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New York Lawyer | December 2, 2009

The 9th Annual NYLJ Fiction Writing Contest

A Clear Case

I learned later that the guests - as Mr. Stanley, my law mentor, referred to the prisoners in the Virginia regional jail - were not allowed to wear real shoes. The administration had issued all the inmates oddly effeminate plastic slippers that did not encourage running. I could not picture the hulking, unshaven man before me running for any reason, except maybe to flee trouble, and it was difficult to imagine that Darrel Johnson would want to avoid any fight, even one with a police officer. The height of an overgrown NBA player, he filled the door jamb of the conference room and would easily have urged scales over 275, maybe even 300 pounds. So it was unusual, I thought at the time, if not perplexing, that such a man would wear slippers.

It was my first time in jail. Though I had been studying law for several months, my books had neglected these matters. As soon as he swung open the door, Mr. Johnson's small hazel eyes, set in a large ruddy face, fixed on mine - and not without curiosity. Perhaps he could tell that it was my first day with a prisoner. Perhaps he was practicing his performance for the jury. Or perhaps this show was merely an unconscious attempt at self-preservation, but that seemed unlikely: Johnson appeared to be a deliberate fellow. He strode evenly across the cramped, cinderblock room, slid out the purple plastic chair across from Mr. Stanley and me, and sat down as if he were parking an oil tanker between fires. Then, affecting a formality that suggested he was doing us a favor, he folded his arms on the table.

This production took several minutes, or so it felt to me, and not once did Mr. Johnson slouch, stare at the ground, shuffle his hands nervously, or give any other sign that might indicate humility or shame. To the contrary, he seemed to enjoy his center-stage booking, or perhaps he savored these moments away from the daily routine of his cell, which schedule and company I could only imagine. Facing attempted murder, possession of a firearm by a felon, and a slew of less serious charges, Mr. Johnson had to find some way to maintain control.

I can't imagine gathering such composure. I couldn't even get out of bed for several days after Vanessa left me. That was many months ago, and yet the thought of her still makes my face quiver. Mr. Johnson was steadfast. Maybe life in prison would be tolerable, compared to an uncertain life without Vanessa.

"Good morning, Mr. Johnson," said Mr. Stanley. "Let me introduce you to Mr. Kendrick, my law clerk." I readied my hand in case Mr. Johnson expected a shake, but his arms remained folded neatly in front of him. The sleeves of his orange jumpsuit were rolled up to reveal a faded, mostly green and maroon tattoo of a dragon, which extended down his forearm to what I gathered was his prisoner's bracelet. It resembled a hospital bracelet, but it was much better quality - thick, clear plastic, covered with writing and Mr. Johnson's mug shot. He nodded to me, almost imperceptibly, and then stared at Mr. Stanley.

"You're looking good," Mr. Stanley said. "You look like you've lost some weight." Mr. Stanley paused for a response, which did not come, and then turned to a file opened on the brown Formica table in front of him. He brushed back his tie, which had inched forward into the words, and adjusted his wire-rimmed glasses. As I sat there inspecting my surroundings, nervously moving my pen across my notepad, Mr. Johnson continued to stare at Mr. Stanley. The stuffy space was sparse to say the least, white-washed, cold, and empty except for the uncomfortable plastic chairs and the Formica table. And it struck me then that we were locked within its cinderblock walls beside a potential murderer, albeit a polite one so far. An emergency button poked out from the wall, but it was closer to Mr. Johnson than it was to us.

"Your buddy, Larry, is now saying that you were both at the 7-Eleven when the shooting occurred. He says, of course, that he was just along for the ride and stayed in the car." Mr. Stanley met our client's stare. Mr. Johnson didn't twitch. I searched my mind to fill in the context. I had read the file closely before we came to the jail, but the drive hadn't given us time to discuss the case other than cursorily, and the criminal arena was entirely new to me. Nevertheless, and unfortunately, the thought of someone's losing something for a long time - in Mr. Johnson's case, his liberty - was not new.

I was forced to reimagine my life when Vanessa left me nearly six months ago. Creating a family (Vanessa, me, and a small kid or two) no longer seemed imminent or probable. So after finding a mentor who agreed to supervise the legal apprenticeship, I was both thrilled and relieved to be accepted into Virginia's law reading program. Just a few months after Vanessa's sudden departure clouded my future, I felt a brief resurgence of clarity.

I immersed myself in casebooks and legal encyclopedias, and quickly learned the vocabulary of my first two courses, Basic Legal Skills and Property: "stare decisis," "divorce a vinculo matrimonii," "future interests," tumbled out early. Somehow even "buggery" came up. I trained my mind to think less like a carpenter, which is what I did after college, and more like a lawyer. Mr. Stanley now believed me ready to view the trenches, so here I was: My introduction to criminal procedure would be an attempted homicide in a court-appointed case.

"Apparently," Mr. Stanley continued, "Larry says that you were the one who pulled the trigger."

I remembered reading about a co-defendant "Larry" in the file. Our client and this Larry were picked up several hours after a 7-Eleven convenience store was robbed, and the clerk had been shot twice, once in the arm and once in the side. Fortunately, the guy survived. Someone in the parking lot had identified a red El Camino leaving the scene with two large white men, and there weren't many red El Caminos in our town. Mr. Johnson, a convicted felon, owned one. To make matters worse for him, the security camera caught a picture of the hooded perpetrator from behind, and apparently the body type resembled Mr. Johnson's - I hadn't seen the video, so I couldn't speak to the similarity, but I did remember from the file (how could I forget this?) that when the policeman showed up at his home, Mr. Johnson and Larry were sitting on the porch drinking Miller High Life beer and eating Chocolate Mushroom Clouds, a snack cake that had been on display near the 7-Eleven cash register.

"I wasn't there," Mr. Johnson said.

"Why do you think your buddy would turn on you?" Mr. Stanley asked.

"Maybe somebody got to him," Mr. Johnson said.

This was not reasoning that I entirely understood (what would incite an innocent man, as Mr. Johnson claimed both he and Larry were, to finger his buddy?), but it clearly made sense to Mr. Johnson. Feeling awkward, I scribbled on my pad, "Larry - someone got to him." The note was barely legible.

"They're just trying to trap me with my car," Mr. Johnson continued. "King's probably afraid they'll trap him, too." This made sense to me. I gathered that "they" were the policemen, and "King" was "Larry." Mr. Johnson believed that the policemen wanted to convict someone, and they didn't really care who it was. Since he had little credibility as a convicted felon - and since he did own an El Camino - he was an easy target. Larry understood all of this, too (the reasoning went), and he didn't want to take the heavier charges. I realized that my implicit trust in the justice system had been naïve: Who knew? Stranger things have happened. Perhaps Mr. Johnson was right. I didn't know.

"Did you have any beef with Larry?" Mr. Stanley asked. I looked over at my mentor, who several hours ago had been quizzing me on John Locke, about "Shelley's Case" and the "Rule Against Perpetuities." Now he was talking about a "beef." I was impressed.

"No," Mr. Johnson, "And I told you I wasn't there. We were at home all night on the porch. You know, drinking beer."

"Can anyone corroborate that?"

"My mama can." Mr. Johnson hadn't changed his demeanor; he was still certain and composed, still looking directly at Mr. Stanley. In the brief silence that followed, I wasn't sure what else to do, so I scrawled on my pad again. "Mother, witness."

"She was drinking beer with you?" Mr. Stanley asked.

"No," Mr. Johnson said. "But she was inside the whole time."

"You live with your mom?"

"Yeah," Mr. Johnson responded.

He did not seem to be bothered by the question, though he was at least in his mid-thirties. Vanessa and I had moved out of our parents' homes immediately after college (though we didn't move in together; she was incapable of openly rebuffing her conservative parents). After all, moving out of the parental home after college was the American way, or such was my experience. Most of the younger adults I knew would have been embarrassed, at least minimally, by a confession such as Mr. Johnson's. They would have hurried to add an excuse such as, "it's just temporary," or "she's sick and I'm taking care of her," or something, but Mr. Johnson needed no justification. His America was a different America from mine, one I knew nothing about, one that intersected mine, perhaps, only at convenience stores, gas stations and courthouses.

I wondered how and if this new realization could relate to "labor theory" and "externalities." I wondered whether Vanessa had simply belonged to another world I could not understand.

"What's your mama's number?" Mr. Stanley asked, and his use of the word "mama" sounded genuine, not the least bit affected. Again, I was impressed.

"Okay," Mr. Stanley said after Mr. Johnson reeled off the numbers, "But using your mother as your only witness is not exactly a great defense. Over the next few days, think about what else you might have done, someone else you might have seen - "

"I wasn't at that 7-Eleven," Mr. Johnson said again, raising his voice this time. His arms didn't unfold, but the muscles tightened. He looked at me for the first time since beginning the interview.

"I didn't do it," he said to me. I believed him. Mr. Stanley turned another sheet in the file.


"Reading law," though still possible in Virginia, is so atypical that I often had to describe the procedure even to Virginia attorneys. Sometimes it was easier to call myself simply "a law clerk," and let them assume I was a law student at the nearby school or a paralegal, but I became friendly with a number of people in the system, including bailiffs and other clerks, and we invariably ended up discussing what I was doing. I described the process with terms like "apprenticeship," or "third-year law practice," "or internship," but my preferred explanation was that reading law was the "traditional method," the way that Thomas Jefferson did it. This description was true, of course, but it felt partly tongue-in-cheek, too. The claim incited a feeling similar to my sensation, several years before, when I explained to Vanessa's mother: "I'm working as a carpenter because it's rewarding. It's what Jesus did."

I think the Jesus explanation had convinced her that I passed muster, that I was not wasting my life. But it was always hard to tell whether she was satisfied or not. Vanessa had spent years trying to please her, and it never seemed to be enough. In retrospect, I think Vanessa's mother was on to something, though not for the right reasons: I was, in fact, wasting my life, focused as I was on her daughter. If Vanessa and I were still together, I might have been strolling idly through a Baby Gap instead of sitting in a prison conference room that day. Yet I had a new focus now, something important: A man's liberty was at stake. Mr. Stanley told me that sometimes the prisoners didn't even get to go outside. Justice, as I liked to think of it, was at stake.

I began by investigating the El Caminos, which was easy. After all, we simply needed to prove that other El Caminos could have been at the scene of the crime. The case against Mr. Johnson was overwhelmingly circumstantial: First, the victim could not identify our client as the assailant (the victim had tried to make an identification in a lineup, and apparently he had been too traumatized to be sure). That was ball one for the defense.

Second, the video, which I viewed several times at the Commonwealth's Attorney's office, showed only a large man with a build similar to Mr. Johnson's - the gloves and the hood even prevented determining the assailant's skin color. I found five men with the same physique and took pictures of them, hooded, to compare to the video. Ball two.

Third, the snack cake could be explained away. Just because they sell Chocolate Mushroom Clouds at 7-Eleven doesn't mean that Mr. Johnson got his snack cakes during a robbery; they can be bought all over town. Why doesn't he have a receipt? Who keeps a receipt for a snack cake? I even cued a routine from the comic, Mitch Hedberg, who ridicules a receipt for a donut. "What?" he asks, "Am I supposed to keep the receipt, so as to prove to some skeptical friend that I bought donut? I'll just file it here, under 'D' for donut." Mr. Stanley thought that was funny. So would a jury. Ball three.

Fourth, the only hard evidence against Mr. Johnson was his friend's testimony, and his friend, also a convicted felon, was impeachable, especially since one of his convictions was for perjury. Who knows why Larry would turn against Mr. Johnson, but that fact was: A reasonable doubt remained. Ball four. This should be a clear walk.

My other research supported our case. I ran from one location to another, the scene of the crime, the Department of Motor Vehicles, the courthouse. I found that six other red El Caminos were housed in the surrounding area (our city and the five nearby cities and counties). Two of those six were owned by convicted felons - a stunning percentage, I know, and perhaps worth more research in the future, but now certainly a help to our case. I had always liked El Caminos, actually; it made me wonder whether something was wrong with me. A car and a truck, all at once. Maybe this was a part of Mr. Johnson's America I understood.

Mr. Stanley was right there with me. He helped me get the information we needed, and he called and met with the mother, who corroborated her son's story. She said she never liked that guy Larry anyway. She wouldn't come off as the best witness, however, because, Mr. Stanley said, "Her certainty that Mr. Johnson was home was particularly eager - perhaps too eager - and the jury would probably dismiss her as the defendant's mother."

At any rate, it seemed to me better than nothing. A few weeks later, armed with our arguments and a number of strategies to raise reasonable doubt, we went back to see Mr. Johnson. I hadn't thought about Vanessa the entire time - well, okay, maybe a fleeting thought here and there, but that was it. Mr. Johnson was now the one on my mind. He had his whole life to lose. Suddenly, my youthful heartbreak didn't seem so significant.


Even at its most efficient, the course of hallways and locking and unlocking doors took several minutes to navigate, and our client must have had an easier path because when we finally reached the heart of the jail, Mr. Johnson waited for us in the cinderblock conference room. Or maybe it was not his route as much as his impatience; perhaps he had hurried, eager to hear the results of our investigation. That I could understand, though it seemed out of character for the Mr. Johnson I had met before. Still, though I hadn't spoken during our last meeting, I was eager to tell him what we had discovered, or, rather, what we had organized for a defense.

I lost some of my enthusiasm when I actually saw him, or, more accurately, I lost some of my fearlessness. He was still unshaven, still hulking, still besmirched with tattoos that may or may not have been tied to gang-life, but I already knew all that, so I wasn't sure why I lost my breath. It might have been the way he looked at me, the stare that sliced me like before, but I don't think so. I think that his composure threw me off balance. Even after all those hours that he could have spent in worry or contemplation, Mr. Johnson was as unfazed and unmoved as he had been earlier. I wondered whether I might understand it one day - but at that point I couldn't begin to comprehend how a man facing forty years in prison could seem more untroubled than his lawyer.

Mr. Stanley and I sat down across from him, this time on the side of the table with the emergency button - only because Mr. Johnson had chosen the other side. I don't think Mr. Stanley thought much about that button.

"You remember Mr. Kendrick," Mr. Stanley said and waved his hand towards me. Mr. Johnson looked in my direction and mumbled something unintelligible. His sleeves were rolled up again, and the top several buttons of his jumpsuit were unattached, revealing chest hair and signs of other tattoos.

"Mr. Kendrick is going to tell you what we've found out."

I swallowed hard and felt my chest seize with an edge of anxiety; I did not know that I would be making a presentation, but I guessed that trial by fire was not a bad method - like ripping off a Band-Aid.

"Okay," I said, and that first word brought me back to myself. After all, I had wanted to talk, and I was a messenger bearing mostly good news.

I began by explaining our interaction with his mother - a very nice lady, I added - that we could use her as a witness despite the problems.

"What problems?" he asked, softly but coolly, as if daring me to answer. I looked to Mr. Stanley, but he was looking at Mr. Johnson, not me, and not contemplating speech.

"She's your mother," I said. "She's not as credible as some other witness might be." I paused. Mr. Johnson was waiting for more.

"The jury might think she's lying for her son, which many mothers would do." I added this last part as a hedge, and it seemed to work. He nodded as if he understood now, and I went on, gaining confidence. I told him about the unreliability of the video, the unreliability of Larry, about all the other El Caminos, all the other snack cakes. I spoke about reasonable doubt. And all this time, as I talked, Mr. Johnson kept his arms folded and stared at me with his small hazel eyes like arrows. Mr. Stanley did little except fumble with papers or take notes. Occasionally he interjected something, but, for the most part, I was the one filling the empty, stale air of the conference room with words.

When I was finished, a heavy silence engulfed the space and seemed to persist forever, even though it couldn't have been more than ten or fifteen seconds. Finally, breaking the silence, I asked Mr. Johnson if he had any questions.

He shook his head. He didn't.

"Do you have anything you want to tell us?" Mr. Stanley asked.

"Actually, I do have a question," Mr. Johnson said. "What do you think you could get me for a plea?"

To this day, I wonder, now after I've taken the bar, become a licensed attorney, and practiced successfully and enjoyably for several years, whether the surprise showed on my face as conspicuously as I felt it inside. But I do know and remember that whether or not Mr. Stanley was surprised, he certainly didn't show it. He didn't even flinch.

"If you admit you had the gun, you have a mandatory sentence since you're a felon."

"It wasn't me," Mr. Johnson said. "It was Larry who shot him. I was in the car."


As we walked to Mr. Stanley's Honda Accord outside, I realized that it had grown colder, which made me think of Vanessa and her mom again - not because they were extraordinarily cold people, but because they both loved Christmas, and not in a good way. They liked red Rudolph sweaters, gaudy decorations, too much nutmeg and cinnamon and, most of all, presents. I imagine that if I had decided to become a lawyer when we were still together, Vanessa's mother would have been ecstatic. Which was perhaps one of the reasons I didn't do it - because I didn't want praise from people like her. She would have been relieved about my decision, not because I was trying to help people like Mr. Johnson navigate a system that was foreign and incomprehensible to them, but because she thought my socially-acceptable job would enable me to buy her daughter any number of Christmas presents she wanted.

But maybe I'm being too judgmental. Maybe I don't understand Vanessa's world, clouded, in my opinion, with garments and babies, and maybe that was always the problem. All I know is that in my world, if I have to choose between following Jesus as a carpenter or Thomas Jefferson as a lawyer - or, perhaps more fittingly, another law-reader, Clarence Darrow - it's an easy choice.

"Did you believe Mr. Johnson the first time?" I asked Mr. Stanley. We exited the parking lot and turned onto the highway in his car. His eyes scanned side to side on the highway; he adjusted his mirror, and then gazed straight ahead. As I waited for a response, I glanced out the window at the sky, which was ice-blue and clear. Knowing that some of the inmates didn't see it for more than fifteen minutes a day, or even at all, I felt particularly grateful.

"Sometimes they didn't do it," he said when we arrived at the stoplight at the bottom of a steep hill. "And you can almost never know for certain." He flipped on the radio, and news of disasters sprawled into the air. Somewhere, forty-six people were dead from a suicide bomb. The healthcare bill was not going to pass. Another congressman was caught with a mistress, and his wife was acting surprised. Their kids would be mortified, one day. And now, for me, creating a family no longer seemed an end in itself, Vanessa or not. A number of other tasks beckoned.

"But it doesn't matter whether they did it or not. At least, it doesn't change our job," he said.

The light turned green, and we chugged forward, up the hill into the clear blue.

"So," I asked, "What next?"

 
 
 
 
 
 

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