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4.2.12
WC: 191694

This chapter tells the story of some of the many murder and attempted murder cases I have litigated over the past 50 years. In many of them, I use science not only as a shield to protect my client, but also as a sword to prove misconduct on the part of the prosecution, police or laboratory technicians. Some of the cases are well known. Many are not. All of them are intriguing.

Most of my cases have been appeals from convictions. I’ve done a few trials and I wish I could have done more, since I love developing evidence and arguing to juries, but my teaching commitments are far more conducive to arguing hour-long appeals than month-long trials.

My emphasis on evidence, particularly scientific evidence, led me, early in my career to realize the traditional way of arguing appeals did not maximize the chances of success. The rules for an appeal provide that only errors made at trial and preserved as part of the trial record may be raised and argued on appeal. All other issues, such as newly discovered evidence, ineffective assistance of counsel, prosecutorial misconduct discovered after trial, must be raised on what is called “collateral attack”—by a writ of habeus corpus or other such procedures. I quickly came to realize that appellate judges, like all human beings, care more about whether a defendant is guilty or innocent than whether there was a technical mistake at the trial. This perception was solidified by the approach many judges, such as the well respected Henry Friendly, espoused: namely that innocence or guilt should play a greater role in reviewing convictions than what they called “technicalities.”

Accordingly, I developed a technique, which has now been adopted by some other lawyers, under which I tried to combine the appeal and habeus corpus aspects of the case into one challenge to the conviction. As soon as I was retained to do an appeal, I gathered together a legal team that included investigators, law students and experts in other disciplines, such as medicine and forensics. I asked them to investigate the case from scratch. If the investigation then turned up new information suggestive of innocence, I would quickly file a habeus corpus petition and not wait for the outcome of the appeal. If the petition were denied, as they often were by the trial judge, I would then try to combine them into the appeal so that the appellate court would have a fuller view of the actual situation. I did this quite successfully in the Claus Von Bulow case. The court reversed that conviction not only because of errors made at trial, but because of new evidence of innocence that we had discovered after the trial. I have used this approach, often quite successfully, in many of my appeals, especially those involving homicides, where new evidence frequently emerges.

I suspect that some of my clients, including some whose cases I have won, have been guilty. I believe that some have been innocent. As to the majority, I am not certain. There is a myth that criminal defense lawyers always know whether their clients are guilty or not guilty, because guilty clients confess their guilt in confidence. This has certainly not been my experience. Of all the homicide cases in which I have been involved, only one client has confessed his guilt to me. I won that case on the basis of constitutional issues. I have never had a case in which I have helped to free a guilty client who then killed again. I tell my clients that under no circumstances will I ever represent them a second time.⁶⁴

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