The first day of trial is always nerve-racking. There is an initial jockeying for position between the prosecutor and the defense lawyer, and between the judge and the defense. This power struggle continues throughout the trial. The judge controls the courtroom, but the lawyer must carve out space in which to put forth his arguments. If he fails to achieve this, the dynamics of the courtroom will crush the defendant.
You walk into court with your stomach churning and adrenalin surging through your body. You have to control the wild forces, focus your energy and not give in to the fear that your mistakes will send your client to prison. The two most traumatic moments in a trial are at the beginning and at the end. At the end you and the defendant stand as the verdict is read and his fate decided. At the beginning, after voir dire (the questioning of the jury), the twelve actual jurors are accepted. At this precise instant, you realize you are stuck. The trial has begun. Everything you have prepared for has become real.
Steven and I looked at the twelve jurors. Eleven whites, one Latino, one under thirty, no one from the Fillmore. The one potential black juror had been dismissed by the prosecutor, John Milano. Milano was one of the two top criminal trial lawyers in the United States Attorney’s office. He was experienced, skilled, and had a killer instinct. Judge Weigel surveyed his courtroom and invited opening statements.
Our strategy was to communicate the black experience to the judge and jurors. First, we needed to reduce the overwhelming whiteness of the courtroom, the white judge, jurors, lawyers, FBI agent, U.S. marshals, bailiff, calendar clerk, law clerk, and court reporter. I obtained permission for the two black law students to sit at counsel table, since they were working on the case. And we also had the students from the Malcolm X School attend the daily court sessions. The students and their teachers filled half of the courtroom’s large seating capacity. As part of our strategy I ended my opening statement with these words: “Whether you find Steven Robinson guilty or not guilty, we hope that at the end of this trial you will have begun to understand the intensity and the profound nature of the black experience in America and Steven Robinsons reaction to that experience.”
After opening statements there were five segments to the trial. First, the witnesses from the bank and the police officers testified. This testimony was straightforward and not surprising, since we had admitted to the robbery in our opening statement. Our issue was not whether he had robbed the bank, but why he had done it.
Second, the two psychiatrists testified, one for the government and one for the defense. The psychiatrist called by the prosecution testified that Steven may have been in a “neurotic state of depression” but was not insane at the time of the crime. There were two flaws in his testimony. First, his definition of legal insanity was limited to psychoses. This was not the actual law, which was much broader. In 1971, the federal test of insanity was “a mental disease or defect which caused the person to not know the difference between right or wrong, or lack the substantial capacity to conform his conduct to law.” A “mental disease” was not restricted to a psychotic condition.
The psychiatrist also admitted, under cross-examination, that he had never read Black Rage. This emphasized his second mistake—his denial that it was necessary to take racial environmental factors into consideration when diagnosing Steven Robinson.
The psychiatrist called by the defense wasn’t much better. It seemed that he had not read all the reports and documents with which we had provided him. Though he had been articulate and confident in his office, we felt his presentation on the witness stand was weak (an observation confirmed by the jurors with whom we spoke after the trial).
Fortunately, our strategy did not rely on psychiatric testimony. This is a mistake many lawyers make: hoping the expertise of the psychiatrist will persuade the jurors. In fact, “expert witnesses” on each side usually cancel each other out. Also, the psychiatric testimony often paints the defendant as so crazy that the jury cannot identify with the defendant and does not want to find him or her not guilty.
Expert witnesses, by virtue of their expertise, are allowed to state their opinions instead of sticking to observable facts. For example, a psychiatrist can give his opinion as to whether a person is suffering from a mental illness, or an orthopedist can give her opinion as to the cause of a fractured leg. In our case, however, we relied more on “lay witnesses,” that is, people who had observed facts relevant to the issues in the case. These lay witnesses were the third segment of the case. We called the veterans’ affairs coordinator from the Bay Area Urban League, who testified about his attempts to get Steven a job. Although we did not attempt to prove the pervasive job discrimination in the Bay Area, the impact of his testimony underlined the existing racism. We then called Elaine, who testified to the family’s illnesses, how her husband wouldn’t let her apply for welfare, and how strange he had acted during the week before the robbery. The last witness was Mr. Judge from Sacred Heart Parish, who testified to providing a food order for the family and to Steven’s obvious need to be the main supporter of his wife and child. These witnesses took no more than half a day of testimony. Jurors get bored sitting in those chairs all day long. We did not want to lecture them about racism; we did not want to create a classroom atmosphere. White people know there is discrimination. We didn’t feel we had to hit them over the head with what they already knew in their hearts. The idea was to get them to look into their hearts.
The fourth and most important segment of the trial took place when Steven took the stand. Cases are often won or lost by the defendant’s own testimony. Too many times a lawyer takes the credit for winning a case, but blames the client if he loses.
There are two different theories on how to relate to a client. The prevailing theory was put forth succinctly by my trial practice teacher in law school at Berkeley: Never explain the case to the client, because one of two things will result. The client will understand you and wonder why he is paying you so much for something so simple. Or he won’t understand you and therefore will waste your valuable time asking questions. Our law collective rejected this elitism. We were committed to demystifying the law and dignifying the client. This required the full participation of the person we represented. Yes, it took more time. But it was rewarding to see clients in crisis able to overcome their fears and anxieties, to help clients educate themselves about how the legal system actually worked, and to engage with them as partners in a joint effort to achieve some measure of justice. It was also more effective than having a client who felt isolated, alienated, and completely at the mercy of forces beyond his or her comprehension and control. An empowered client can offer a different point of view from the lawyer’s, who is often limited by his professionalism. And although 90 percent of the clients’ suggestions are inappropriate or useless, the other 10 percent are often gems that help win the case.
In Steven’s case, once he was encouraged to participate in his own defense he began to play an active role. He agreed with or deferred to our judgment in almost all decisions. But he had two points he felt very strongly about. First, he refused to blame racism for his crime. Second, he would not say he was “insane” at the time of the robbery. He would not use that word. Fortunately, we agreed with him.
Our strategy was to argue that racism is a major factor in the equation that causes a person to strike out. A different strategy is to blame racism for one’s predicament. The former has the potential to open people’s eyes to the powerful impact of environment. But the latter points the finger at others for one’s failings and results in closing people’s eyes to social reality. We chose the course that retained Steven’s dignity and pride, and rejected the course that led to pity and victimization.
Steven took the stand as our last witness. In a typical bank robbery trial, the issue is whether or not the defendant in fact robbed the bank. He may have the defense of alibi. For example, “I was in the park with friends at the time of the crime.” So, the dispute is whether he was in the bank or in the park. The defendant’s mental state is not an issue, nor are the factors that shaped his behavior. Therefore, no testimony is allowed