Book Three / 6
♦
The hearing on Anders’ motion for a new attorney had been held in July, and the judge had entered his decision in her favor. Several weeks remained before the deadline for the State to announce whether to seek the death penalty for these two defendants, and for new counsel for Anders to be confirmed.
No case in our state had yet placed the question squarely before the Supreme Court of whether a trial court must order that available mitigation evidence be given to the prosecutor to assist his decision. And it was not clear how the judge would rule on the issue if it were before him. At this point, the most likely scenario was that if Anders’ new attorneys, once appointed, could not convince her to change her position, then the prosecutor would not receive the mitigation binder. He would have no opportunity to see or hear the stories of Anders’ family history. Almost certainly he would decide to file his notice of capital proceedings and pursue the death penalty.
Further, if Anders’ rights extended to keeping mitigation evidence not only from the prosecutor at this stage but from a jury at sentencing, then her story would remain sealed. Whether mitigating of her actions or not, the information her attorneys were required by law to obtain might never play any role in the ultimate determination of an appropriate punishment.
Without the chance I had been given to read about Anders’ life, I would have continued thinking of her in the one-dimensional way I had developed as a result of my exposure to her through her courtroom appearances only. Without an awareness of the broader circumstances in which her life appeared to have developed I would not have had the opportunity to gain insight into Anders’ family and her childhood with them. But it was precisely that insight that brought Anders alive for me, so to speak, that made her human in my eyes and helped me to understand her actions.
In other words, the experience of reading mitigation materials had illustrated their significance and their purpose in capital murder trials. It was as though the proverbial veil was lifted from my own face, allowing me to see this difficult defendant with eyes that could penetrate through the facts of a brutal offense to the whole individual behind them. Without that exposure to the information about Anders’ life, I would not have connected to the case and to the defendant in a manner that would compel my interest in her as an individual. Without exposure to that information, the prosecutor would be deprived of a broader comprehension of the individual whose life was now in his hands to preserve or risk. And without exposure to that information, a jury might be unable to understand the entirety of the defendant’s circumstances and the reasons to spare her life.
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At the end of this preliminary decision stage, if the prosecutor chose to pursue the death penalty, Anders’ new attorneys would turn their efforts toward saving her life. Their greatest task, given Anders’ rough personality, would be to filter the repulsive and unsympathetic personality, to weave the repugnance of her character and her crimes into the fabric of their story of her life.
This task was frequently the challenge of defense attorneys representing criminal defendants who appear in court with an overlay of mental illness not readily apparent to judges and lay jurors. Often, even the juror who wants simply to understand on some level the psychology of the struggle a defendant has fought and lost — to stand in that person’s shoes, as the maxim would have it — even that juror will struggle to the very end of deliberations against his disgust with a defendant whose narcissism and shrill insistence on being heard are so entirely unattractive.
We want our defendants, after all, to appear deserving of our compassion. This is what Michael Wade’s attorney had meant when writing his sentencing brief on behalf of a client who’d been convicted for robbery of an old man in his own home. The attorney had lamented the problem of unsympathetic characters in Socialist fiction. He knew that we all, not just jurors but judges as well, feel more comfortable with characters who appear before us like the attractive downtrodden of popular culture.
In movies, for instance, defendants appear on screen as beautifully anti-heroic, almost romantic in their self-destruction. We see them first as they struggle against the system, but then watch as they break through to a new understanding of themselves, surrounded by encouraging, sympathetic friends. Finally, through submission to the reality they face, they prove that they deserve society’s assistance. They reach out to those around them, allowing themselves to be saved. Sitting among the audience, we are comforted by this outcome. We can imagine ourselves in one of those two cinematic roles, and believe that our own conflicts would resolve that way.
The story is a familiar one, and in fiction the tension arising from a forced choice between switching to the right behavior or sticking with the wrong nearly always resolves into the relief of a choice we approve. The defendant has transformed himself into a person we can trust, and we throw our support behind his success.
In reality, however, when individuals who have faced genuine hardship appear before us as real defendants in a real court of law, their actual personalities provoke in us not an opportunity for true moral deliberation but an occasion for our embarrassed retreat. We observe their tough conduct, listen to their speech studded with stutters, street slang, and immigrant accents, witness their discomfort and denial, their poverty, and then fail to find a hook on which to hang an impartial judgment.
As criminal defense attorneys understand, most defendants do not appear in our court fresh from finishing school. Or rather, they do – but not from the type established historically by wealthy Old World families. The criminal defendants we see each day have arrived to court from a different finishing school. When the streets are finished with them, when their families and communities are finished with them, when military service and its traumas are finished with them, and, finally, when public services are finished with them, they arrive at our jails and our courts. When we finish with them they are the criminally convicted.
From that point on, even if prison is not their new home on account of overcrowding or early release, their status and experiences with the criminal justice system practically guarantee that their lives will fail to improve.
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Several years before the murders on Christmas Eve of Anders’ entire family, Anders had tried to build from scratch a small custom car-detailing business. She developed the business with her brother, and together they had named their shop “Pure Evil Customs.” In the weeks following her arraignment for the murders, a man had remarked to a newspaper reporter that Anders herself was simply pure evil.
Far from the single dimension of blameworthiness suggested by that judgment, however, Anders’ culpability was more a shadowy and nuanced combination of character and personal circumstances. If evil exists, and if it existed here, then there was certainly nothing pure about it. In a person, any evil is diluted by a vestigial longing to fit in, to feel loved and to be at home in the company of others. That longing lingers even in the most anti-social individual among us who years ago buried it too deep to be seen.
If necessary, and if possible, Anders’ new attorneys might use the mitigation evidence to argue that her evil, if it existed, was a human creation, born of a forced infliction of intolerable experiences upon a child who had no choice but to endure them, a child who — in her tolerance of the intolerable — learned to distort her perception of its purpose and its pain. Her constant claim that no one understood her was merely her code. What she meant was that she herself did not understand others, did not understand why those she loved did not love her but seemed, instead, intent on breaking her down.
As the ancient Greeks understood and famously dramatized, when the childhood pain of not understanding abuse becomes the adult vengeance upon the abuser, the community on whose stage the vengeance plays out becomes both a witness to the crime and a third party accused. From that community comes a jury that will judge the defendant. A jury that will decide whether the full complement of moral culpability must, in the end, be brought to bear upon not only the accused but also the accuser. Upon the individual convicted of the crime and the society whose early indifference to that individual’s plight condemned her.
Soon that drama would be in the hands of a new defense team for Anders. The success of their efforts would be partially revealed through the management of their client’s difficult demands, at play upon the stage of an open court.
♦
The Sun Do Shine 