did see him, you intended to arrest him and whoever was working with him?” I plow on.

He mulls this question over for a second or two, probably examining it to see if it’s some kind of trap. Deciding that it’s safe to answer, he says “Correct, counselor.”

Now that the pins are set up, it’s time to roll my first ball down the alley. “Officer Johnson, you will agree with me that one of the common ways of proving that someone is selling drugs is observe these sales, arrest the buyers, then compare the type and packaging of the drugs found on the buyers with whatever has been recovered from the seller, which would constitute physical evidence of both where and from whom the drugs came. Isn’t that right, Officer Johnson?”

 He can hardly deny it, but he doesn’t want to admit it to the jury, either. So instead of answering, “Yes,” or “No,” he tries to avoid answering at all. “No, not in this case,” he says, no doubt hoping that I will be content with this evasion.

I am not so easily sidetracked, however. “No, Officer, please listen to the question,” I persist. “In general, is that not one of the ways used by police to gather evidence of drug sales?”

“Yes,” he concedes, “it’s one way.”

“Wouldn’t the arrest of the buyers in an observation sale case like this provide objective evidence that the sales actually took place?” I ask. [In the specialized language of law enforcement, an “observation sale” means that the police stake out a location, watch a suspect and try to see him in the act of selling. In the other standard type of narcotics investigation, a plainclothes cop or someone working for police tries to buy the drugs the directly from the suspect. This is known as a “buy and bust.”] 

Johnson tries his non-answer again. “Not in this case, counselor.”

“Officer Johnson,” I ask, my tone a little sharper now, “didn’t you even arrest the female buyer who you say you both saw and heard purchase narcotics from the defendant?”