'Fire and Ice'

Last month I was the closing speaker at the criminal law seminar sponsored by the National Criminal Defense Lawyer's Association. The program was held in Aspen, Colorado.

Despite our recent travails, I committed to participate in this program a year ago. So, keeping in mind Frost's poem "Fire and Ice," Barbara and I decided to go even though we do not ski. Frost's poem is short and because of recent events, it bears repeating:

FIRE AND ICE

Some say the world will end in fire,

Some say in ice,

From what I've tasted of desire

I hold with those who favor fire,

But if I had to perish twice,

I think I know enough of hate

To know that for destruction ice

Is also great,

And would suffice.

I, along with thousands of others, can relate to the fire theme. Like all his poems Frost's seeming simplicity masks complex themes and paradox. Critics have argued that the poem means that unchecked human desires and hatred result in destruction. To be more specific, fire represents passionate desire. Tell that to the thousands of us who have lost our homes and possessions to fire. Of course, this did not end our world, but it drastically changed it. I am not ready to say for the better. But is that so just because the critics say so? I have always been a huge fan of passionate desire. And even though lately I am not a big fan of fire, isn't fire supposed to be responsible for the development of civilization?  Who wants to eat a raw steak? 

So, we journeyed from fire to ice where I gave my talk. Criminal defense attorneys have one of the most stressful and difficult practices. Statistically, it is rare to gain an acquittal. In California, when the three strikes law and other draconian laws were enacted, I predicted that decades later there would be a change. At the time, I mused I would not be around to decide those cases. Lesson: Never predict the future. Recently in California, criminal defense lawyers are gaining victories they had not seen before. Not guilty verdicts in criminal cases average .02% to .04%, depending on what study you rely on. Most cases result in plea negotiations. In California, only around 61% of adult felony arrests even lead to a conviction. A remarkably low rate of 2% of criminal cases go to trial. Could have fooled me.

My research took me to a case written by Justice Kremer in the Fourth District, People v. Johnson (1998) 62 Cal.App.4^th 608. Kremer's enlightening opinion concerns the ethical responsibilities of criminal defense attorneys. The question posed was the responsibility of counsel to put a defendant on the stand who counsel knows is lying. Counsel told the court he had an ethical conflict and did not want to put his client on the stand, but the client still wanted to testify. The trial court kept counsel on the case but did not allow the defendant to testify. The Court of Appeal said this was error. Better to let defendant testify in a narrative fashion. This achieves the balance between the constitutional right to testify and counsel's ethical duty not to participate in perjury. Nevertheless, in this particular case the error was harmless in view of the overwhelming evidence of the defendant's guilt.

The Johnson court then traced the history of today's right of counsel in criminal cases from early common law to today. Early common law prevented the accused and interested parties from presenting sworn testimony. This practice continued into the 19th century. As one commentator wrote in the 1860's: "[T]he prisoner could never be a real witness; it is not in human nature to speak the truth under such a pressure as would be brought to bear on the prisoner, and it is not a light thing to institute a system which would almost enforce perjury on every occasion. It is a mockery to swear a man to speak the truth who is certain to disregard it . . . ."  (Stephen, "A General View of the Criminal Law of England," (1863) pp. 201-202.)

The Johnson court then told us it was not until the 20^th century that our Supreme Court in Rock v. Arkansas (1987) 483 U.S. 44 wrote that the right to counsel "is one of the rights that '[is] essential to due process of law in a fair adversary process'" (id. at p. 51) and was protected by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution (id. at pp. 51-53). Yes, the 20^th century.

The professional rules of conduct in California and elsewhere prohibit attorneys from knowingly engaging in colluding with the client to present perjured testimony. The Johnson court's solution seemed a reasonable compromise.

I recall many decades ago when I was a judge in a bygone era on the Los Angeles Municipal Court. I was presiding over a petty theft case. The prosecutor called to the stand an employee at a hardware store who testified that the defendant walked out of the store with a bag of items he did not pay for. Defendant was detained and arrested. The People rested. The defense attorney then informed the court and me that the defendant wished to testify against counsel's advice that he not do so. The attorney then told me he did not wish to participate in this part of the case.

The defendant then testified in a narrative fashion. He told the court and me again that he had paid for the items allegedly stolen and produced a receipt dated the day of the arrest showing that all the items allegedly stolen had been purchased. Need I continue? On cross, the prosecutor asked the defendant in an insouciant tone, "You didn't go back into the store after you bailed out and purchased all the items you had taken earlier in the day, did you?"  You guessed it. The manager then testified that the receipts were time-stamped. Guilty. The Johnson court would have given me high-fives.

Speaking of Frost, I gave program participants the poem "The Road Not Taken." I have included that poem in past columns ad nauseum. So, I figured... let's do it again. Here it is:

THE ROAD NOT TAKEN

Two roads diverged in a yellow wood,

And sorry I could not travel both

And be one traveler, long I stood

And looked down one as far as I could

To where it bent in the undergrowth;

Then took the other, as just as fair,

And having perhaps the better claim,

Because it was grassy and wanted wear;

Though as for that the passing there

Had worn them really about the same,

And both that morning equally lay

In leaves no step had trodden black.

Oh, I kept the first for another day!

Yet knowing how way leads on to way,

I doubted if I should ever come back.

I shall be telling this with a sigh

Somewhere ages and ages hence:

Two roads diverged in a wood, and I--

I took the one less traveled by,

And that has made all the difference.

I asked the criminal defense attorneys to argue their client took the road less traveled. I played the role of the judge. They did not prove to me that was the case beyond a reasonable doubt.

We then discussed an even more difficult case. Assume you are a criminal defense lawyer, or any lawyer for that matter. A client you represented on a previous matter comes into your office with a question concerning the previous case. The client offhandedly tells you that the person in the news who had been convicted of murder and was about to be sentenced to die in three days did not commit the murder. The client admits he was the one who committed the murder. What would you do?