Steven Gore - A Criminal Defense

Donnally leaned against the brick wall behind him. He’d expected his discovery of the perjury would give him a feeling of solidity, of having found a foothold; instead it was one of vertigo, of losing focus on what he’d been asked to do: figure out who killed Mark Hamlin-and not go on what McMullin had called a fishing expedition, even though Donnally guessed that he could pull some monsters from the deep-for who knew how many similar tapes might be discovered in Lange’s storage room.

Forget the search warrant fantasy, he told himself. It wasn’t going to happen, or it would come too late. He needed the recording as leverage to find out whether Lange knew, or even suspected, who the killer was-even at the risk of incriminating himself in other crimes.

But the danger of confronting Lange was-no, the consequence would be-that he would move anything incriminating out of his house.

Donnally pushed off from the wall. The chess game in his head continued while he walked back to his truck. He leans on Lange, then has Navarro spot on the investigator’s house to see if he tries to sneak any boxes of records out, then follows Lange to where he stashes them.

Nope. Not worth the risk. What if Navarro gets caught? The defense bar goes haywire, the department gets embarrassed, and both Donnally and Judge McMullin get ripped in the press, Donnally for playing cop when he was supposed to be acting as a special master and McMullin for appointing him.

A guy like Lange, who does what he does and has so much to hide, always has to be looking over his shoulder.

Always.

Nobody will be sneaking up on Frank Lange.

Iwent to a conference today over at the USF Medical Center,” Janie said when Donnally walked into their bedroom. She was propped up in bed, drinking tea, and reading Lemmie Hamlin’s latest book. “I asked around about whether anyone had ever worked on any cases for Mark Hamlin.”

Donnally kissed her on the forehead. “I suspect no one would admit it now.”

Janie smiled. “You wouldn’t make a very good shrink. The urge to confess relationships with victims seems to follow like a vulture in death’s wake.”

“Very literary.” He pointed at the book. “Is that where you got that line?”

“No. It just stirred my creative juices.”

Donnally grinned and raised his eyebrows. “Any other juices get stirred?”

“There was a great sex scene in chapter seven, but I didn’t need the stirring.” She grinned back. “You know me.”

“Let me take a shower and I’ll see what I can do.”

“Don’t you want to know the gossip?”

Donnally nodded and sat down on the edge of the bed.

“Those who do forensic psychology in criminal cases are trapped in a weird conflict. They’re proud to be known for their expertise, but they’re embarrassed to have been chosen for their pliability. It hit me while I was listening to them how it really works. It’s kind of like the way people adopt whatever religion they’re born into, embrace it as though they’d chosen it themselves, and then become willing to kill and die for it.”

“And these shrinks adopt the point of view of whoever calls them first,” Donnally said, “and are willing to scheme and lie for it.”

“That’s the implication.” She smiled. “And very poetic.”

Donnally had watched dozens of those hacks in homicide cases, especially capital cases in which psychologists and psychiatrists were called by the defense for what the law calls mitigation, to testify about how a murderer’s unhappy childhood caused him to plan and execute a robbery murder, or even a series of them.

It angered him, even though he was no fan of the death penalty and would never vote for it himself either on a referendum ballot or as a member of a jury. And the advantage of working in San Francisco was that the DA rarely charged special circumstances and paid attention to a detective who argued against seeking death in a case.

At the same time, he hated the self-deceptions of the cottage industry that built up around capital cases. It was made up of attorneys, private investigators, mitigation specialists, psychologists, and social workers who always found a way to convince themselves that their particular crook’s life was worth saving.

And it was absolute bullshit.

Murders have nothing to do with unhappy childhoods and everything to do with power.

Individually, none of the guilty defendants was worth saving. They were disgusting human beings who knew what they were doing, knew that it was wrong, and got a thrill out of doing it.

“I’ve never understood how people could do that kind of work,” Donnally said. “They delude themselves and deceive juries about what these guys really are.”

What made their lives worth saving was simply that they were human beings; that and the fact that errors were built into the system and it was wrong to exact absolute punishment without absolute certainty.

There wasn’t such a thing.

Nobody with a half a brain needed an Innocence Project to teach them that lesson.

And by the time a capital case got to court, it wasn’t about truth anymore, but about winning.

“It’s not just the defense,” Janie said. “These people also work for the prosecution.”

“And that pisses me off, too. The DA’s playing the same self-deluding game.”

Prosecutors would match defense attorneys in lying to themselves and to juries, arguing this defendant, more than the defendants doing first-degree murder sentences or life-without-parole sentences, deserved death-even when the worst of the worst never got it.

Son of Sam. Charles Manson. Jeffrey Dahmer.

Kill two. Get death.

Kill ten. Get rewarded with life for just telling the cops where all the bodies are buried.

In Donnally’s experience, the more maniacal the crime, the more likely the jury would be looking for reasons why the defendant got so twisted. And once the jurors started down the psych road, it was hard for them to think of the killer as a willing, thinking, choosing human being, and that prevented them from seeing him as the murdering son of a bitch he was.

“Hamlin knew how to play these people and do a little psychological dance with them,” Janie said. “He’d drop by their office and present the case hypothetically-”

“I tried that today with Goldhagen. She wouldn’t go for it.”

“All the people he hired did. He would describe the murder, straight police report kind of stuff. The blood and guts and the premeditation and planning. The psychologist would lean back in his chair and stroke his pasty chin and say, ‘I don’t see anything there. That seems awfully cold-blooded. Not much chance of finding any mitigation. I’m not sure I’m in a position to assist you.’

“Then Hamlin would tell him that the defendant’s mother was a dope addict, that he was abused as a kid, that his father ran off when he was two, that he got beat on the head when he was six, that he was molested by this uncle when he was ten-that kind of thing. Then the psychologist would lean forward again, furrow his brow, and say, ‘I think I was mistaken. Clearly, this is not the sort of defendant the death penalty was enacted for.’ ”

“I thought shrinks were supposed to see through those kinds of games,” Donnally said, “not get self-justifications out of them.”

“All three I spoke to who’d worked for Hamlin described having to be convinced to get involved in the case, and none of them realized they were all telling the same story and confessing to the same rationalization.”

Jamie stuck a bookmark in her place and folded Lemmie’s novel closed. Donnally took this as a sign she was about to hit the punch line.