Ingenious Tactics by Attorneys May Offset Long Odds
If anyone seemed destined for the gas chamber at San Quentin, it was Robert Anthony Nelson.
The Redwood City, Calif., drug dealer was facing first-degree murder charges in two execution-style killings. His accomplice already had cut a deal with prosecutors and would be testifying against him. The outlook was grimmer still because Nelson had boasted of the killings to four people. They, too, were to be government witnesses.
Then Nelson’s lawyer, Tom Nolan, hit on a decidedly unorthodox approach. He hired a talented writer to dig up as much sympathetic information as possible on Nelson. During trial, the attorney from Palo Alto used that information to portray Nelson as a life-long coward who had boasted of the killings merely to impress others. At one point, many of the jurors were in tears, Nolan recalled.
They eventually convicted Nelson--but only after nearly deadlocking on the question of Nelson’s guilt. And rather than condemning him to die, they voted for life without parole.
Nolan’s unusual tactic is characteristic of the ingenuity of criminal defense lawyers when representing clients who face seemingly overwhelming evidence.
‘The Wrong Move’
“A lot of lawyers panic. That’s the wrong move,” said Larry Pozner, a Colorado attorney and lecturer. “Sometimes the bigger the case and the more evidence there is, the easier it is to pick it apart. Even the strongest cases can show great weakness.”
But not always.
Sometimes, the legendary F. Lee Bailey conceded, there is little to do but “sit back and hope for two things: 1, that the government makes a mistake or, 2, that the judge makes a mistake--so you get another crack.” Added Harvard law professor Alan M. Dershowitz, “Sometimes the best you can do is go through the paces.”
One such seemingly difficult-to-defend case, based on prosecution evidence, is the current trial of Night Stalker suspect Richard Ramirez, who is charged with 13 murders and 30 other felonies, including robbery and sexual assaults.
With the prosecution having rested its case in Los Angeles Superior Court after about two months, six surviving victims have identified Ramirez as their attacker. Two others also have placed him at scenes of alleged Night Stalker attacks. There also appears to be a wealth of incriminating physical evidence against him, including shoe prints, fingerprints and firearms results, as well as a web of circumstantial evidence--plus an alleged confession to boot.
Ramirez’s attorneys are scheduled to begin presenting the defense case May 1. “It’s a case of mistaken identity,” said Ray G. Clark, one of his defense lawyers. “He’s no choirboy, but Mr. Ramirez was nowhere near these incidents.”
Most criminal prosecutions, of course, never go to trial. About 90% of all criminal filings throughout the country are disposed of through negotiated pleas, according to Gregory Thompson, chief deputy district attorney for Los Angeles County. Of the remainder, about 80% end in guilty verdicts, he said. But the more serious a case, the less the likelihood of a plea bargain.
And to be sure, not all criminal defendants are guilty. Just most of them.
“Any criminal lawyer who tells you that most of his clients are not guilty is either bluffing or deliberately limiting his practice to a few innocent defendants,” said Dershowitz. “Almost all criminal defendants are, in fact, guilty.”
Still, criminal lawyers must concede nothing when defending a case with seemingly overwhelming evidence, experts say.
“Most cases, at least initially, appear overwhelming--until you start investigating,” said Mary Broderick, an attorney with the National Legal Aid and Defender Assn. in Washington.
A sometimes-overlooked approach is to focus on what evidence the government doesn’t have, according to law professor Edward J. Imwinkelreid of UC Davis. “The path not taken is one of the best ways to create reasonable doubt. Look for the gaps.”
Pozner agreed. “When you first get a case, it may seem overwhelming. That’s because the reports are written by the police, who think your client is guilty. And so they include only the information they want you to know, which is usually less than all there is,” he said.
“So you have to go out, redo the entire investigation, and then you may find out that the facts aren’t nearly as harmful because they fit with innocence as well as guilt,” Pozner said.
‘You Can’t Give Up’
Added Wilbur F. Littlefield, the chief Los Angeles County public defender: “Lots of times, the case on paper looks better than it really is. So you can’t give up. You may find witnesses who will say, ‘That’s not the man who did it.’ But these people aren’t in the police reports.”
He continued: “If there is an oral confession, why wasn’t it written? If it was written, why wasn’t it tape-recorded? Sometimes prosecutors are so enamored with the 97% that they do have that they forget to explain the 3% that they don’t have.”
Imwinkelreid’s advice: “Ask yourself: If what witnesses say is true, then what else should be true? Pointing to the lack of evidence is both a legitimate and often effective way of generating doubt.”
As illustration, he cited a recent, seemingly open-and-shut murder case in Philadelphia in which the prosecutor was confidently predicting a swift guilty verdict while the jury deliberated. After acquittal, several jurors explained that they were persuaded by the lack of fingerprints--an issue the prosecutor never addressed, Imwinkelreid said.
“With the proliferation of scientific advances, including genetic DNA testing, jurors expect to have such evidence,” he said.
For prosecutors and defense lawyers alike, it is the complex case with multiple, first-degree murder counts that is rife with potential land mines. In these cases, said Imwinkelreid, “the sheer weight of a case can overwhelm a defense lawyer--even when the client is innocent.”
But for prosecutors, loading up a case with so many different counts can backfire, he said. A defense lawyer’s ability to rebut just one charge may have a “spillover” effect that casts doubt on the other charges, Imwinkelreid said. The risk of jury confusion is also great in such cases.
“Especially in serial-crime cases, if you can alibi one count--by showing that it was done by someone else--it really begins to weaken the prosecution case overall. So don’t let the cumulative weight get to you. Tell the jury, ‘Let’s take them one at a time.’ Divide and conquer,” Pozner added.
But the ripple effect may cut the other way as well, said Dean Gerald Uelmen of the Santa Clara University College of Law. “If jurors are inclined to believe that the evidence is strong on one count, they are more likely to convict on all counts.”
Another key to defending seemingly lost-causes, according to attorney Gerald L. Chaleff of Los Angeles, is to develop a theme from the outset. If a client is unsavory, and the evidence appears incontrovertible, he said, a defense lawyer may need to focus on the “why” of a crime in order to gain jury sympathy.
Another pervasive defense tactic is to delay a case endlessly. Witnesses may die. Their memories can fade. Evidence may be lost. And even if a defendant is eventually convicted and sent to prison, he will have received credit for time served in the local jail while awaiting trial. In the meantime, he has had the benefit of being closer to friends and relatives.
Deputy D.A.'s View
But such tactics border on the unethical, said Los Angeles Deputy Dist. Atty. Sterling E. Norris, a veteran prosecutor.
“It’s obstructionism. They do it not just to delay but to frustrate jurors in hopes that just one--and that’s all it takes--might become so angry that he will vote (against the government) to ‘teach the system a lesson,’ ” he said.
“The goal of most defense lawyers is not winning, but hanging, a case,” Norris fumed.
Defense tactics, according to Uelmen, must also be driven by the prospect of an appeal, particularly in death penalty cases.
“During such a trial, much of what a defense does is making and preserving a record in terms of issues that might lead to a reversal of appeal,” he said.
Dershowitz put it more bluntly: “You try to create a situation where there’s error at trial--so you can have an appeal.”
The Harvard professor elaborated: “It is the job of the defense lawyer--especially when representing the guilty--to prevent, by all lawful means, the ‘whole truth’ from coming out. It is not only proper but also obligatory for a defense lawyer to object to the admission of truthful evidence if that evidence was improperly obtained or is prejudicial.”
“It’s not our duty to walk on water,” added Ephraim Margolin, a San Francisco attorney and current president of the National Assn. of Criminal Defense Lawyers. “But we have to ensure that our clients get a fair trial. Our job is to make sure the government is put to the duty of carrying the burden of proof in every conceivable way.”
In Uelmen’s view, it is in the penalty phase of capital cases where defense lawyers “most frequently fall short . . . because they tend to focus so much energy on the guilt phase that they run out of steam by the penalty phase.”
Thus, Uelmen said, when trying a death penalty case, a defense lawyer must keep in mind the eventual likelihood of having to ask a jury to spare his client’s life. It is precisely for that reason that Palo Alto’s Nolan took the novel approach of hiring a writer as a member of his defense team for the 1981 trial.
Shortly before taking on Nelson as a client, Nolan had read Norman Mailer’s highly acclaimed “The Executioner’s Song,” based on the life of convicted murderer Gary Gilmore, who was executed by a Utah firing squad.
The book persuaded Nolan that a good writer can create a sympathetic story about even a despicable criminal. So he hired Lacey Fosburgh, a one-time New York Times reporter and author of “Closing Time,” a book about the so-called Mr. Goodbar murder in New York in the 1970s.
After spending hundreds of hours interviewing Nelson and his family and friends, Fosburgh produced what Nolan called a richly textured and highly interpretive mosaic of Nelson that “no lawyer or private investigator I know of” could have come up with.
Using that portrait, Nolan sought to demonstrate that Nelson was a timid person who had boasted of the killings because “he really wanted to kill the two people, but didn’t have the nerve to do it and that his accomplice had done the actual killings.”
‘Jurors in Tears’
Nolan recalled: “The character of this person was very difficult for me to understand. But Lacey was able to paint a picture of Nelson which, by the time of the penalty phase had the jurors in tears.”
Afterward, the San Mateo County Superior Court jury complained to the judge that it had had no option of a lesser sentence than life without parole, according to Fosburgh’s subsequent account of the case in Forum, a magazine published by the California Attorneys for Criminal Justice.
The jurors said they had barely considered the death penalty at all. “Furthermore,” Fosburgh wrote, “they revealed they had been split 6 to 6 during the guilt phase on whether Nelson had committed one of the homicides.”
One juror explained the panel’s ultimate verdicts by saying the killings had been “out of character,” according to Fosburgh.
The trial’s dramatic high point came when defendant Nelson “fell apart over several hours of tortured testimony in which he said he wished he had killed the two people and would give anything to have his wife and his father--sitting in the courtroom--be able to look up at him and think he had done it rather than know he was a coward who hadn’t,” Fosburgh wrote.
Many psychiatrists, psychologists, probation and parole officials do precisely the kind of background investigations that Fosburgh undertook in the Nelson case.
But as Fosburgh noted: “First, they work exclusively with the defendant and do not seek out potential witnesses. In addition, their information about the defendant is often circumscribed by a conceptual framework that ends up as nothing but jargon to attorney and jury alike.”
Nolan’s approach “is certainly not a formula for every case,” she concluded.
“But every case has its own particular puzzle, its own dilemma; and always there is an individual at the heart of it who has something about him that someone, somewhere, loves, that someone understands, and that someone finds appealing. The issue is to find the key to the puzzle and use it to the hilt.”