Legal Battle Erupts Over Attorney’s Prediction

You’re facing a first-degree murder charge that means at least 20 years in prison. The prosecutor offers a plea bargain: second-degree murder and a 15-year term.

What are your chances of doing at least as well if you go to trial? Your lawyer says 95%. But the lawyer is wrong; the verdict is Murder One.

Now, what do you do?

What Darrell Allen Cloud did was to hire a new lawyer who moved to overturn the verdict. The grounds: ineffective assistance of counsel. In other words, his lawyer had screwed up by quoting those odds.

That move spawned a nasty and apparently unprecedented three-way legal struggle that could profoundly affect plea bargaining and malpractice standards for lawyers.

It was a case of “the defense bar turning on itself, eating its own,” said Daniel T. Satterberg, the county prosecutor’s chief of staff.

But this was more than a legal exercise. The fate of Darrell Cloud, victim and victimizer, was at stake; the debate over the price that he should pay for what he did is no simple matter.

Starting at age 13 and for the next 11 years, Cloud was sexually abused by Neal Summers, a popular teacher.

Nor was he alone. Summers plied a number of young boys with beer and paid some of them cash for sexual favors. Documents introduced in court included lists of 20 victims and a questionnaire that Summers had had Cloud fill out.

“Am I taking advantage of you?” Summers asked.

“Sort of,” was the handwritten answer. “You make me pay for every drop of beer I drink.”

Cloud went on to star in high school football and college baseball, but the years of abuse affected his mind, lawyers say.

On the morning of Jan. 31, 1994, Cloud donned combat fatigues and black boots, loaded his AR-15 rifle, drove to Whitman Middle School and shot Summers through the heart from 150 feet away.

Only after more than five months of treatment at Western State Hospital, including antipsychotic medication that he still takes, was Cloud cleared to stand trial in King County Superior Court.

Last March, a jury deliberated nearly 12 hours before rejecting Cloud’s insanity defense and convicting him of first-degree murder.

“Neal Summers wins again. Neal Summers rapes kids, children. Neal Summers now is continuing to punish Darrell,” said Cloud’s father, William.

The family was not about to accept the verdict.

On June 9, a day after Judge George T. Mattson rejected lawyer John Henry Browne’s motion for a new trial, the Clouds hired appeals specialist James E. Lobsenz, who moved to vacate the verdict and reinstate the plea offer.

Browne and Lobsenz, two of Washington state’s most prominent criminal defense attorneys, took center stage in a hearing that consumed 12 days between Jan. 29 and Feb. 20, nearly as long as Cloud’s trial.

Cloud, his parents and an aunt testified that Browne told them that they had a 95% chance of a verdict of innocent by reason of insanity. They also said that he failed to inform them that first-degree murder carries at least a 20-year prison sentence.

Lobsenz testified that Browne had confirmed to him that he had quoted those odds to the Clouds.

“Projecting a 95% chance of anything [at trial] falls below a reasonable standard of practice,” argued Lobsenz’s colleague, Lenell Nussbaum.

Browne disputed that account. He testified that after repeated demands for odds from Cloud’s father, he gave a 95% chance of avoiding a first-degree murder conviction through a hung jury or other result--”my best honest estimate at the time.”

He denied changing his story or failing to explain the mandatory minimum and accused Lobsenz of going along with the elder Cloud, who once went to prison for mail fraud, in trying to promote a fabrication.

William Cloud “has the worst judgment of any non-institutionalized person I have ever met,” Browne testified.

Bankrolled by his malpractice insurer, Browne hired his own lawyers--Cyrus R. Vance Jr., son of a former secretary of state, and Robert M. Sulkin. Moreover, he persuaded the judge to let him call witnesses and interrogate those presented by Cloud’s lawyers and deputy prosecutor Timothy Bradshaw. All concerned say this is unprecedented.

If Cloud wins, Bradshaw said, plea bargaining would be hamstrung.

“Who is going to be candid? Who is going to be willing?” he argued. “Like Darrell Cloud, he strikes out and then he wants to get another pitch. It doesn’t work out that way.”

“It chills lawyers in giving their honest opinions on cases,” Vance said.

Ten of the nearly 20 witnesses were attorneys--five criminal defense experts, two prosecutors, Lobsenz, Browne, Browne’s law partner and Browne’s wife, his co-counsel at trial.

At one point, while Nussbaum was cross-examining Browne, he leaned back, raised his eyebrows, opened his mouth, smiled slightly, glanced upward, lowered his eyebrows, sat up and fixed his gaze on her.

“Are there any more expressions you wish to give me, Mr. Browne?” she asked.

Moments later, after she used a felt-tip pen to write on an easel, Browne said pointedly, “Would you put the cap back on?”

Browne, 49, a striking 6-foot-6 former rock bassist, drafted much of the state’s insanity law as an assistant attorney general in the early 1970s. He later served as chief trial lawyer of the King County Public Defenders Assn., hiring lawyers who went on to become stars themselves, including Kate Pflaumer, the U.S. attorney for Western Washington.

The owlish-looking Lobsenz, 42, made his mark chiefly in appeals, notably a number of gay-rights cases and in American Civil Liberties Union work.

Lobsenz testified that in a telephone conversation on June 9, Browne admitted giving the Clouds a 95% chance of acquittal.

“He said, ‘Yes, Jim, and let me tell you why. I had just finished the Nagel case and pulled off a miracle, and I thought I could do it again,’ ” Lobsenz recalled.

Gregory Paul Nagel, a semiprofessional golfer with a history of depression, gunned down topless dancer Minta Smith after she spurned his affections. He initially was charged with first-degree murder, but after two hung juries prosecutors settled for a manslaughter plea.

On June 15, during proceedings on the change of counsel, Lobsenz and Browne conferred in an empty jury room. Lobsenz asked Browne to sign an affidavit confirming the Clouds’ version.

“I think he said, ‘You’re not going to win,’ ” Lobsenz replied. “I said, ‘You told Darrell that he had a 95% chance of acquittal, and I think I am going to win. . . .

“He leaned forward, and then he stood up. He said, ‘That’s a lie,’ ” Lobsenz testified.

“He was exceedingly angry and, and tall--very tall. He summoned up his total height and leaned over the table,” he said. “I felt a little intimidated because I felt maybe he was coming over the table.”

Browne testified that he never meant any physical harm.

“The last time I struck anybody was in the sixth grade, and I lost that fight,” he said.

The judge took the case under advisement, and a ruling is expected soon.

Meanwhile, legal experts who were interviewed took a dim view of Cloud’s accusations. By all accounts, Browne threw himself heart and soul into Cloud’s defense, spending more than 100 hours before trial in interviews and other research.

“It sounds like an awful case for proving ineffective assistance of counsel,” said Robert M. Bloom, a Boston College law school professor and author of the book “Constitutional Criminal Procedure.”

“No way. No way,” said Arnold Roseman of Scarsdale, N.Y., a former New York state commissioner of investigations and longtime criminal defense lawyer who has written extensively on the issue.

“That [95% assessment] was his opinion,” Roseman said. “To me, an opinion is not ineffective aid of counsel.”