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Washington Lawyer

Legal Spectator: How to Meet Interesting People

From Washington Lawyer, September 2003

By Jacob A. Stein

Legal Spectator

We may meet interesting people in a bar, on a train, sitting on a park bench, or walking the dog. There is another way to meet interesting people—working as a comrade in arms defending a murder case.

In 1965 Dovey Roundtree, Jean Dwyer, and I each represented a defendant in such a case. The defendants were charged with shooting and killing a one-time friend of theirs. Although Dovey, Jean, and I were acquainted before the trial, each of us looked forward to working together at counsel table.

They both, despite the difficulties women had 35 years ago establishing a place at the trial bar, were successful and competent criminal lawyers. Each started out trying court-appointed criminal cases when there was no money to pay them. They put their talent on display when wit, optimism, and luck were much more important than a course in advanced criminal procedure. In time they attracted lots of paying clients.

Each had her own separate criminal practice. Each had a specialty within that practice. Dovey was the one to see in a murder case where self-defense was the defense. Jean was the one to see if you were charged with rape, especially the milder sort called date rape.

My client instructed me to enter an insanity defense. This meant that he would not take the stand. There is a platitude in the law that the defendant who asserts an insanity defense does not testify. Even when the defendant suffers from a serious mental disorder, he may appear sane on the witness stand. The key defense witness for my client was a psychiatrist.

We worked together on motions, trial strategy, legal issues, and jury selection. Among ourselves we were unguarded in what we said. What we said was protected by the most powerful and unassailable privilege known to the law—our right to defame the judge, the prosecutor, and the clients. In this case neither the judge nor the prosecutor inspired our defamatory skills. The judge was neutral, quiet, and decisive. The prosecutor, Joel Blackwell, had been an active criminal defense lawyer before he was appointed an assistant United States attorney. Once appointed, he closed the door on his defense counsel days. He was an aggressive but fair prosecutor. Jean and I knew him from his defense days. Dovey and he were good friends, but this did not deter Joel from pressing hard for a first-degree murder conviction.

The government built its case around an accomplice who had participated in the murder and who pled guilty to a lesser offense in order to get a break at the time of sentencing. The prosecutor surrounded the cooperating witness with corroboration at the key points. This did not deter Dovey and Jean. They raised legal issues, some strong, some weak.

Dovey’s and Jean’s styles were different. Dovey was not only a busy lawyer, she was a minister and a Sunday school teacher. She could get worked up against a witness who she thought or others might think was lying. Jean was calm, prepared, and relentless.

Jean went first in the cross of the accomplice and Dovey exploited what Jean turned up. Dovey added righteous indignation. She wished to make it plain that this cooperating witness was someone who would say anything the prosecutor wanted.

She did this by getting the witness to identify the first time he met with the prosecutor to tell the prosecutor the whole truth. Then the witness was asked to identify each of the eight successive meetings with the prosecutor to give the prosecutor a little more of the whole truth each time they met. The witness knew what the prosecutor wanted and that is what came from the witness stand.

At the end of each trial day, we remained in the courtroom to review what had happened and how we would deal with the next day’s witnesses. Despite the strength of the government’s case and the fact that we were all tired out, we found a way to extract some humor and some optimism from the judicial process.

The testimony of an accomplice, a cooperating witness, gets special treatment from the law during the court’s instruction. The court advised the jury that it should scrutinize the accomplice’s testimony with great care before accepting it as true, and such testimony should be considered with more caution than the testimony of other witnesses. Our closing arguments exploited the court’s instruction.

I still recall Joel’s rebuttal argument. It was good in all respects for the government and bad in all respects for our clients. Dovey whispered that the jury may bring in not only a guilty verdict but also a death penalty recommendation.

The jury did return a verdict of guilty as charged, but it reported that it could not reach a verdict concerning the death penalty. This shifted the issue to the judge. Dovey and Jean carried the day in urging the judge not to impose the death penalty.

For years after the trial, when the three of us happened to meet around the courthouse, the conversation eventually turned to the trial and Jean’s great cross and Dovey’s great closing. I, of course, said a few words on my own behalf concerning my cross-examination of the government’s psychiatric witness. All to no avail.

Jean closed out her career as a magistrate judge of the United States District Court. Dovey stayed with the rough and tumble. I have not seen or heard from them for many years. Dovey and Jean, if this note in a bottle reaches you up there or down here, please give me a call. You’ve got my number.

Jacob A. Stein can be reached by e-mail at [email protected].