Read an Excerpt
The Moral Compass of the American Lawyer Truth, Justice, Power, and Greed
By Richard A. Zitrin
Ballantine Books Copyright © 2000 Richard A. Zitrin
All right reserved.
Robert Garrow and His Lawyers
The most difficult ethical dilemmas result from the frequent conflicts
between the obligation to one's client and those to the legal system and
to society. --Professor (later U.S. District Court judge)
Jack B. Weinstein
On the evening of August 9, 1973, just as Frank Armani was sitting down to dinner with his family, he received a phone call that not only would change his life, but would set him on a course of conduct that years later he couldn't fully justify, even to himself. The caller was the wife of Robert Garrow, convicted rapist, accused child molester, and suspected serial killer. Police had captured Garrow that morning after the largest manhunt in New York State history, wounding him seriously in the process. Now Garrow lay in his hospital bed in critical condition, refusing to talk to anyone except his wife and his lawyer, Frank Armani.
Armani lived and worked in Syracuse, New York. Due north of Syracuse are the Adirondacks, one of our nation's most beautiful natural treasures. These five million acres of protected parkland, tree-covered mountains, and idyllic lakes are where people go to escape the heat, crowds, and violence of the Northeast's urban sprawl--where they go to get away from it all.
That's just what eighteen-year-old Philip Domblewski and his three friends, Nick Fiorello, David Freeman, and Carol Ann Malinowski, had in mind in late July 1973. They had pitched their tents for the night in a clearing on the edge of the woods just off State Route 8. They woke up to see Robert Garrow, a rifle at his side.
Grabbing a coil of rope, Garrow herded the four friends into the thick woods. He forced Nick to tie David to a tree trunk, then moved deeper into the forest, where Phil was forced to tie up Nick. Finally, after Carol Ann had tied up Phil Domblewski, Garrow took her to another tree and tied her up as well. Garrow then returned to Phil. Carol Ann couldn't be sure what was happening, but she could hear Phil's screams. Desperately she managed to work her way out of her bonds and ran off to hide in the woods.
Nick too had broken free. He made it back to the campsite and drove off in search of help. He returned a short time later with a small posse of armed men. They searched until they found David running in the forest in fear of his life and Carol Ann sitting by the body of Phil Domblewski. Phil had been slashed and stabbed repeatedly in the chest and finally killed with a knife wound through the heart. Garrow was nowhere to be found.
Phil Domblewski's friends soon gave police a positive identification of Robert Garrow. Garrow was a man whose mug shot was well known to the cops. The New York Bureau of Criminal Investigation and the state police quickly organized a massive manhunt. There were good reasons for their urgency. The police knew that Garrow, an experienced backwoodsman who grew up in the area and could live off the land, needed only to cross one state highway to escape into the vast expanse of the Adirondack wilderness. But most important, they feared for the safety of Susan Petz.
Nine days before the Domblewski killing and just fifty miles up the road, police had found the body of Daniel Porter, a twenty-one-year-old Boston College student, tied up and stabbed to death. The pattern of the stab wounds was similar to the stabbing torture inflicted on Domblewski. Porter's companion, Susan Petz, a Boston College student from Skokie, Illinois, had disappeared. Robert Garrow now became the police's star suspect in the Porter/Petz case. If Garrow had abducted Susan Petz, she might still be alive--if they could find her in time.
* * *
Hoping that he would be willing to help in their search, the police called Frank Armani, a former deputy DA who now ran his own small law firm. He handled some criminal law work, but concentrated mostly on personal injury cases. He had met Robert Garrow a year earlier, when Garrow asked for advice about a minor automobile injury case. Nothing had ever come of the case, but a few months later, in November 1972, Garrow called Armani from the local jail. Garrow was accused of the false imprisonment of a young Syracuse University couple and possession of marijuana found in his car.
Armani knew that Garrow was on parole for rape, but he also knew that officials considered Garrow an exemplary parolee. He had found good work as a master mechanic at a Syracuse bakery and had worked hard to put his family back together. The New York State Crime Commission had even used Garrow as one of their "poster boys," an example of the parole system at its best. Garrow swore to Armani that he had done nothing wrong, and when the college couple admitted that the marijuana belonged to them, the case against Garrow was dismissed.
Six months later, though, Robert Garrow was back in trouble. Police claimed that Garrow had driven two young girls, ages ten and eleven, to a secluded area outside Syracuse, where he forced them to masturbate him and perform oral sex. Garrow called Frank Armani. When Armani read the girls' statements, he was struck by how well organized, detailed, and precise they were. He was convinced that no eleven-year-old could remember so much so precisely, and that the police had coached the girls. At the least, the police were guilty of overzealousness. At the most, his client might just be telling the truth. Armani agreed to represent Garrow. He had started to doubt his client, but he doubted the police work, too.
Armani succeeded in getting Garrow out on bail, and Garrow returned to his job at the bakery. But when the case was called for trial on July 26, Garrow failed to appear in court and the judge issued a bench warrant for his arrest. Three days later Phil Domblewski was killed.
When the police called Armani about the Domblewski killing, they also told him about their suspicions in the Porter/Petz case. Armani offered to help the police bring Garrow in. He even went on TV. "Running away will do you no good, Robert," Armani said on the air. "I'm willing to help. Come on in, and you won't get hurt."
For the next ten days, despite numerous reported sightings, the police had almost no idea where Robert Garrow was. Hope for finding Susan Petz alive faded with each passing day. Finally, on August 7, Garrow made a mistake. He stole a late-model Pontiac from the parking lot of a resort lodge. He headed north but found his way barred by a police roadblock. Garrow accelerated down the highway's double yellow line and broke through the barricade. He had gotten away again, but this time police thought they knew his destination.
Two days later, in the northeastern corner of the state, troopers flushed Garrow out of the woods behind his sister's home. As he dashed for another stand of trees, a sharpshooter with a high-powered rifle dropped him with shots in the leg, back, and arm. Garrow was taken to a Plattsburgh hospital in critical condition. There he instructed his wife to call Frank Armani.
Armani had never before handled a murder defense, but he had already represented Garrow in the molestation case. Garrow, who didn't have enough money for a lawyer on the murder charge, asked the court to appoint Armani. The local trial judge was ready to oblige. By now Armani had strong and serious reservations about Garrow, but this case, already one of the most notorious in upstate New York history, was headline news, a chance to be in the spotlight. With mixed feelings he accepted the appointment.
By the end of August Armani had been joined on the Garrow defense team by Francis Belge, a criminal defense specialist who had handled some of the region's most difficult cases. Given the overwhelming evidence and the bizarre history and behavior of their client, both lawyers believed that their only chance to save Garrow was an insanity plea, preferably one that included Garrow's confession to every crime he had committed, not just the Domblewski case. The lawyers figured that the more aberrant and abhorrent Garrow's behavior was, the easier it would be to prove his insanity.
But three weeks after his capture, Garrow continued to maintain that he could not recall the specific events of the Domblewski killing or the Porter/Petz case, in which the police strongly suspected his involvement. Years later Frank Armani would describe how he finally used party-trick hypnosis to suggest to Garrow that when Belge visited later that day, Garrow would remember everything. It worked; the floodgates opened. Not only did Garrow remember killing Phil Domblewski, he recalled details of the rape and murder of Alica Hauck, a sixteen-year-old Syracuse girl who had been missing since late July. The more Belge prodded, the more Garrow revealed, in graphic and gruesome detail.
Garrow told how he picked up Alicia Hauck as she was hitchhiking, drove her to a hill near Syracuse University, and raped her. He forced her to walk with him into a cemetery near the campus, and when she tried to run, he "hit her" with his knife over and over, killing her. Garrow described burying the young girl's body in thick underbrush near a maintenance shack in the cemetery.
Under Belge's prodding, Garrow began to recall bits and pieces of the murder of Daniel Porter and the kidnapping of Susan Petz. At first all Garrow could remember was fighting with Porter and having a terrible headache. He didn't recall tying Porter to a tree, but eventually remembered "hitting him" with his knife again and again. Then he had forced Susan Petz into his car and headed north to his parents' home, four hours away. There he pitched a tent in the woods, tied up his victim, and periodically raped her. When he went off to see his parents or to spend the night at his aunt's home, he tied Petz with rope and hose, leaving food and water at her feet. After a few days he took Petz to a swimming hole, where she grabbed for his knife and tried to escape. When he described this to Belge, Garrow seemed genuinely puzzled as to why the young woman tried to escape. "We talked, we had great conversations," Garrow explained. But when Susan Petz went for his knife, Garrow killed her and shoved her body down the air shaft of an abandoned mine.
The lawyers may have gotten more than they had bargained for by the time Garrow was done with his confessions. If hearing this horrific tale were not enough, Armani and Belge now had to decide what to do with their newfound knowledge. They represented Garrow only on the Domblewski case. But now they had confirmation of what the DA had long suspected about Garrow's involvement in the Porter/Petz case, as well as information on several new crimes, including the truth about the disappearance of Alicia Hauck, still listed as a possible runaway.
This new knowledge presented the lawyers with a terrible and serious dilemma. Should they reveal the information to the police or the district attorney? Could they at least tell the judge? Or must they maintain their silence, even though it meant concealing evidence of multiple murder? As they analyzed it, the lawyers both felt that the principle of lawyer-client confidentiality--that everything a client tells them must be "held inviolate" and never revealed--required them to say nothing to anyone. Instead the lawyers asked Robert Garrow to tell them exactly where the bodies of Alicia Hauck and Susan Petz were buried, and set out to find the evidence--evidence they felt would support the insanity defense they intended to build for their client.
First Armani and Belge drove to Mineville, the remote upper New York State town where Garrow's parents lived. Equipped with a flashlight and camera, they climbed Barton Hill and searched for the abandoned mine that Garrow had described. They walked past the mine opening several times before feeling the cool breeze from the air shaft. Then one lawyer lowered the other down into the shaft to locate and take pictures of Susan Petz's corpse. Interestingly, when the two lawyers described the same grisly scene after the fact, each claimed that he had taken the photographs. Belge told the New York Times that Armani had held him by his feet as he snapped pictures. But Armani told a biographer that he and Belge had looped their two belts together as Belge lowered Armani into the shaft, camera in hand.
Finding Alicia Hauck's body was far more difficult. Even though Oakwood Cemetery was located right in the center of Syracuse, the underbrush was so thick that the lawyers' first forays into the brambles resulted only in cuts and scrapes all over their arms and legs. Finally, after several failed attempts, Belge found Alicia Hauck's headless and badly decomposed remains. Her skull lay about ten feet from her body. To get a picture of both, Belge moved the skull and placed it near the shoulders of the body before snapping his photos.
By this time, of course, Armani and Belge knew that Garrow's stories were true and that he was a vicious, crazed killer. This made their dilemma about their confidential information all the more difficult. To make matters worse, they now knew, literally, where the bodies were buried, and they also knew that both the Petz and Hauck families were searching for their children.
Still, Armani and Belge chose silence. Even when Susan Petz's father flew east from Chicago in search of his daughter and met with each lawyer to plead for information, their resolve to keep their client's secrets "inviolate" did not break; the two attorneys told him nothing. Later Alicia Hauck's father tried several times to see Armani, but the lawyer refused to talk to him.
But the lawyers did discuss the two girls' bodies with the prosecution, at least indirectly. Armani and Belge hoped that they could convince the prosecutors that their client was insane, and that it was in the state's best interests to accept a plea bargain. They pushed for this alternative mostly because they felt it was their client's best option. A plea of not guilty by reason of insanity would mean that instead of being sent to prison, Garrow would be housed in the much friendlier confines of a state hospital, where medical treatment would be available. Also, since Garrow would technically be found not guilty due to his mental condition, there would be at least the possibility of a future release if hospital psychiatrists ever deemed him "cured." The possibility of release might be slight, but it was far better than any chance he had of ever being paroled from prison.
Belge and Armani had three arguments to support their position. First, only a crazy man would do what Garrow had done. Second, a guilty plea would save the taxpayers of tiny Hamilton County, the most rural county in the state, hundreds of thousands of dollars in trial costs. Third, the lawyers told the DA that as part of the plea bargain, they and their client would clear up several unsolved disappearances and disclose where the remains of missing victims had been buried.
This was a daring but dangerous strategy. The lawyers insisted that they were bound by the cloak of confidentiality, refusing to be more specific about what crimes could be resolved. Saying too much too soon could breach confidentiality and give the police the evidence they needed to charge Garrow with the other crimes. So while the prosecutors undoubtedly surmised that Belge and Armani were talking about the Petz and Hauck cases, they could do no more than speculate.
Perhaps more significant, however, was how far the attorneys felt they should go in fulfilling their duty as lawyers to "zealously represent" their client. Armani and Belge surely knew that using the girls' bodies as bait for their deal was walking a very thin line. Implying Garrow's involvement in other terrible crimes might help them convince the prosecutors that their client was insane, but they would be using those other crimes--and the victims' bodies--as bargaining chips.
The lawyers' tactic infuriated the DAs of both Hamilton County and Onondaga County, where Syracuse is located. To the prosecutors, it was one thing for the lawyers to decline to reveal a client's confidential confession, but something else entirely to use their knowledge of the deaths of two girls--knowledge so desperately sought by the girls' families--to cut a deal for their client. The prosecutors refused to negotiate.
During the fall and winter of 1973 Armani and Belge spent a considerable amount of time in the small town of Lake Pleasant attending pretrial hearings, conducting their investigation, and otherwise preparing for trial. Since the town was a good two-hour drive from Syracuse, they looked for a place to rent rooms and set up a satellite office. This proved unexpectedly difficult, since they had become the most unpopular people in town. When they finally set up shop at a local inn, the innkeepers themselves were shunned by many of their friends.
Things weren't much better for the lawyers back in Syracuse that winter. They were both drinking more than they should, and Armani suffered increasingly from insomnia. Armani's office was broken into on several occasions, while at home, his wife and daughters received numerous obscene and threatening phone calls. These disruptions caused Armani to hide and finally destroy the photographs of the two girls' bodies, as well as some tapes he had made of Garrow's admissions. He was afraid that these confidential items could be stolen and then revealed.
Then in December a Syracuse University student found a decomposed body in a remote part of Oakwood Cemetery. Dental records identified the body as Alicia Hauck. An autopsy revealed that she had been strangled to death and then repeatedly stabbed. Less than two weeks later some schoolchildren playing near the abandoned mines in Mineville saw what they thought was a human foot. They called their teacher, who soon discovered the body of Susan Petz. The autopsy showed she had been stabbed in the chest repeatedly and hit over the head with a blunt object. Police announced that Robert Garrow was the prime suspect in both killings.
The case of Robert Garrow went to trial in May 1974 in the highly charged atmosphere of the Lake Pleasant courthouse. It began with a lengthy jury selection process. Hamilton County had less than five thousand inhabitants; over half were screened for service on the Garrow jury. There were three common reasons that prospective jurors gave to explain why they could not serve on the case. One excuse came from those whose jobs depended on the seasonal tourist trade, which started in May. The two other excuses were from jurors who were personally acquainted with the judge or DA and those who were already convinced that Robert Garrow was guilty.
In contrast to the five weeks it took to select a jury, the trial itself lasted only two weeks. The prosecutors needed just four days to put on their case. The pathologist testified about the stab wounds and the evidence that Phil Domblewski had been tortured before being killed. Domblewski's three friends told about their ordeal, and how cool and calculating Robert Garrow had been throughout.
Then it was the defense's turn at last to present its insanity defense. To prove insanity, Armani and Belge would have to show not just that Garrow was mentally ill, but that because of that illness he lacked "the capacity to know or appreciate the nature and consequences of [his] conduct or that such conduct was wrong." Belge began by calling Robert Garrow. Still wounded, his left leg and left arm permanently damaged by the police sharpshooter's bullets, Garrow testified from his wheelchair alongside the witness box. The story he told was more horrific than anyone could possibly have suspected.
First Garrow recounted his tormented childhood on the farm owned by his parents. He talked about his short-tempered, alcoholic father and his cruel and violent mother; about his father whipping him with a belt and making him stand in a corner for hours at a time. Perhaps worse, he described how his mother beat him at almost every opportunity, once hitting him over the head with a piece of firewood when he was five, knocking him unconscious. He also detailed how she made him wear his sister's bloomers when he misbehaved. When he spoke of his siblings, he referred to each of them as "it" rather than "he" or "she."
Garrow testified that at age seven or eight he was sent to live at a neighbor's farm as an indentured servant. Then, to the shock of everyone in the courtroom, Garrow described how at age eleven or twelve, alone on the neighbor's farm with no friends or other children, he had started having sex with the animals--dogs, cows, and sheep.
He stayed at the neighbor's farm until he was fifteen, when his parents sent him to an industrial school for incorrigible children. He joined the air force at seventeen but spent most of his two years' service in the stockade for stealing a camera and selling pornographic pictures. After his discharge he got in trouble again when he started a fight and quit his job. The lawyer who got him out of jail used him as a sex toy, forcing Garrow to masturbate him, and whipping Garrow while he took pictures. At some point Garrow had gotten married, but soon after, he was convicted of rape. He swore he didn't remember whether he had committed the rape or not, but he was sent to prison and served eight years.
Then Robert Garrow described what little he could remember of several rapes he had committed after his release from prison. What he remembered most clearly were the terrible headaches, the pounding and pressure in his head that preceded each incident. Finally Garrow described what he recalled of the homicides: the Porter/Petz case, the Hauck rape and homicide, and the Domblewski killing. As he talked about the two men he had killed, he referred to them as "it" rather than "he." By the time his testimony was finished, Garrow had admitted to four homicides and seven rapes or sexual assaults.
Garrow's testimony was shocking beyond belief. But it was no more shocking to some than the revelation his lawyers made the next day. Garrow's testimony had freed them from their vows of silence. They held a press conference announcing that they had known since the previous summer of Garrow's involvement in the Porter, Petz, and Hauck homicides and the locations of the two girls' bodies. The lawyers were under no compulsion to reveal this; why they chose to do so remains a mystery.
The Garrow case took only a few more days to complete. Belge and Armani did their best to present the strongest possible insanity defense. They called several psychiatrists who explained Garrow's psychosis by citing several incidents in his early childhood. The doctors explained that Garrow saw himself as he would see a cow, horse, or sheep--an impersonal, unfeeling animal--and that he depersonified others in much the same way. One psychiatrist described asking Garrow to imagine that the doctor was Garrow's father. The psychiatrist described what followed as the most frightening thing he had ever seen. Garrow's face got red and his pupils became enlarged, and he complained of a loud rushing sound in his ears. "I've got to kill it, Dad," said Garrow, staring hard at the doctor, before the petrified doctor calmed him down.
Armani and Belge had laid it all on the line in their defense of Robert Garrow, but on June 26, 1974, after less than two hours of deliberations, the jury rejected the insanity defense and found Garrow guilty of first-degree murder.
Now public outrage shifted from Garrow to his lawyers. The local grand jury investigated both men, ultimately indicting Belge on two felonies: failing to report a dead body, as required by the health code, and failing to provide a body with a decent burial. Central to the charges--and perhaps to the grand jury's decision not to indict Armani--was the fact that Belge had moved Alicia Hauck's body in order to get a better picture.
But the trial court threw out the indictment, saying enigmatically that "a trial is in part a search for truth, but it is only partly a search for truth." The court said Garrow's lawyers had to "maintain ... a sacred trust of confidentiality," and even applauded Francis Belge for "conducting himself as an officer of the Court, with all the zeal at his command to protect the constitutional rights of his client."
When the prosecutors appealed the court's dismissal of the Belge indictment, the appeals court upheld it, but the opinion was hardly a ringing endorsement of Belge or Armani. Emphasizing their "serious concern" about the lawyers' reliance on absolute confidentiality and insisting that lawyers "also must observe basic human standards of decency," the appeals judges were far more critical than the trial court had been. So were Alicia Hauck's parents, who filed an ethics complaint with the state bar disciplinary authorities.
But the ethics charges were also dismissed. The ethics committee concluded that "[p]roper representation of a client calls for full disclosure by the client to his lawyer of all possibly relevant facts, even though such facts may be the client's commission of prior crimes. To encourage full disclosure, the client must be assured of confidentiality." Alicia Hauck's father saw it another way. "When you get lawyers against lawyers," he summed up in an interview many years later, "it's kind of a closed fraternity."
Francis Belge and Frank Armani walked away from the Garrow incident unscathed by any official penalty. But they fared less well in the court of public opinion. To many, these two attorneys typified the image of the unfeeling, unscrupulous modern-day American lawyer. But years later, in an interview for a PBS television special, Frank Armani described the internal conflict he and Belge felt. "Your mind's screaming one way, 'Relieve these parents' ... and the other is your sworn duty." When asked about "common decency," Armani replied that he tried to find "the higher moral good at the moment ... the question of the Constitution, of even a bastard like him having a proper defense ... against the fact that I have a dead girl, the fact her body's there [and] the breaking heart of a parent." Clearly distressed, Armani told journalist Fred Graham that "it's a terrible thing to play God."
Both Belge and Armani were particularly tormented by having to keep silent in the face of inquiries from the girls' families. Belge told the New York Times that "I spent, many, many sleepless nights" about the decision to remain silent, especially after Mr. Petz visited from Chicago. Armani explained that he had refused to see Alicia Hauck's father because he had been so upset by Petz's visit. He feared he would tell the bereaved father what he felt sworn not to reveal: "I just couldn't trust myself to meet him face to face." In fact, Armani acknowledged some years later that his own brother had been lost on an air force reconnaissance mission in 1962, and the body had never been recovered. This made it even more difficult for Armani to keep his terrible secret.
Throughout, the two lawyers and their supporters pointed to important constitutional principles to explain why the attorneys had done the right thing, in spite of how unfeeling it might have seemed. What principles could be so important as to justify the lawyers' actions to the citizens of New York State? The court that dismissed the Belge indictment put it this way:
A hue and cry went up from the press and other news media suggesting that the attorneys should be found guilty of such crimes as obstruction of justice or becoming an accomplice after the fact. From a layman's standpoint, this certainly was a logical conclusion. However, the Constitution of the United States of America attempts to preserve the dignity of the individual and to do that guarantees him the services of an attorney who will bring to the bar and to the bench every conceivable protection from the inroads of the state against such rights as are vested in the Constitution for one accused of crime.
When Fred Graham asked Armani what the point was in applying such important principles to "a piece of scum like Garrow," Armani replied that if a principle "doesn't belong to the worst of us, then it can't belong to the best. Where do you make the exception?" Armani was echoing the words of another New York lawyer, Judge Learned Hand. Hand, a legendary figure who served for over fifty years as a federal judge, is considered by many the greatest judge in the history of the state. His speeches and monographs emphasized that a society of laws must be measured by how it treats its worst examples, not its best.
But when Alicia Hauck's sister Cindy wrote Frank Armani to ask why he had remained silent in the face of the family's grief, the lawyer was never able to answer, though he started to many times. On the verge of breaking down, he explained it this way in his PBS interview: "I caused them pain, I prolonged their pain.... There's nothing I can say to justify that in their minds. You couldn't justify it to me."
* * *
Rarely will ethics rules and society's morals conflict more graphically and directly than in the choices that faced Francis Belge and Frank Armani. On one side was the obligation to protect their client's interests, their "sworn duty" never to reveal a client's confidences and secrets, their ethical mandate to provide their client with "zealous representation." On the other was "common decency" and the fundamental notions of justice, fairness, and compassion. There was also the moral imperative that so distressed both lawyers--to ease two families' pain rather than prolong it.
Belge and Armani made the decisions they did--to maintain their silence, to protect a "piece of scum" like Robert Garrow at all costs--in part because of the concept of "fiduciary duty."
A lawyer who agrees to take a client's case takes on a "fiduciary duty" to that client. That term includes loyalty to the client, zealous advocacy on the client's behalf, and a duty to protect the client's confidences and secrets. But the concept of fiduciary duty is even greater than the sum of these parts. It has often been defined as the duty a lawyer owes to each client by virtue of the lawyer's special position of trust over the client's affairs. Fiduciary duty requires the lawyer to place the client's cause above the lawyer's own individual interests, and to always act on the client's behalf in the utmost good faith.
If we accept their version of events, Belge and Armani indeed placed their client's cause above their own individual interests. By protecting Robert Garrow's horrible secrets, they suffered great personal costs--economically, emotionally, and to their own reputations. But what about the other side of the equation--telling the truth, seeing justice is done, "doing the right thing"? Does their fiduciary duty exempt lawyers from following these principles? Where do individual rights stop and the interests of society begin?
When asked, many, perhaps most, lawyers will candidly admit that seeking truth--discovering what really happened--is rarely their job. They might argue that the real truth is often hard to know, and that their role--their fiduciary duty--is to explain the truth as their clients perceive it. Some may admit that they present the truth as their clients would like it to be perceived. Most agree, though, that at best it's someone else's responsibility, the judge's or perhaps the jury's, to divine the real truth--Truth with a capital T.
The traditional view, espoused by lawyers from the old school, is that the adversary process, with one side arguing its version of truth and the other side arguing another version, somehow results in the emergence of absolute Truth. To many others, though, this is nonsense. One side may have much more money or a vast array of legal talent at its disposal, while the other side struggles simply to stay afloat. In the minds of some, the "little guy," America's favorite hero, has little chance against fat-cat corporations with large war chests and flashy law firms. Proving the truth, these people would argue, has far less to do with the facts of a case than money and power.
If lawyers don't see themselves as purveyors of Truth, they are much more comfortable with the idea that they are seekers of Justice. They point to a common concept of our legal system, the "legal fiction," which by its very nature chooses justice over truth. Here is an example of a legal fiction based on our Constitution, in this case the rights protected under the Fifth Amendment.
A suspect in a criminal case confesses, but only after he is put in isolation for twenty-four hours, threatened with beatings, and denied water to drink and the use of a bathroom. A judge later determines that the confession is unlawful because it was "coerced" by these unfair tactics. The judge notes that even an innocent person might have confessed under these circumstances. But the circumstances and the judge's opinion will never be presented to the jury. The jury will never hear anything about the confession at all. If the subject comes up, even police witnesses will testify in a way that makes it appear that the defendant never confessed.
The theory behind the legal fiction is this: Letting the jury hear the confession at all would be unfair, because it might influence the jury despite the circumstances. Some jurors, for example, might believe that no one would falsely confess to a crime after only a single day's deprivation, while for others the effect of the confession might be more subtle, such as tending to lend credibility to circumstantial evidence that would otherwise be weak. Instead of taking this chance, the theory is that the justice system owes it to the defendant to take matters into its own hands. So the judge strikes the confession from the record. The guilt or innocence of the defendant will then be tested only by the admissible evidence, leaving out all those things that the judge has determined would be unfair to one side or the other.
But while the concept of legal fiction makes a lot of sense to most lawyers, it raises some important questions for the rest of us. For instance, some people wonder why the judge doesn't simply allow the jury to hear about the confession and the surrounding circumstances, leaving the issue of the confession's fairness to the jury's common sense. Some people want to know the other facts of the case. For example, why did the police treat the accused so brutally? Was it because of the horrible nature of the crime and the overwhelming physical evidence of the defendant's guilt? If this is the case, then why are we so worried about the confession, no matter how it was obtained?
In other words, while lawyers and the legal system are seeking justice for the defendant, the American public is asking, "What about justice for society?" There is an increasing public perception that Justice is routinely done a disservice by lawyers who serve the needs of their clients by buying it at any price, even when they are clearly in the wrong.
While Francis Belge and Frank Armani saw themselves as seekers of justice, most of the public saw hired guns who shoved truth and justice under the rug, along with fundamental notions of compassion and decency. The lawyers claimed not only that they had acted properly under the rules of ethics, but that their actions served the greater good--"the higher moral good at the moment," as Armani put it. They pointed to their client's horrific childhood and what they considered to be his legitimate claim of insanity. They argued that only by protecting Garrow's confidence could they fulfill their fiduciary duty, not to mention upholding our Constitution. But this argument fell largely on deaf ears.
To the public, the best one could say about Belge and Armani is that they failed to see the forest for the trees. In their single-minded efforts to protect a rapist and murderer, they had lost touch with the larger needs of society: to see justice done, to put a killer behind bars, to alleviate the suffering of the victims' families.
But if it were that simple, why would any lawyer ever do what these two did? They became pariahs in their own city. Their families were shunned by former friends and harassed by obscene phone calls. Armani's marriage almost ended as a result of the case. On one occasion a Molotov cocktail was left at Armani's home. On another he got a death threat on his breakfast napkin: "We can take you out at any time. That kid killer better not get off."
Their law practices fared even worse. Frank Armani went from heading a four-attorney office with five secretaries to a one-man office with a secretary who came in three afternoons a week. His total compensation from the state for representing Garrow on murder charges was less than $10,000. Despite being deserted by many of his old clients, Armani managed to put the pieces of his life back together and rebuild a small practice, though he suffered two serious heart attacks. Francis Belge eventually gave up the practice of law completely.
If asked, Belge and Armani would undoubtedly say that it was the public and not the two attorneys who missed the forest for the trees. For the lawyers, the trees were the horrible facts of the Garrow case, while the forest was the American system of justice and the principle that unless every person's rights are protected--even someone as despicable as Robert Garrow--then ultimately no one's are. In this instance, protecting the "forest" came at great personal cost--to the families of the victims, to all the citizens of the little town of Lake Pleasant, New York, and ultimately to the lawyers themselves.
This point of view echoes a traditional theme of the American legal system--that protecting the rights of individuals is the best way to protect society. The theory is that this time the system protected a "piece of scum" like Robert Garrow, but the next time it might be you or me.
To illustrate this point, let's return to the confession scenario. We've said that many people think society shouldn't worry too much about how the confession was obtained when the accused is clearly guilty. But is that really true? Are we comfortable letting our police decide how far they can go in coercing a confession based on how guilty they think the suspect is? Do we want them to feel free to deny a suspect--any suspect--food and water for twenty-four hours, refuse to let him use the bathroom, and threaten him with beatings? That doesn't justify such conduct even if the accused turns out to be guilty.
Let's assume the accused in question is Robert Garrow on the day after his capture. He's wounded and hurting; the evidence seems strong. Once he's out of immediate medical danger, the police refuse to feed him, deny him medical treatment and pain pills, and force him to confess. If Garrow's rights are not protected here, what happens with the next Robert Garrow, where the evidence is a little less clear? Or the one after that? As Frank Armani put it, "Where do we make the exception?"
In this fictional scenario, when Frank Armani and Francis Belge move to strike Garrow's confession, they are doing it to protect Garrow's rights. But in another sense, they are protecting the rights of all individuals in our society to be free from the kinds of abuses that their client suffered, abuses that we usually associate with societies less free, less democratic, than ours.
Judge Learned Hand said that it was "better 100 guilty men go free than one innocent man go to jail." But he spoke these words over a half century ago, when there was less crime in the streets, a simpler, less cumbersome legal system, and a less jaded American public. Today the average American is much less willing to accept Learned Hand's aphorism than the words of the distraught father of another victim, Ronald Goldman. When Fred Goldman declared at a press conference in the middle of the O.J. Simpson trial that "this is not justice," he struck a chord with the American people. Mr. Goldman, and much of the public, was frustrated by endless months of testimony, an endless stream of witnesses, and a trial that seemed to become less about the accused, and still less about the victims, as time went on.
Many lawyers, perhaps Francis Belge and Frank Armani among them, might well be sympathetic to Goldman's plea. But they would also argue that this point of view sends us down a slippery slope, where we may lose far more than we think. Do we really want to let the American public decide who is guilty and who is not, which trials are too long, and which present defenses so implausible they should not be allowed? If the American public gets to decide, will we find ourselves voting on the guilt or innocence in the next celebrated case by USA Today poll or by pushing a button on interactive TV?
Epilogue: The End of the Saga of Robert Garrow
Robert Garrow began his life sentence in the high-security surroundings of Dannemora State Prison, where he had served out his prior rape sentence. But he complained continually to prison authorities that his wounds, which had left him in a wheelchair, meant he should be moved to Fishkill, a medium-security institution housing the elderly and infirm. He backed up his complaints with a lawsuit against the state prison system. In 1978 Garrow got his wish--a transfer to Fishkill.
On September 8, 1978, well after lights-out, Robert Garrow got out of bed, placed a dummy stuffed with rags in his cot, grabbed a radio and the gun his son had smuggled in to him, jumped the fourteen-foot fence that separated him from freedom, and disappeared into the densely wooded terrain that surrounded the prison. It was his kind of terrain. His left leg and arm were not nearly what they once were, but neither was he the wheelchair-bound invalid he led the prison system to believe he was. Robert Garrow, serial killer and rapist, experienced woodsman, was once again at large.
Again, as in 1973, one of the first people the police contacted was Frank Armani. They asked him for anything that could help them apprehend his former client. This time, according to what he told his biographer years later, Armani did not remain silent, despite the cloak of confidentiality that is never lifted even when a lawyer's representation ends. Armani thought back to the secrets Garrow had told him from his hospital bed in Plattsburgh about how best to avoid a police dragnet, and reported what he recalled to the police: Garrow would stay near the prison and let the manhunt pass him by rather than try to outrun it; he'd have a radio to monitor reports of police activity and blockades; he would hide in the deepest part of the underbrush and wait it out until the police felt they had exhausted their search of the area.
The police followed Armani's advice and continued to search the area surrounding the prison. On the third day, as dusk approached, a search team discovered Garrow in the underbrush. Garrow shot first, wounding the team's point man, and was immediately gunned down in a hail of police bullets. Thanks in part to confidential information revealed to the police by his former lawyer, Robert Garrow was dead.
Excerpted from The Moral Compass of the American Lawyer by Richard A. Zitrin Copyright © 2000 by Richard A. Zitrin. Excerpted by permission.
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