N
Page 4-Tuesday, October 31, 1978-The Michigan Daily
bhe mithtganB
420 Maynard St., Ann Arbor, MI 48109
Eighty-Nine Years of Editorial Freedom.
Confessions of a trial lawye<
By Seymour Wishman
Vol. LXXXIX, No.,47
News Phone: 764-0552
Edited and managed by students at the University of Michigan
Student solidarity
T HE MOST oft-stated excuse for
not voting in student government
elections i:s "MSA doesn't do anything
anyway." Sometimes this appears to
be the case simply because students do
not reap immediate benefit from the
actions of MSA. Last week's MSA
decision to boycott the presidential
selection process is a handy example.
The assembly voted to boycott the
process because the Regents refused
to give the student advisory committee
personal access to candidates, or to
establish formal lines of
communication amongst the student,
faculty, and alumni advisory
committees. The immediate effect of
this action is slight; the Regents will
still select the same president only
there will be no student input.
Viewed in this context, it might
appear that MSA has not acted in our
interests, since it has shut off any
influence students might have had in
the selection. Actually, though, we
have lost nothing. The Regents had no
intentions of heeding student
recommendations for the new
University president. They would have
put on a good show - looking pensive
while reading over the student
committee's li st of candidates and
nodding now and then - and then gone
ahead and chosen their own candidate
irrespective of student opinion.
What MSA did, then, was to expose
this process for the sham it really is.
By refusing to participate they showed
the Regents and the administration
that students will not be patronized and
pacified until we are given a
substantive role in determining the
future of the University.
We understand there are other
student groups - Mortar Board, for
example - that wish to replace MSA
as the student representatives in the
selection process. We strongly urge
these groups to reconsider. Such
actions would seriously undermine the
student solidarity needed to impress
upon the Regents and administrators
the need for increased student input
into the University.
MSA has taken a strong stand
against the corporate oligarcy of the
University; and it needs our support.
While the boycott may produce no
short-range benefits, meaningful
change in the University can only
come about through increased student
input, and the boycott is a first step
toward that goal.
It seems that lately bloopers and
gaffes are the stuff of which political
campaigns are made. We saw it in
1976, when Jimmy Carter avowed his'
conviction on "ethnic purity" and
Gerald Ford said there was no Soviet
domination of Eastern Europe.
Determining who wins and loses on
election night is no longer a process of
informed citizens going to the polls and
voting for the best candidate - it is a
process of elimination by who
misspeaks himself most.
In a televised debate Saturday night,
Senator Robert Griffin, engaged in an
uphill campaign to hold onto his seat,
told a reporter that, yes, we do now
have the technology to store the waste
disposed from nuclear power plants
safely. Without stopping there, Senator
Griffin went on to say that Michigan
with its salt caverns should not be
excluded from states, considered as
possible burial sites to dump the waste.
Griffin has advocated the
construction of new nuclear power
plants all along, but now he announced
he wanted to bury the waste in
Michigan. When Griffin was reminded
that even Republican governor
William Milliken opposed nuclear
waste disposal here, the Senator
corrected himself: "I think the state
should have a right to say no," he said.
Griffin added: "A lot of people are
unnecessarily frightened. The
technology is there. It is safe. There
aren't the dangers that Mr. Levin and
some other people are talking about."
Then yesterday, prior to the Detroit
debate before the Economics Club
Senator Griffin was forced to release a
clarification of his remarks. A press
release read: "My position is that I am
opposed to the storage of nuclear waste
in areas where the people or the state
government don't want it." Senator
Griffin's press release said he even
voted for anl amendment that would
allow states to veto any nuclear waste
disposal facility.
It seems that in the crossfire of
political debates, truth is always the
first casualty. Only one fact is plain -
scientists and engineers still disagree
as to whether nuclear waste
constitutes a health hazard, even if
buried in sealed containers. For every
scientist Senator Griffin- can quote
saying nuclear burial is safe,
opponents of nuclear waste disposal
can find a scientist to challenge that
view.
There is, then, no clear-cut answer
on whether the technology to bury
waste anywhere really is there, and
whether nuclear waste is as safe as the
senior Senator seems to think.
Senator Griffin seems to have
forgotten - if only momentarily -
that the people of the state have
already voiced their opinion through
an April resolution of the state
legislature on nuclear waste disposal.
Until there is conclusive and
undisputed evidence that the waste is
not harmful, or until alternative means
of disposal are found - such as safely
shooting it into space - there should be
no waste burial, in this or any other
state. The potential technological
advantages of nuclear power do not
outweigh the public's health and
safety.
It was past 10 on a sweaty summer night
when I accompanied the sister of a client to
the emergency ward ofNewark city hospital.
I had successfully defended her brother
against a mugging charge about a year
before. Now that brother had been shot during
an alleged burglary, and I was rushing to the
hospital to prevent him from saying anything
incriminating to a nurse or doctor-or, worse,
the police.
My client's sister and I joined the parade of
wounded and mutilated bodies staggering
through the swinging doors. Suddenly, across
the lobby, a heavy-but-not-unattractive
woman in a nurse's uniform shrieked, "Get
that mother --out of here!" Two women
rushedforward to restrain her. "That's the
lawyer, that's the mother-lawyer!" she
shouted.
I looked around. No one else resembled a
criminal lawyer. Still screaming, she
dragged her two restrainers toward me. I was
quite baffled. As the only white face in a
crowd of 40, 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 testifies 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 friends back to your apartment and
had a good time?
LEWIS: No!
WISHMAN: And after you had that good
time, didn't you ask for money?
LEWIS: No such way!
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,
the police doctor found no evidence of force of
trauma? ,
LEWIS: I don't know what the doctors
found ...
I walked past the screaming nurse without
acknowledging her and went off to tend to
business with my burgler.
Later that night, as I drove home from the
hospital, I tried to recall all the details of that
trial. I had done a job on the victim. . . alleged
victim. But, of course, to be effective in court
a criminal lawyer has to act forcefully-even
brutally-at times. I had come early in my
career to regard the 'cross" as an art form.
I've frequently discredited witnesses.
Nothing personal. This woman simply-didn't
understand that.
But this woman was upsetting me. I
couldn't just dismiss her with jurisprudential
arguments. Maybe she was one of many
humiliated witnesses who were not as
despicable as I had made them out to be.
Maybe she was telling the truth. Maybe she
had been raped and sodomized. And maybe I
was responsible for her unjustified public
disgrace. Worse, she may have been one of
many.
I have come to believe that my discomfort
after this episode was not just a personal
matter, that it also revealed certain
occupational hazards of my profession. A
criminal lawyer moves in a world filled with
aggression, violence, incompetence and
deceit. And one cost of the administration of
justice is the damage done to the participants.
Though surely the emotional and spiritual
damage is worse for defendants-and still
worse for victims-the lawyer can be scarred
in the process. I've had to adjust.
Just about every client has, at some point,
lied to me. Several clients have insisted on
taking lie-detector tests-until I've told them
I believed the machine tobe 100 percent
effective. The few clients who have gone
ahead with the test failed. -But while I do
consider the lie detector to be fairly accurate,
I must confess that when I said I thought the
machine was "100 percent effective," I was
lying.
And criminals are not the only liars.
Witnesses, paid experts (such as
psychiatrists), prosecutors-even some
judges-lie. Many cops, I suspect, can no
longer tell the difference between a lie and a
grapefruit.
Besides lies, I am surrounded . by
incompetence. On one.side are the clients,
each a failed rapist, burglar, murderer or
whatever. If they had been successful, they
wouldn't have needed me. Once a 20-year-old
college kid came to my office to tell me he had
succeeded in making a political
statement-but had, unfortunately, failed in
making that statement.anonymously.
"What was the statement?" I asked with
"And?"
"I was photographed carrying a can of
gasoline," he added sheepishly.
Rather than fight a losing battle on some
tenuous free-speech theory, I eventually
worked-out a deal in which my client, the
author of the burning political statement, got
probation. To have "walked" after destroying
almist a million dollars worth of property, not
to mention the people he could have killed!
The deal pleased my client. I was appalled.
On the other side, the government manages
to present an astounding array of professional
incompetents. In one homicide, my client was
acquitted of murdering his daughter because
of the state's bunglings. The cops illegally
searched my client's apartment so the whips
and blood-stained sticks were inadmissible.
The police photographer lost the most
gruesome close-ups of the dead girl, and the
medical examiner who did the autopsy could
barely speak English. And in the case of the
nurse who'd claimed rape, it was possible
that the doctor who found no eficence of force
or trauma was also incompetent.
It would probably be easier to win criminal
trials if I didn't have to rely so heavily on the
state's incompetence, and instead rested my
case more on the evidence of my client's
innocence. But there's a problem with that
strategy. Nearly all my clients have been
guilty of something, although occasionally not
of the crime charged. In law school I had been
taught that in protecting our citizens, it is
"better 100 guilty go free than one innocent be
convicted." I had assumed that was an
exaggeration to make a point rather than a
wdrning to consider before becoming a
criminal lawyer. I have often wondered which
lawyer kept getting the "one." Perhaps some
other lawyer was getting my share.
Many of my clients are monsters who have
done monstrous things. they are people of
bestial cruelty, without grace or remorse.
One way to deal with shocking behavior is to
create a separating distance.
But at some deeper level, regardless of how
detached one feels, there is a psychological
cost of each slice of courtroom life for the
criminal lawyer too long in the business.
Destroying witnesses can lead to an
arrogance and an inflated sense of control
over people that is, at times, difficult to leave
behind in the courtroom.
Even more dismaying, the need to function
dispassionately has widened the distance
between my natural emotions and intellectual
reactions. In the murder case where my
client was charged with murdering his
daughter, I constantly resisted calling the
two-year-old victim "it" in front of the jury,
but "it" was usually what I thought. This
detachment is exacerbated when-as my
outrage over that "prostitute," Mrs. Lewis,
slandering the good name of my client by
claiming rapt-the lawyer conjures up
emotions in an effort to influence the jury.
These contrived emotions are nothing less
than deceitful performances. When too many
such performances are successful, emotions
in other contexts become successful.
Part of the problem is that the trial itself is
ritualized aggression. The object of. the
contest is not "a search for truth," it's simply
a struggle for victory. Fighting as vigorously
as possible to-win for one's client is in the
highest tradition of the profession. The less
worthy the client, the more noble the effort. (I
was distressed, not long alo, to realize that I'd
rather represent someone who was guilty,
because the pressure of fighting for someone
innocent might disturb my detachment). This
"professionalism" makes a virtue out of
detachment from the client and fosters a
disassociation that can distort other parts of
one's life.
I see myself, finally, as having chosen to be
an essential part of an arbitrary, frequently
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racist and often brutal process. Many
defendants are convicted for acts made
inevitable by poverty. When such a client o
mine goes to jail, I am despondent not only fo4
having personally failed in beating "The
system," but for having, in effect, been party
to a savage conspiracy of a society that has
failed. The courts were never intended to
discipline, and they are by no means capable
of regulating such a large segment of our,
population, which has developed its own rules
of sur-vival. Pompous judges robed in
majestic principles merely administer
society's inequities. The statistics evidenc
the design-the percentage of black an
Hispanic prisoners as compared to whites is
chilling. And what we do with prisoners
degrades us even more-warehousing them
while furnishing all basic needs except
heterosex is not only silly, it's vicious. -
But there's still the dilemma of deciding
what to do with a rapist, or someone whQi
burns buildings, or a man who sprays mace at
old women, or a father who bludgeons his two-
year-old daughter to death. "How can you
defemd uch people?" I am asked.
My initial response is usually that
everyone is, of course, entitled to the best
defense. Then I admit to ego gratification and
the joys of good craftsmanship. Most people
nod when I mention the need to make a living.
And it is certainly a possibility that some of
my clients are innocent.
But sometimes, late at night, I think back to
when I entered law school filled with high
expectations and prtinciples-several hundred
criminals ago. And I wonder about what I
have done and whether this is how one should
be spending his time.
In the last homicide I tried, I defended the
man who bludgeoned his daughter to death.
His wife-the mother of the child-testifies
against him. At one point, the D.A. showed
her photographs of her two-year-old daughter
lying naked on a slab, her little body scarred"
from whipping and cigarette burns, holes
visible where pieces of flesh had been torn
away, I can still hear her agonizing wail.
I then had to put the father on the stand to
deny being a cold, remorseless killer. the jury'
had to be convinced he was human before
they could believe he was innocent. But
through most of his testimony he failed to
change that ruthless image, speaking
impassively, with a mean mask of a face. As a
last resort, I surprised him with the same
pathetic morgue shots of his daughter that,
had been shown to his wife.
"Did you do this to your own daughter?" I
asked accusingly.
"Some of the marks. Yes. My wifebeat her
also.
"Howcouldyoudosucha thing?"
"She'd kept crying. She'd mess in he'
pants, things like that, I had to teach her," lie
answered tentatively, taken back by m
anger. "I thought that's what you're supposed
to do.
From the far end of the jurybox, holding the
photographs for the jury to see, my voice
charged with emotion, I screamed, "Did you
love her?"
"Yes," he said softly, looking at the jury. "I
loved her very much."
The jury, finally, saw the mutilated child.
and, at last, heard barely restrained pain and
remorse from my client. The male foreman of
the jury wept.
I was very effective.
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some trepidation.
"I burned down the
building," he said.
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Seymour Wishman is a New York
wyer and author of a novel "Nothing
ersonal." This article was written for
7j
student union
Pacific News Service.
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To the Daily:
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