Black's Law: A Criminal Lawyer Reveals His Defense Strategies in Four Cliffhanger Casesby Roy Black
Roy Black's cases illustrate the life-and-death struggles that occur every day in our criminal courts. In Alvarez, Black has to convince a jury to put aside poisonous pre-trial publicity, the threat of a race riot and almost universal pressure for a conviction in order to keep a young Hispanic police officer out of jail for killing a young black hoodlum in the line of… See more details below
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Roy Black's cases illustrate the life-and-death struggles that occur every day in our criminal courts. In Alvarez, Black has to convince a jury to put aside poisonous pre-trial publicity, the threat of a race riot and almost universal pressure for a conviction in order to keep a young Hispanic police officer out of jail for killing a young black hoodlum in the line of duty. In Knight, Black must contend with issues of class and race as he wages a four-year struggle to persuade federal appeals court judges to overturn the death sentence imposed on an insane, brutal killer because of the incompetence of his first lawyers. In Hicks, Black has to prove the innocence of a client who is his own worst enemy by convincing a jury that the police conducted a sloppy murder investigation. And in De La Mata, Black must persuade jurors to disregard the damaging testimony of admitted drug dealers who have plea-bargained for lesser sentences in order to save a former bank president caught in the crosshairs of a federal prosecutor waging his own relentless war on drugs. Black's Law reveals what really goes on in our criminal courts and makes resoundingly clear the crucial role that criminal defense lawyers play in safeguarding the basic right to a fair trial for all.
Alan M. Dershowitz Felix Frankfurter Professor of Law, Harvard University Roy Black is better than Atticus Finch.
F. Lee Bailey Black's Law will take its place with Stryker's The Art of Advocacy, Wellman's The Art of Cross-Examination, Nizer's My Life in Court and Edward Bennett Williams's One Man's Freedom.
Daniel M. Petrocelli No one is more qualified than Roy Black to give us such an authoritative and compelling look into our criminal justice system.
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From Chapter One: Alvarez
December 28, 1982. The trigger engaged the hammer, pushing the firing pin into the base of the cartridge. The ensuing explosion blew the 158-grain, pure-lead hollow-point bullet out of the barrel at 950 feet per second, mushrooming as it punched into the bony forehead. I was fifteen miles away enjoying a plate of jumbo stone crabs dipped in mustard, with a side of hash browns, at Joe's in South Beach. The riot broke out as I was digging into one of Joe's celebrated key lime pies.
Fifteen minutes later I drove my elderly Mercedes 190 north on Alton Road, past the Miami Beach marina, and on to MacArthur Causeway. The concrete parkway rises over Biscayne Bay, then slices into the heart of downtown Miami. To my left was the vast port of Miami, a steel-and-glass island city, with sleek white cruise ships docked end to end along a two-mile-long wharf. To my right were the celebrity mansions of Star Island and, next door on Palm Island, the fortified mansion Al Capone lounged in during the St. Valentine's Day massacre.
I rode past Watson Island and on to the labyrinth of expressways, raised on tall concrete columns, that bridges drivers safely over crime-infested streets and the crumbling housing projects of Miami's oldest black ghetto, Overtown. The transportation system was an expensive conspiracy to shield our eyes from unsightly poverty and disease in one of the world's richest playgrounds.
I was reminded of what lay below when I saw the Twelfth Avenue exit ramp blocked by police cars, blue-and-red lights flashing. I turned on the radio to WIOD 610, an all-night news station. "A cop just shot a black youth in a video arcade on Third Avenurney's Office, the Miami city manager's office and something called the Community Relations Board -- held press conferences to announce that they were starting investigations. The elected officials of the Miami City Commission promised there would be "no whitewash" of its own investigation. An associate U.S. attorney general in Washington said that the federal government wanted to see if there had been "a deprivation of civil rights" of Nevell Johnson Jr., the twenty-year-old who had died twenty-four hours after being shot.
If anyone had doubts about who was victim and who was villain, they could turn to The Miami Herald, which featured side-by-side stories of the two main participants. The one about Nevell Johnson was topped by this headline: "Victim had good job record, respect of his co-workers, love of his family." Alvarez was portrayed less sympathetically: "Record of Officer who shot Johnson includes five departmental probes."
Johnson's story described a model citizen who worked as a courier at a county agency. His co-workers adored him. The story claimed he had no police record and was never a bother to anyone. "All our boys," Nevell Johnson Sr. said, "we raised them right. They're not bad boys."
Alvarez was portrayed by the Herald as a hot-tempered officer with an internal affairs file packed with citizen complaints. In this and subsequent stories, he was described as a macho cowboy. On the night of the shooting, police officials claimed, he had left his patrol zone without permission to roust the arcade. Eyewitnesses insisted he had stormed into the arcade cocking his gun. TV news shows starred Overtown residents describing Alvarez as throwing down a Saturday night speci al near Johnson's hand after the shooting, to make it look as if the youth had lost a shoot-out.
These stories and the opinion pieces that followed made out Alvarez as guilty. I remember thinking that if this cop thought the shoot-out was bad, just wait for the backlash from an establishment desperate to keep racial peace. Several days later Ron Cohen, a former student of mine who had become counsel to the Fraternal Order of Police, called and told me it was only a matter of time before Alvarez was indicted. Did I have the balls to take on his defense?
Without a second thought I said send him over. But as soon as I hung up, I felt a frisson of doubt. The local press smelled blood, and wouldn't turn its nose up at mine. One miscalculation, gleefully emblazoned on every TV show and in the Herald, and my fledgling career was history. Clients didn't stand in line to hire the lawyer who blew the biggest case of the year. Still, I had agreed to see him, so I did, late the next morning.
He was a handsome guy, with a sharply clipped Latino-style moustache. He had pale skin, curiously untanned for a cop, framed by black hair. He had sharp, suspicious eyes that perhaps had seen too many nights in a police cruiser. He was slim, too -- not one of those macho bodybuilder cops on steroids. He stood still as he scanned my office, which, as usual, was cluttered with shelves stuffed with books, a desk piled with unopened mail and old newspapers. It looked more like a used-book store than the cool minimalist office suites of the grand corporate law firms.
The way his eyes moved I could see he was tightly wound. But there was a dignity in his erect bearing, and I sensed a certain solidity in his dem eanor that indicated, even as tense as he was, that he had an inner confidence that might carry him through the even more intense pressure that lay ahead.
I also sensed a wariness. Why should he open up and trust me? I wondered. I had just left the Public Defender's Office, where the street cops saw us as their sworn enemies, the hated opposition who put the scum back on the street.
To break the ice, I asked him how he was holding up. Sinking into a chair, he expressed shock that the police department had succumbed to political pressure. His bosses had yanked him from street patrol and put him behind a desk, doing nothing, making him look more guilty. "How can they abandon me? That man tried to kill me. When a young punk goes for his gun, the last thing I'm thinking about is his color."
Luis thought the media, particularly The Miami Herald, was generating all the hatred against him. "These stories are all garbage," he complained. "There isn't anything in them that's true." The newspaper was treating him like a mobster. For several days Al Messerschmidt, a Herald reporter, had sat in a car in front of the duplex where Luis lived with his mother. She was terrified. The guy kept insisting that he wouldn't leave until he got an interview.
"Everyone thinks I'm guilty. Only the street cops, the guys on my shift, support me. They keep coming to my house, all night long. You'd think it was a wake. I don't care what reporters say -- I don't see any of them walking down Third Avenue at 3 a.m."
Luis thought the whole experience was a bad dream. He expected to wake up one morning and see the problem had vanished. Once the police and State Attorney's Office finished their investigations, he would be vindicated and that would be the end of it. He thought it would speed up the process if he went to the investigators and explained what happened.
"Listen, you don't quite get it," I said. "They don't want to hear the truth. Everyone else gets off the hook by blaming it all on you."
Luis blinked, then stared down at the floor.
For a long moment he didn't say anything. Then he stood and paced around the room, hands clasped behind his back. "I can't believe it," he said in a low voice, talking to himself. "What do you think they'll charge me with?"
"Manslaughter, I bet."
"But he was trying to kill me!"
He was looking so distraught that I calmed him down by asking him about his background. He told me that he had been born in Cuba and came to the United States with his mother when he was eight. She had worked as a waitress six days a week, twelve hours a day, to keep them going. Luis found a part-time job when he was fifteen as he went through high school and then junior college. He had been a police officer for eighteen months. He was twenty-three years old, earning $450 a week.
"I've always wanted to be a cop," he said. "But a real cop. Somebody who arrests bad guys. I'm not a paper cop. I'm not one of those guys who just fills out the forms at the donut shop."
Abruptly, he changed the subject. "So you want me to tell you what happened that night?" He said he had been showing a rookie cop, Luis Cruz, the worst spots of Overtown. That's what brought him to the arcade, where he encountered Nevell Johnson. "I shot him in self-defense. What should I have done, let him shoot me? It happened so quickly, so fast, I didn't have time to think."
"Let's slow it down," I suggested. We replayed the shooting many times, first in slow motion, then at full speed. Years of listening to stories in jail cells and courtrooms force you to become a fairly accurate judge of character. I was sure his fear of death that night wasn't faked, but I also knew that wasn't enough to prove self-defense.
"Look," he said, "I know my whole life is on the line. How long would I last in Raiford [the notorious state penitentiary]? Fifteen minutes? I always defended myself, but I can't do it here. I need someone who believes in me, who's not just going through the motions."
He had seen his life transformed in an instant from respected cop to pariah. He desperately needed help. How could I say no? Like one of my partners said: Good thing you're not a girl, you'd always be pregnant.
William Perry, president of the Miami chapter of Jesse Jackson's group Operation PUSH, and others organized a massive six-mile march from the Overtown game arcade to Miami's City Hall, chanting slogans, singing "We shall overcome" and carrying signs demanding Alvarez's arrest. When the marchers arrived, the mayor and two elected commissioners were waiting to listen to their demands that Alvarez be brought to "justice." Howard Gary, Miami's first black city manager, calmed the crowd by assuring them that Dade State Attorney Janet Reno had all the evidence and Alvarez would soon be brought to "justice." The crowd cheered.
Only Reno stood between Alvarez and an indictment. She was just launching her meteoric rise through the legal firmament and was no stranger to strong-arm politics. At the knee of her father, Henry, who for decades had served as a police reporter for The Miami Herald, Reno had learned all about the subtle ways in which prosecutors can manipulate the media. She had learned her lessons well because the media had begun canonizing her into Saint Janet of Miami. Ironically it was her country girl appearance -- tall, lanky, ungainly-looking with mousy brown hair shaped like a helmet, thick square glasses, given to frumpy fashions -- that made her popular with the average citizen, precisely because she looked so different than the carefully manufactured elegance of most politicians.
Faced with riots and blaring newspaper headlines, Saint Janet did what any savvy politician would do -- cut Alvarez up into little pieces and throw him to the mob. What did we expect? Profiles in Courage?
She could be so charming that people tended to overlook the little inconsistencies in her ethics, like claiming personally to loathe the death penalty but not hesitating to ask for it in headline-hunting cases. While campaigning, Reno liked to style herself as the policeman's best friend, but with the heat on, she decided that prosecuting cops was more politically advantageous than defending them, and in our case, she forged ahead.
Reno assigned three top prosecutors and two investigators to work full-time on the case. She presented the case to a grand jury that included Fred Graves, an attorney who was one of her former prosecutors. The grand jurors listened to a parade of alleged eyewitnesses, each of whom gave shocking testimony about how Luis had abused Johnson.
Neither Luis nor I was allowed to be present at the grand jury proceedings. We couldn't ask questions or put on our own witnesses. The outcome was predictable. Grand jury proceedings are supposed to be secret -- in fact, in Florida it's a c rime to disclose grand jury testimony -- but after the indictment Graves appeared on a half-hour television show and proclaimed Alvarez was guilty beyond any doubt.
When the indictment came in I was told Luis had to surrender at the Northside Shopping Center police station, right in the heart of Liberty City, a black area a few miles from Overtown. What better way to show the black community that the State Attorney's Office was "solving" blacks' problems? Someone made sure that this backwater police substation was swarming with dozens of journalists.
We had to elbow our way through the crowd to get in the building. For the next half hour I stood beside Luis as he went through the grim ritual of booking -- filling out the arrest form, being fingerprinted, being photographed. Luis kept grumbling that he was being treated "like any asshole on the street."
After he was released on a personal recognizance bond, we tried to avoid the journalists by leaving by the rear door, but reporters and cameramen were waiting. They trailed us to my car, shouting questions.
The next day the newspaper headline showed that black leaders weren't going to be satisfied with a mere booking: "'We Must Have Conviction' of Alvarez, Activists Say." Ray Fauntroy, leader of the black coalition, demanded: "We want him convicted and sent to jail with the maximum penalty." Another activist, Georgia Jones Ayers, warned what would happen if he wasn't convicted: "Take it from me, baby, this city is going to burn."
Perceptions of the Alvarez riot depended more on race than fact. Either it was a mob of drunks using the shooting as an excuse to rob and loot or a legitimate rebellion against decades of racism and poverty. Non e of this overheated ideology was news to me. I have the dubious distinction of having firsthand experience in each of Miami's race riots in the past quarter century as a legal mercenary for one side or the other. But for Miami's leaders this riot was one too many. They had a dread of black gangs burning down the city. This paranoia even had a name -- McDuffie.
This was the name given to the biggest riot, which occurred just two years before Alvarez, in May 1980, sparked by the trial of four police officers charged with beating to death a black insurance man named Arthur McDuffie. The trial was moved to Tampa because of prejudicial pre-trial publicity in Miami. When the cops were acquitted, Miami's black neighborhoods erupted in violence, producing the worst riot in the city's history. Eighteen people were killed and 270 were injured. Property damage approached $100 million.
The McDuffie riot produced the concept of the "Miami Riot Syndrome": White cop killing black suspect leads to riot. White cop getting acquitted of killing black suspect leads to another riot. After a while, as the people of Los Angeles were later to learn, when someone in a poor black neighborhood was shot by a cop, neighbors felt almost compelled to riot, as if it were a civic duty, and they felt the same way when the cop was acquitted. After verdicts, TV camera crews roamed the areas looking for "action," and, of course, the residents provided it. Authorities could figure out only one way to break the cycle: Convict the cop.
The McDuffie destruction was a constant theme in the media, and our prospective jurors kept hearing about it nightly. "We'll never forget McDuffie here," legislator Carrie Meek told Channel 7. "We wa nt justice, and we want it right now. If we don't get it, there will be a repeat of McDuffie."
My first task was to assemble the right team of lawyers and investigators to fight this war. Reno's office had the full-time help of several police detectives and I was certain it was searching for the best experts on police procedures that money could buy. Reno's team was led by two of her toughest prosecutors, Benton Becker, who was the U.S. Justice Department official who drafted the Nixon pardon for Gerald Ford's signature, and Robert Beatty, the highest-ranking black in Reno's office.
I needed an expert in firearms and police procedure on the trial team. There was only one name on my list -- Mark Seiden. Mark was a stubborn, disciplined loner and a dedicated scholar. After eleven years as a cop and years of self-study, he was an encyclopedia on guns. We met when he was a Metro-Dade police arson detective, orchestrating the prosecution of a client whose failing clothing store burned to the ground. I was surprised one day to find him sitting in my law school evidence class and even more impressed when he turned out to be the top student. But a devastating personal tragedy had recently befallen Mark and I hesitated to even approach him. While he was in the middle of the two-day bar exam in Tampa, his wife, Cheryl, a Metro-Dade detective, was ambushed and shot by two thugs in the parking lot of their condo. Her spine severed, she clung to life for two weeks before she died. Mark dropped from sight and I wondered if their dream of his becoming a lawyer died with her.
I had no other way of contacting him, so during a break in the trial of the man accused of killing his wife I approached Mark in th e courthouse corridor. "Mark," I said, "I know this is a difficult time, but I'm working on this Alvarez case, and I need some help. Would you give me a call when this is over?"
Several days later he dropped by. He told me he had already been offered a plum job. I shamelessly went for the jugular: "This is a chance to make a statement about the dangers of police work that won't come again. If we lose, think of the consequences to street cops in Miami." He agreed. We shared the sense of mission, but I sensed he needed the challenge to put his life back on track.
Next we needed a writer, someone who thrived on spending long hours in the law library reading cases and drafting motions. We found the perfect candidate, also a former student of mine, Ralph Barreira, who had just graduated fifth in his class. He dressed like a '60s radical and had long hair, but his politics were to the right of Ronald Reagan. Ralph could have had his pick of jobs with the biggest, best-paying law firms in town, but he preferred to join us in defending Alvarez.
Our team's first meeting was in temporary office space in a run-down building grandly named for the defunct Northeast Airlines. The war room was uncomfortably hot due to a malfunctioning air-conditioning system, but we loosened our ties and started to work. I took a yellow legal pad and sketched out a checklist of jobs. I assigned Mark to brief investigators, collect police and lab reports, and start calling possible defense witnesses. Ralph was to do a rough draft on our change-of-venue motion, pick up the discovery documents and assemble our files. My first job was finding friendly cops for intelligence gathering. We were a small team compared to Reno's s pecialists. We might be outmanned, but we would not be outworked.
Copyright © 1999 by Roy Black
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Meet the Author
Roy Black is one of America's most famous and respected criminal defense lawyers. A former public defender and a professor at the University of Miami Law School, he appears frequently on NBC, MSNBC, CNBC, and CNN. He lives in Miami, Florida.
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