Heart and Mind

In 1981, when I was representing criminal defendants on appeal, Vicky, a girl I’d known since childhood, was murdered.

Vicky was the youngest daughter in the family that my family was closest to when we lived in Sheffield, England, between 1964 and 1967. Our mothers began the friendship, and soon my brother and I were friends with the three sisters. I spent more time at their house than at any other except for ours, largely because I had a crush on the oldest daughter. But I felt close to the entire family. After I twice ran away from boarding school, their mother gave me a talk that helped convince me to stop. Eventually we emigrated to the United States.

In 1974, I took a leave of absence from college in America to spend a term studying in England. It happened that Sheffield University offered me the best arrangement, and once again I spent many free days at the home of Vicky’s family. I was twenty, and Vicky was a vivacious, mischievous, good-natured fourteen-year-old. She teased me endlessly, sometimes running at and bumping me so hard that I’d almost fall over. I attempted a poem about her that begins: “Detained at school for throwing ink / She runs home eager to confess / And beams with pleasure by the sink.”

I didn’t see the family again for eleven years, although our mothers kept up a correspondence. It was from a letter their mother sent that I learned that Vicky had died. Her family had earlier moved to nearby rural Derbyshire. One morning Vicky was home alone, still asleep, after her parents went to work. Hiding in the garden, the boyfriend she’d recently rejected watched her parents drive away, then entered the house and strangled her. I later learned he was convicted of manslaughter and sentenced to five years, of which he served two.

By then, my legal career was well under way. As a law student, I’d had the great fortune of working with Howard Eisenberg, then Wisconsin’s State Public Defender. In addition to researching and writing briefs, I observed Howard as he interviewed clients, all convicted, whose cases he was handling on appeal. There was the woman out of an Agatha Christie novel who had poisoned her husband with arsenic. Sitting at Howard’s side in the prison’s interview room, I was beguiled by her tale of innocence. Afterwards, noting she’d been worrying a rosary the entire time, he pointed out the flaws in her story. They didn’t mean he wouldn’t represent her; he needed to know what he could say in good faith on her behalf.

As we drove from prison to prison, Howard would speculate aloud. He floated the idea that the first time someone committed a crime, no matter what the offense; they should get a night in jail. For a second offense, the key should be thrown away. If one night in jail didn’t discourage someone from a life of crime, he argued, nothing would. Howard had a sense of humor that enlivened even his most earnest conversation, and he was being facetious, but only up to a point. Obviously, no society would accept a mere night in jail as payment for murder.

To represent defendants in criminal cases is to manage moral ambiguity. In truth, questions of morality come up in every job. A journalist might balk at intruding on a subject’s privacy. A babysitter might witness parental bad behavior and anguish over whether to report it. A store detective might see an emaciated young boy steal a candy bar and hesitate to detain him. Even so, few of us think of our jobs as compromising. It’s different with criminal defense. Moral ambiguity is in the nature of the work, and seen as such, because at least some clients are guilty of terrible acts.

When Vicky died, I was a lawyer in my own right, practicing criminal defense on the appellate level in New York City. By 1985, when I next went to England, I’d left criminal law; not out of distaste for the work, but to escape the politics of a poorly run office.

At the home of Vicky’s family during that 1985 trip, her mother spoke feelingly and thoughtfully about her loss. Vicky’s sisters didn’t mention her to me, which could have been for any number of reasons, beginning with their both being new mothers themselves. On the other hand, their father’s reticence felt to me like a rumbling volcano, as if he contained an anger for which there was no good outlet.

No one in the family referred to my former defense work. I didn’t, either. In the face of such tragedy, how could I even think of talking about the finer points of justice?

What would have been the right punishment for Vicky’s ex-boyfriend? He convinced the jury that his crime wasn’t premeditated, hence the manslaughter conviction and not murder. Maybe the jurors saw it as a crime of passion, though I’m skeptical both of the validity of such a defense and of its application in Vicky’s case. From the information I have, his crime was premeditated. Either way, a few years’ imprisonment for taking Vicky’s life was cruelly ludicrous.

An adversarial system has inherent flaws. Above all, it concedes that perfect justice can’t be the objective. It might well come close in many if not most, cases, but all the rules of court can’t hide the fact that what takes place is open combat between the prosecution and defense. To paraphrase Winston Churchill’s dictum about democracy, our American and English systems are the worst forms of justice, except for all the others.

I still believe in protecting a defendant’s rights and that an adversarial approach reduces the likelihood of sham prosecutions and mob vengeance. But reason stands little chance when private grievance and social justice collide. When it came to Vicky’s ex-boyfriend, I wanted revenge, less for myself than for her family.

Presidential candidate Michael Dukakis, who opposed capital punishment, was confronted with a hypothetical along these lines during the second debate of the 1988 election campaign. Asked whether he’d change his mind if his wife were raped and murdered, he said no, and backed up his answer with statistics. His failure, or refusal, to show emotion in the face of such a shocking question contributed to his defeat by the first George Bush.

Although we want our leaders to state policy positions, we also want them to be the guy we’d like to have a beer with—the George W. Bush test. Dukakis’s answer was too abstract to satisfy that test. It’s a test that’s easily mocked, but it does have some value. A politician who claims to have the one right answer but shows no sign of a beating human heart should frighten us. If we learned nothing else from communism, it’s that. Yet Dukakis was no communist, and it was the beer test that gave us the elder George Bush’s presidency.

When I learned of Vicky’s death, I wondered if my belief in criminal defense work would be shaken. It wasn’t. But it did cause me to think about how I expressed my beliefs. Before, I’d been defiant when people I met at parties and elsewhere asked how I could represent someone I believed to be guilty of a heinous crime. After Vicky, I’d acknowledge misgivings before reasserting the need for all people accused of crimes to be defended. When we change how we talk about something, it must mean, however slight the shift may seem, that something in our heart and mind has also changed.

Postscript

Howard Eisenberg and I corresponded for several years after my summer clerkship, but our paths never crossed again and we fell out of touch. Once I tracked him down at the University of Arkansas Law School. When I told him how pleased I was to find him, he pointed out it wasn’t that hard. Typical Howard. He died after a heart attack in 2002 at the age of fifty-five. I found out only a few months ago. He was so admired in Wisconsin and beyond that Marquette Law School devoted an entire issue of its law journal to him and his achievements.

On reflection, this essay is my memorial to Howard and Vicky, two larger-than-life people who live on in my heart and mind and in those of many others. I miss them.