Friday, October 31, 2014


Justice today. Justice for once. Today was why I went to law school. To defend the unjustly persecuted.

All I had to do was convince 12 people to set free a man who raped several women and murdered his final victim in over 30 years ago.

I deal with civil commitment of sex offenders. It's a bullshit law cloaked in pseudo-science. State experts testified that a 50+ year old man was the same today as he was at 18. They said ominously that we could not know what he would do outside a controlled environment.

He had been paroled, but a different arm of the state just could not let go of him.

I got the case about a year ago. Looking at it, I thought "what a dog. How the hell can we win a case where the guy killed somebody."

Then I went to see him in prison.  And I realized I had to win this case.  He had changed. For real. College in prison. He gave me references of women he'd worked with in prison. I checked them out and they were glowing. He had become a model prisoner and a man dedicated to improving himself.

The state's case (which I anticipated) focused on a difference in his confession made in 1980 on one hand and what he told the parole board and sex offender treatment 30 years later. It centered on the precise manner in which he killed a victim. The state's unethical hacks testified that this discrepancy meant he was in "complete denial." It made his rehabilitative efforts meaningless, and his completion of sex offender treatment "technical." Although he had always admitted the murders and rapes, the inconsistency in his statements gave the state a way to continuously return to the manner of the death. How she died. When she died. The sex act occurring at the time of her death.

Again and again for two weeks, the jury heard about my client "fucking her ass." They heard how the state's experts had identified him as a psychopath.  This allowed them to say all his work and rehabilitation was a sham. Essentially, according to them, he was running a 30-year long con, and appearing to grow and change so that he could get out and rape again.

When the verdict came in, I was barely able to contain my anxiety. A verdict comes by way of note from the jury to the judge: "We have a verdict." The judge's clerk calls the lawyers for each side, and they come scrambling from their offices or coffee shops, sweaty and jangled to the courtroom.

When we got to the courtroom, the judge was still taking a plea from his criminal calendar, so we waited in the judge's waiting room with the Assistant Attorney General and state investigator.  The Assistant Attorney General was even more nervous than me. The jury had been out eight hours, and the State does not lose these cases. Almost never.

When we finally went in the courtroom, we waited anxiously for our client. He came in, looking serene, and wearing his prison greens as he had throughout the trial. Normally, prisoners get outfitted with khakis and a white shirt so that they don't look so much like prisoners. But my client had said he wanted to wear his greens to the courtroom. He would wear civilian clothes if and when he became a civilian again and not before.

He sat while I paced.  A man who's been down for 30 year and learned a sphinx-like gaze, he seemed unconcerned. My co-counsel, who has been invaluable throughout the trial, not simply as a source of advice and help, but as a friend to lend a hand when I felt weak, said "we should follow his calm."

I looked at him and saw that, despite his mostly flat gaze, he was scared. To death. I sat. If he can sit and be calm, so can I.

The jury came in. My heart pounded. The judge asked the jury if they had reached a verdict. The forewoman said yes, She handed the verdict sheet to a court officer, who handed it to the judge. The judge looked at it, handed it back to the officer, who handed it back to the forewoman.

The judge asked if the jury was unanimous on the first question: whether respondent now suffered from a disorder that predisposed him to commit sex offenses.




My heart dropped as my head dropped into my hands. I tried to gird myself for the loss -- both for my sake and my client's. I would tell him that he would be sent to a sex offender facility, but that he had a strong case on appeal.

My chest rocked with every heartbeat. It felt like it would burst from my sweated through shirt.

My co-counsel laid her hand on our client's forearm.

The judge asked if they had reached a unanimous verdict on the second question: whether my client had a disorder that resulted in him having serious difficulty controlling his sex offending behavior,


No! No! The impossible was real. I let out a half sigh, half cry, looked up at the ceiling and shuddered. I clapped my client on the back and kept the tears at bay.  A tear rolled down my co-consel's cheek.

As the jury left the room, I shook my client's hand.  Asked if I could hug him, and did.  All 74 inches and 300 pounds of him. I couldn't get my arms all the way around him.

When we reacted with such visible relief, the forewoman broke down in tears. Talking to the jurors afterward, I saw that she had overcome intense emotion to make the fair and legally justified decision.

Don't tell me nobody cares. Don't tell me regular people can't do the right thing. Those 12 people in the jury room wrangled and fought and struggled. They were afraid of my client and what he might do if released. But they stuck to the law. And they set him free (subject to parole) because the law said that they must.

I actually furthered justice today. I protected a man's liberty. I gave this man a chance to show, after over 30 years in prison, that even a murdered and rapist can be redeemed.

I did my job as a lawyer, buddhist, and human.

The judge, before the verdict, and as deliberations dragged on, asked if we (respondent's counsel) were upset that the first alternate had ended up on the jury. We said. "no, I think we like that guy." He's a computer engineer, and he seems like he knows how to think without emotion. The judge thought we should have challenged him because he was president of something like the Holy Name Society.

I think the judge's thinking erred in two ways. First is assuming that a catholic, religious person is going to automatically rule against our client, who sat in the position of defendant. Dedicated Christians may be more conservative than the society overall, but a dedicated Christian may well also believe in redemption more earnestly than a nominal Christian. Second, a Catholic in a hierarchical position is likely to be a rule follower who will not reach out to use this trial as a proceeding to punish someone. A rule-following Catholic is also likely to believe in fundamental fairness and see civil commitment after the completion of a long criminal sentence as fundamentally unfair.

When we talked to the jury, a corrections officer could not believe he had been left on the jury. He wanted to know why. The short answer is no amount of challenges in the world could get rid of all the potential jurors with biases against sex offenders. We can't challenge everyone.

The long answer is that he seemed like a fair/honest guy during jury selection, and we figured, as a correction officer, he would know what an out-of-control inmate was like, and he would understand our client's prison time in the right context.

Obviously, he ended up ruling in our client's favor. One lesson is that it's dangerous to rely on stereotypes. You can't say "no corrections officers," or you may miss a juror who can be really receptive to your case.

You know why I liked him? I talked to him about what he like to read. He mentioned John Krakauer. I asked "Into Thin Air"? Yep. That indicates to me an open minded and adventurous person. A non-conformist and critical thinker who admires bravery. The kind of guy you want fighting on your side in the jury room.

If he had said "Michael Chrichton," he never would have made the jury.