Monday, January 08, 2007

You Can't Beat a Good Modus Operandi

By Tom Adler ©2006

Many a crook has been nailed by his distinctive modus operandi and Hot Car Arnold was no exception. Whenever a 1956 Chevrolet was reported stolen the police officer assigned to the case got up in the morning, shaved, had a donut and went to Hot Car Arnold’s house and arrested him. No need to read him his Miranda rights because Hot Car always confessed without needless formalities. No need for a search warrant because the missing car was always in his driveway. No need for a trial because Hot Car always pled guilty. His two biggest goals in life were to actually own a 1956 Chevrolet and to not cause anyone any trouble. With the exception of three felony convictions for grand theft auto his criminal record was spotless. In today’s justice system that record would probably have caused Hot Car to spend a good part of his life in solitary confinement. But his priors happened years ago during that strange period when a judge, rather than a prosecutor, determined what an appropriate punishment was. Given his excellent record and the fact that he never harmed the victim vehicles, Hot Car always got the reasonable punishment—one year in county jail. No harm no foul.

His days locked up were spent reading automobile classified ads for—yes, you guessed right—1956 Chevrolets. As soon as he was released he went back to his mother’s house and within two weeks was back in jail. Now you may ask why was he living with his mother. Well he had no job and no real opportunity to look for one since his avocation took up a great deal of his time, both in and out of custody. When he was out he had to spend days looking for a 56 Chevy which is not an easy thing to find. Then he would have to travel by bus, sometimes for several hours, to the crime scene since he didn’t have a car. Then of course there was the actual theft itself which took some time since he spent hours waiting to make sure no one was home. Kind of a reverse stakeout. Hot Car didn’t like trouble. Then, being a fastidious sort, he would immediately stop at the nearest self service car wash where he would spend hours detailing it inside and out making sure to put Armor All on the dashboard and tires and steam cleaning the engine. Then after his arrest there were consultations with his public defender who was always delighted to have a client who didn’t mind going to jail. Couple this with the endless waiting around for the judicial system to grind out the necessary paperwork and it becomes evident why he never had a job. There’s only so many hours in a day. Besides he was only 23 years old and with three felony convictions and no socially acceptable job where else was he to live? Adherents to the tough love credo would say his mother should have thrown him out long ago but he was a very pleasant and respectful young man who loved his mother dearly and she him. Love conquers all in spite of what some prosecutors would have you believe.

The crime that I represented him on was a new one for Hot Car. It took place in the jail where he had just been placed after his fourth arrest for stealing a 56 Chevy. The first time I visited him in the jail I was unaware of his prior record. I only had the police report of the new offense – a rather ugly affair-oral copulation with another inmate in the jail. The facts as stated in the police report were straightforward. Hot Car was a trustee in the jail and was observed by a deputy entering a holding cell where inmates are placed while waiting to be released. Since he closed the door after entering the cell a deputy became suspicious and went to the door and upon opening it saw, as he later testified, “Trustee Arnold’s penis was in the mouth of the other inmate”. End of story. End of case. Not quite.

Hot Car was waiting in the interview room when I arrived. He looked very young. He was short and rather thin with brown tousled hair and he was wearing a brown jumper with TRUSTEE stenciled on the back. I asked him to tell me what happened and the first thing out of his mouth was “Mr. Adler she was really good looking”. “She”, I responded “What the hell are you talking about; this is a men’s jail!” “I know but somehow this woman was put into the holding cell. I was the floor trustee and was assigned to do anything the deputies asked me to on that floor—sweeping up, running errands, stuff like that. So I’m doing my job and suddenly this tall beautiful woman dressed in this tight fitting

sweater, skirt and high heels comes walking down the hall with a deputy and just before he puts her in the cell she gives me this smile and I’m thinking I just went to heaven and died.” He continued,” So I waited about 15 minutes and when I thought nobody was watching I snuck into the cell and there she was—all alone”. At this point I stopped him and told him not to tell me anymore. This requires some explanation of attorney ethics which most normal people would probably describe as tortured. Bear with me on this.

Legal ethicists have an ongoing dispute as to whether a criminal defense attorney can put his client on the witness stand if he knows that the client is going to commit perjury. Generally speaking the arguments fall into three categories. The first is that you can’t put the defendant on the stand if you know he is going to commit perjury and if he insists on testifying you have to remove yourself from the case. The second is that you can put him on the stand and only ask him to state what happened and ask no further questions and in closing argument you can’t argue to the jury what he said. Both of these positions offended my sense of justice. I adhered to the position that my clients had the right to fabricate, mislead and lie their asses off in court—just like police officers. Equal justice under law. Fair is fair. No one else in the courtroom was going to go to jail. And if the DA couldn’t break down my client’s story while he was on the stand ---well, he should go back to cross examination school. Now this all sounds pretty good but putting it into practice was difficult for me since I have always been personally cursed with the concept of following the law except, of course, that anti-war demonstration in San Francisco in 1967 but that’s well beyond the statute of limitations. I digress.

When I started doing trial work the whole concept of client perjury caused me to lose sleep and so I devised a jurisprudentially tortured but pragmatic strategy of ignorance is bliss in cases like Hot Cars, where it was very clear what had happened at the crime scene. It went like this. The client didn’t tell me the facts constituting the crime. This then gave me the option of putting him on the witness stand and he could tell any cockeyed story that he wanted and I could question him about what happened. I just had to figure out a way to argue his version to the jury. I told you it was tortured but no more so than prosecutors playing fast and loose with their obligation to see that justice is done. This ethical thing is giving me bad indigression. Back to Hot Car.

I noticed while I interviewed Hot Car that as deputies passed by, several of them greeted him with a “Hey Hot Car” or a similar friendly acknowledgement. This was not the norm for the deputies and caused me to think how in the hell is this guy still a trustee after being charged with a registerable sex offense in the jail? Is trust no longer a part of being a trustee? As I later found out, Hot Car had been in jail for so long on so many occasions that the deputies had grown to like him and after discovering the facts of the oral copulation charge, as I later learned them, they sympathized with his plight and let him remain a trustee.

So who was the mystery inmate in the holding cell with the big mouth that started all this? Her/his name was Edgar/Janice; a rather confused multisexer. Edgarjanice was no ordinary transvestite. She was a knock down, drop dead gorgeous creature who made her living rolling over on her heels for a fee; thus her placement in the women’s jail. After being booked in her full sweater and skirt regalia she was strip searched, at which time some observant female deputy discovered Edgarjanice’s rather large tool which he lugged around as a necessity of his trade. This resulted in an immediate transfer to the men’s jail. Parenthetically, I was later told that the strip search deputy filed for divorce several months after Edgarjanice’s released. I make no judgments since I live in California.

Working girls aren’t held long in the jail. They have to get back to work. Being engaged in the world’s oldest profession entails having some pride in one’s work ethic and jailers as regular clients understand this. When Edgarjanice hit the men’s jail the deputies left her in her street clothes in the holding cell until they could finish the paper work for her release. Being an industrious sort she thought she could pick up a few extra bucks while she waited to get back on the streets and thus the goo goo eyes at Hot Car.

The sordid details were unnecessary to my task-it was plea bargain time. There wasn’t any legal defense and the whole thing was, from a hormonal perspective, understandable. Young kid locked up without female companionship presented with an opportunity to do the wild thing with a gorgeous—whatever.

The thing I hadn’t counted on as I walked into the settlement conference with the judge a few weeks later was Steve, whose last name is omitted to protect the guilty, the innocent and everybody else. Steve was one of the most experienced prosecutors in the office. Well spoken, smart, good looking, and always impeccably dressed, he was an opponent to take seriously. What I never understood is why he had been assigned such a low level case. But I was glad because although I didn’t know him he certainly would evaluate the case reasonably and we could all get on with more serious matters. As usual I had misjudged a prosecutor’s intentions. Hope springs eternal. Steve was incensed about this disgusting act which took place in a public institution by a thrice convicted felon, etc, etc, etc. He demanded a felony plea to a registerable sex offense with prison time. I had only tried one felony case and wasn’t particularly interested in being demolished in a case where I had no defense and a much more experienced opponent but I had grown to like Hot Car and decided that if he was going to go to prison in this case it was not because Steve had decided his fate. Let it be a jury. And so it was a few months later that I sat in court with Hot Car asking jurors how they felt about fellatio between members of the same sex or in the alternative, members of the opposite sex or for that matter of any other sex they could think of. The judge tapped a pencil nervously on his desk,

I lay awake at night putting my limited knowledge of jury work to the test. Bad facts and a good prosecutor meant I had to pull out all the stops---go for the gusto. I finally came up with a strategy for trial which was a bit unorthodox but then so was I. I would prove to the jury that Hot Car was a car thief. So far, so good. Then I would make him into a likeable, even loveable kid who would be like any juror’s son. OK….OK then what? Well then I would appeal to the core of the juror’s Ids-where they really lived but didn’t even know it—where their base yearnings existed. Yes, their sexual urge to mate with an unknown object of sexual desire. Well I really didn’t know if that was true but it was a theory…and I was in a jam. So that was the basic strategy and you’ll notice that I hadn’t come up with a way to disprove that the oral copulation had occurred. In the law we call that an imperfect defense.

The jury was selected and Hot Car sat next to me at the counsel table in a jail uniform which was too big for him, making him look like a waif with a problem. Perfect. The DA was smug--he’d knock this out before lunch and go have a manicure. His first and only witness was the deputy who had witnessed the sordid affair. Pointing to Hot Car the deputy said “Yes that is the person who had his penis in Edgar’s(using the gender name which best suited the prosecutors case) mouth as I entered the cell” Steve turned on his $600 alligator tasseled shoes and said, ”Your witness” to no one in particular.

My first question was “Had you ever seen my client before this alleged incident?” “Yes I have” he responded. Steve looked at me like I was a dummy knowing that Hot Car’s prior record was inadmissible unless I “opened the door” by somehow bringing up the issue myself. But Steve was even more surprised when I asked the next question, “How many times?” and he responded “Lots”. The jurors looked at each other. “Does he have a nickname?” Stifling a grin he replied “Yes we call him Hot Car”. I forged ahead, “And why is that?” “Because he steals cars” he replied in a voice implying that he thought everyone knew about Hot Car. The next question I asked caused Steve to take a sharp intake of air like he had been hit in the solar plexus. “To your knowledge how many felony convictions does Hot Car have?” “Three” he responded. Steve’s expression changed from incredulity to suspicion as he pondered whether this rookie lawyer was possibly that stupid or maybe he was pulling a fast one. Why tell the jury about your client’s past record when it wouldn’t have been admissible?

“And what were the three felony convictions for” I asked staring directly at the jurors. “Grand theft auto” the deputy replied. “Any particular type of car?” The deputy smiled “Yeah……………56 Chevy’s….that’s his thing-56 Chevy’s”. Some of the jurors chuckled. “Now tell me've had experience with Hot Car on his prior visits to the jail, right?’ “Right” he responded. “Other than the present unproven allegations….. to your knowledge has he ever been involved in any kind of sex crime either in or out of custody. “Not to my knowledge” he replied.

Now it was time to bring in my star witness who was being hidden from view down the hallway by my investigator, time to get into the dark reaches of the jurors Id’s.

“I call Edgarjanice” I loudly announced. The bailiff went out in the hall and in a loud voice bleated “Edgarjanice…....Edgarjanice courtroom 5 please!! Within two minutes she entered the courtroom in a magnificent display of confused sexuality and looking very much like a brothel queen. She was wearing the same clothes she had on at the time of the incident—just like my subpoena had required her to do. . Steve hadn’t subpoenaed her to the trial since he thought he didn’t need her testimony and she would have taken the 5th anyway. As she stood in the back of the courtroom I asked the deputy if the person standing in the rear of the courtroom was Edgarjanice, the person who was the fellator. “That’s her” he replied. “Thank you, I have no further questions”, I quickly said and right on cue my investigator hustled Edgarjanice out the door and into legal obscurity. She wasn’t subject to being cross examined because she hadn’t testified but the jurors were able to see what forces had been working on poor Hot Car as he sat forlornly in the jail.

I thanked the deputy for his testimony and Steve, still confident, and waiting to pounce on Hot Car if he testified rose to his feet and stated “The people rest”.

I then called two deputies to the stand and asked both of them the same questions. “To your knowledge has Hot Car ever been involved in any other type of crime….ever……anywhere……….except stealing 1956 Chevrolets?” The answer from both was “No”. I then asked them about his reputation for honesty and they both conceded that it was good and that they always chose him to be a trustee because he was a likeable and trustworthy inmate. I avoided the penis issue and rested my case.

The jury deliberated for about a day and a note came out that they were hung. The judge called them all in and after questioning them individually declared a mistrial. As they were excused they filed by the counsel table. A few of the sterner types looked unhappy but several of them smiled at Hot Car. The last juror to file out was a gray haired lady in her 60’s and as she walked by she bent down and looking directly at Hot Car said “Now don’t do that anymore” and patted him on the shoulder. Hot Car hung his head in a profound display of embarrassment. She then looked at me and said “And you make sure he tows the line young man”. Yes mam, I replied.

It just goes to show………when things are looking really bad there’s nothing like a good modus operandi.

©2006 Tom Adler


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