PRIVILEGE
By Ruth Hill Bro

New York Lawyer
November 29, 2006

Sunday was winding down when Jim Prescott got Mike's call. Jim had just returned from a week at his vacation home in Martha's Vineyard when his cell phone rang. Duty calls, he thought, as he slowly walked down the red-brick street past the six houses that separated their Kenilworth homes. Yet between the moist, hot air and the cicadas' low humming, he felt his energy for this meeting draining away. He reached for the brass ring on the rosewood door and knocked four times in rapid succession.

A wall of cold air hit him as Mike opened the door. They shook hands, then walked without talking to Mike's study, which was sandwiched between the living room and family room - the only room with no view, no windows of any kind. Mike called it his inner sanctum, where secrets could be meticulously examined and then carefully hidden away.

It was in this room that Mike had devised his strategy for every one of his criminal defense cases. His unbroken string of victories was legendary. He'd won cases that most lawyers thought were guaranteed losers. If Mike Goodman agreed to take your case, you knew you'd be drawing the "get out of jail free" card. You also knew that you'd pay heavily for that privilege: mortgage your home, clear out your bank accounts, borrow from the devil himself if you had to - that was the going price for salvation. The press described Goodman as the champion of the underdog, the friend of the vilified, the help of the helpless. Attorneys called him a lawyer's lawyer and said that if they were ever unfortunate enough to need a defense attorney, they could not deliver themselves into better hands than Goodman's. But now it was Mike who needed defending, and for that he turned to his friend and law partner.

They sat in leather chairs across from each other, a hand-carved, ivory chessboard between them, as they had hundreds of other times over the years. As usual, Mike poured himself some cognac, but tonight his friend abstained.

"So, tell me what happened," Jim said as he pulled out his leather portfolio and Mont Blanc pen. Mike stared, transfixed, at the liquid swirling in the snifter he held in his left hand, as if the answer to the question resided in that glass. Mike inhaled deeply, lost briefly in the bouquet.

"Jameson's father-in-law just hauled off and punched me." Mike had called Jim on Friday to tell him about the Jameson victory. Mike's client was a businessman who'd been accused of killing his ex-wife in a fit of jealousy. Jameson's fingerprints were on a knife with the victim's blood on it, a knife that was crammed into the bottom drawer of his own linen closet, and he had argued with the victim just hours before the body was found. Almost any other attorney would have pled that one out, but not Mike. He got most of the evidence thrown out because of an improper search warrant - fruit of the poisonous tree - and raised the spectre of a police frame-up; the jury bought it and the client walked. The papers gave Goodman all the credit, and so, apparently, did the victim's father. "I'd just returned home from church, and that S.O.B. was waiting for me: six feet, 250 pounds. He lunged at me, snarling, 'You like to play God, don't you? You lawyers destroy people's lives and get paid to do it. Well, prepare to meet your maker!'"

"That's quite a shiner he gave you. I hear he looks a damn sight worse."

Mike winced. "Survival instinct, I guess. I don't know what came over me, but I just started hitting, until the next thing I knew, he was out cold and two cops were pulling me off of him."

"You almost killed him."

"Well, let's just say I never do anything halfway."

"I guess he didn't know that your fancy footwork and mean left hook aren't just reserved for the courtroom," his partner said, smiling. Mike had been an amateur boxing champion back in college, and though he'd given up fighting, he still did the rigorous workouts and kept a punching bag in his basement to "work out his aggression," as he put it.

"Yeah, I have hidden talents."

"But I don't need to tell you, Mike, that if you'd shown a little self-restraint, they wouldn't have charged you with assault."

"I know, I know. Something just snapped. I don't know how else to explain it. I mean, he had the gall to pronounce judgment on me. Suddenly, I was face-to-face with all those years of harassing phone calls, threatening letters, glares from victims' families. And with each blow, I felt another year slip away."

Jim knew exactly what his friend was talking about. It could be both a privilege and a burden to be a lawyer, especially a defense attorney. To the untrained observer, in any courtroom battle, lawyers flanked those with the real stake in the outcome like mercenaries whose loyalties could be purchased at the price of a billable hour. Their well-placed words, like sharp weapons, were aimed at chinks in the opponent's armor. It often seemed that no one had really won, except for these soldiers of fortune. But the defense attorneys were the worst, indefensibly representing the accused and victimizing the victim all over again. Unschooled in legal principles, most people couldn't see the ideals these attorneys were fighting for: that every person, no matter how disliked and no matter what the crime, is entitled to legal representation; that the lawyer cannot act as judge and jury, only advocate, no matter what the circumstances; and that every person is presumed innocent until proven guilty. Yet, legal principles didn't change the fact that nine of every 10 defendants are guilty or that the outcome often depends on how good the defendant's lawyer is. Yes, Jim knew, and he empathized.

"Most people have no idea, Mike." Jim shook his head, setting his portfolio down on the table by the chessboard, inadvertently knocking over a pawn. "They see the trappings of success, and they think we have it made. The houses, the cars, the private schools for our kids, the weekend getaways. . . . But they don't have a clue."

Mike leaned forward in his chair. "It's like Twain said, 'What a wee little part of a person's life are his acts and his words. His real life is led in his head, and is known to none but himself.' You're absolutely right: they don't know, they just assume," Mike said, taking another sip of his cognac. "They don't know the price we pay to work with some of these 'clients.' To hear their confessions - every gory detail of every crime they've committed. And you lean on them to tell you everything so that you're not surprised at trial. They know they're protected by the attorney-client privilege. That nothing you or they say will leave that room. Whether it's about that crime or any other crime they might have committed. After all, that's one of the bedrocks of our criminal justice system." Mike got up to pour himself another cognac.

Jim watched him pace back and forth, the gears turning, the adrenalin flowing. Mike finally resumed his seat and stared at his partner without really seeing him. "But they don't tell you in law school what it will do to you, or how to deal with it. How you're supposed to hear those confessions and then do everything in your power to make sure that the animal is uncaged to prey on other innocent victims. What you're supposed to do when something inside of you snaps, when you know deep in your heart that something's been irretrievably broken. You're supposed to make the law bend to your will - make all objections, marshall every argument - and be a zealous advocate. Some think that you're supposed to be searching for truth in that courtroom, but that isn't what your job is. You know it isn't. Your job is to do everything in your power to defend your client."

"That's right, Mike," Jim said quietly. "Just like I'm here to defend you. No judgments, just me doing everything I can for you. And nothing we say here tonight will leave this room, that's how the system works."

"Yeah, the system works." Mike's eyes hardened. "You know what's even worse? It's not the ones who confess everything to you. It's the ones who sit right across from you, no farther than you are from me right now, and pretend that they're innocent. They think they're so clever, that they've fooled everyone, and that they can fool you too. But then they let one detail slip - a detail that they have no business knowing - and you feel the hair on the back of your neck stand on end and you know that they're 100% god-damned guilty. But you're too far into it to back out: you've gotten 10 other guilty ones off, how can you stop now?"

"Mike, you've always said that it's better to have 10 guilty men go free than have one innocent man go to jail. Don't stop believing it now."

"And that's what we dream about, isn't it? We dream about having an innocent client. Just one. Someone who's truly worth fighting for, worth believing in. And that's when we're afraid we'll lose."

"But, Mike, you've never lost. You've got the best record of any attorney in this country. You must be doing something right."

"Yeah, everybody says 'you're so lucky, Mikey boy.' Lucky? Do they realize how much pressure that is? The way you lie awake at 3:00 in the morning and wonder when the luck will run out?" Mike shook his head. "It almost did five years ago at the Hinman trial. Remember?"

"Sure. Six prostitutes killed in the same, ritualistic way. And you were convinced your client didn't do it." =

"The evidence against him was overwhelming. I remember thinking, well, I've met my match. I finally get an innocent client, and he's going to jail. And it was right before I signed that $10 million book deal, where they were billing me as the lawyer who couldn't lose."

"But you won, Mike. And you've been winning ever since. We won't let one case of bad judgment ruin an otherwise incredible career. You were just defending yourself. We'll make them see that."

"I remember sitting in this very room, examining every argument that could be made, every piece of evidence, and I knew in my gut there was no way in hell that I could get Hinman off. Nothing I had could create reasonable doubt. And that's when it hit me."

"What?"

"I'd read all the police reports. I knew details about the killings that the police had withheld from the press - details so bizarre that only the killer could possibly duplicate them. And I knew that the only way to get my client off would be if another murder - with exactly the same quirks that fit the profiles for the previous killings - occurred while my client was sitting safe and sound in his jail cell awaiting trial." He lowered his voice to a whisper. "It was the only way."

Mike sat back and took a final sip of cognac. "You know, you're absolutely right, Jim. I shouldn't let this get to me. After all, I've got one helluva lawyer." They walked to the entryway, said their goodbyes, and then the rosewood door closed once again on the hot August night. Jim leaned against the door, chilled to the bone, the hair on the back of his neck standing on end.

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