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Jailhouse Lawyer
by Phillip M. Margolin

"I'm Lyle Richmond and you're listening to Talk Radio. My very special guest tonight is six-foot-five, has a full head of wavy grey hair, steely blue eyes and the squarest chin this side of Mt. Rushmore. If I also said that he is wearing a Stetson hat, a bolo tie and Ostrich leather cowboy boots, I'd bet that most of you in my listening audience would guess that we're going to be speaking to criminal defense attorney Monte Bethune. He's visiting us just one week after winning a stunning acquittal for Iowa Governor Leona Farris, who shot her husband in front of millions of viewers on national television.

"Welcome to the show, Monte."

"Thanks for having me on."

"Did your lucky outfit win the Farris case for you?"

"I wish it was that easy, Lyle. I give all the credit for the governor's acquittal to the jurors, who were able to see through the government's smoke screen and find the truth."

"I'm sure you had a little part in leading them through that screen of smoke, Monte."

"I try, Lyle."

"Our listeners will be pleased to hear that you're in our fair city on a book tour to promote your autobiography, The Best Defense. They can meet you tomorrow afternoon at Benson's Books on Comstock and Vine from three o'clock to five."

"That's right."

"How's the book doing?"

"The Best Defense is going to debut at number four on the New York Times bestseller list, this Sunday.

"Congratulations. And I can tell our listeners that it deserves to be there. This is some terrific book "

"Thanks, Lyle. I wrote it to try and give my readers an idea of what it takes to try high-profile lawsuits.

"You certainly do that. The chapter describing the way you won that forty-million-dollar verdict against Dental Pro had me on the edge of my seat."

"My clients deserved that verdict. It was only by sheer luck that my investigator was able to prove that Dental Pro was using radioactive materials to make their dental implants."

"You were up against some high-priced legal talent in that case."

"It seems that the other side always puts its best lawyers against me."

"Sort of like those showdowns in the Old West where the young gunslingers would call out the fastest gun. You always beat them to the draw, though."

"Not all the time, Lyle. I've lost my share. I even talk about some of those losses in my book."

"The Chicago Strangler case."

"That's right. There was a case where I was definitely outgunned by a bright, young D.A."

"That was Everett Till, wasn't it?"

"The current governor of Illinois. Every time we meet, Everett thanks me for putting him in the statehouse."

"Is Till the best you ever went up against?"

"Whew. That's a tough question to answer, Lyle."

"Is that because you've been up against so many hotshots?"

"No. That's not the problem. Everett is definitely the lawyer who tried the best case against me, but he's not the best person I ever faced in court."

"I don't get you, Monte."

"The best person I ever tried a case against wasn't a real lawyer. He was a jailhouse lawyer."

"What's a jailhouse lawyer?"

"A con. Someone who learned his law while serving a jail sentence."

"You mean a crook?"

"Exactly. But this fella was one very smart crook."

"I sense a story here, Monte. One that didn't find its way into The Best Defense."

"You've got me there. I guess the problem is that this story is a little embarrassing."

"Spill, Monte. I'm sure all my listeners would love to hear about a convict who could get the best of the best lawyer in the U.S.A."

"Okay, Lyle. I don't mind telling tales on myself, and this case was tried when I was still a little wet behind the ears. Not that I would have seen what was happening even with all my experience."

"Let's hear it, Monte."

"Okay. Now, this happened in 1970. 1 was two years out of law school and two years into my stint as a deputy district attorney in Portland, Oregon. You're a little young to remember those days. The war in Vietnam dominated everything. Then, there was Black Power. Bobby Kennedy and Martin Luther King had been assassinated and every day brought more riots and protests. I guess you could say that there was general chaos across the United States, with the exception of the Multnomah County District Court, where I was stuck trying shoplifting cases, drunk drivers and other boring misdemeanours.

"I was specializing in traffic cases on the morning I was assigned State of Oregon v. Tommy Lee Jones. It had been a rough week After a string of victories, I had lost two tough Driving Under the Influence cases, back to back, and I needed a win. A big smile crossed my face when my supervisor told me that Tommy Lee was handling his case Pro Per. That means by himself, without a lawyer. There's an old maxim I'm sure you've heard that holds that a lawyer who represents himself has a fool for a client. That maxim is doubly true for a jailhouse lawyer. Knocking off a top defense attorney was more satisfying than steamrollering a poor fool who thinks that he's Perry Mason, but a notch was still a notch.

"District Court Judge Arlen Hatcher's courtroom was on the third floor of the Multnomah County Courthouse, an intimidating concrete monster of a building that takes up a whole block in the center of Portland. The older courtrooms are stately, with marble cultures and polished wood. Hatcher, a career prosecutor before his judicial appointment, had only come on the bench eight months ago. He was stuck in a newer courtroom that had been squeezed into a space previously occupied by an administrative office. Plastic and imitation wood dominated the decor.

"Two long counsel tables stood before the judge's dais. Tommy Lee was sprawled disrespectfully on a chair in front of the table closest to the jury box. His wild Afro, scraggily goatee, and soiled jail clothes made him look fierce. Any lawyer worth his salt would have made certain that Tommy Lee shaved and came to court in a suit, but Tommy Lee could not afford to hire an attorney and he refused to let the court appoint one.

" 'You the pig they sent to pers'cute me?' Tommy Lee snarled when I walked to the other table. His bravado didn't faze me, and I flashed him a patronizing smile.

"Simmer down, Tommy Lee,' warned one of the two jail guards who were assigned to watch the prisoner.

"If you're wondering why Tommy Lee was so heavily guarded when the charge was only reckless driving, you might be interested in knowing that two months after the traffic citation was issued in Portland, Tommy was rearrested on a fugitive complaint out of Newark, New Jersey, that charged him with murder. Tommy Lee was also handling his extradition battle by himself.

"The bailiff rapped the gavel and Arlen Hatcher stomped in. The judge was tall and lean and walked with a slight limp. His cheeks were sunken, his eyes narrow, and his thin lips curled into a wolfish grin whenever he overruled a defense objection. Judge Hatcher loved to bedevil defense attorneys, and he was always happiest at a sentencing.

"I jumped to my feet when Hatcher took the bench, but Tommy Lee stayed seated. Old Arlen fixed the defendant with his death stare. Tommy Lee didn't blink.

"'Please stand when the judge enters,' the bailiff ordered menacingly. Tommy Lee uncoiled slowly, his eyes still locked on the judge. When he was fully upright, I called the case and the judge told the bailiff to call for a jury. That was when Tommy Lee made what I thought was his fatal mistake.

"'I don't want no jury,' he said.

"'What?!' Hatcher asked incredulously.

"'One pig or six fascist sheep, it don't make no difference.'

"Old Arlen turned scarlet. 'You ever hear of contempt?' he growled. 'One more reference to barnyard animals and you'll be an expert on it . . . Mr. Jones.'

"Now, I'm certain that 'Mr. Jones' was originally 'boy,' but Hatcher quit calling Afro Americans 'boy' on the record after the Oregon Supreme Court reprimanded him. Actually, Hatcher wasn't any more prejudiced against blacks than he was against any other defendant.

"That was another reason why I thought that Tommy Lee was a fool for defending himself. He needed a lawyer who knew the ropes. Hell, with a client like Tommy Lee, any lawyer in the county would have swallowed nails before letting Arlen Hatcher handle the case.

"'You understand that you have a constitutional right to have your case tried by a jury of your peers?' Hatcher inquired.

"'Whatcho think? I ain't dumb. I also know I have me a right to not be havin' no jury.'

"A gleam appeared in Hatcher's eye, and his lips twitched from the effort of suppressing his glee at having Tommy Lee's fate thrust into his hands. I could almost hear him calculating the maximum sentence he would be able to impose after he found Tommy Lee guilty.

"'Very well, Mr. Jones,' Hatcher said, 'I'll be glad to hear your case. Are you ready to proceed, Mr. Bethune?'

"My only witness was Portland Police Officer Marty Singer, a big happy-go-lucky man, who was painfully honest. Marty always told the truth on the stand. Some deputy district attorneys complained that Marty's honesty had cost them cases, but I preferred him as a witness because jurors always believed him.

"As soon as he was sworn, I established that Marty was working as a traffic patrolman on February 8, 1970. Then I asked him if he had made an arrest that night in downtown Portland for reckless driving.

"'At 9:35 p.m., I was on patrol on Salmon near Third,' Singer said, 'when I saw a vehicle weaving in and out of traffic at a high rate of speed. I put on my lights but the car continued to drive erratically for a block or so before it pulled over.'

"'What did you do then?'

"'When both cars were parked, I exited my vehicle and approached the driver. The first thing I did was ask him for his license. While he was trying to extract the license, I leaned close to him and smelled the odor of an alcoholic beverage on his breath. This, coupled with his erratic driving, made me suspect that the driver was intoxicated, so I asked him to exit his vehicle.'

" 'Did you ask the driver to perform my field sobriety tests?'

"'I did,' Singer replied.

"'What did you ask him to do?'

"'I had the driver walk a straight line, count backward from one hundred, and repeat several words that are difficult for impaired drivers to pronounce.'

"'How did he do?'

"'To my surprise, he passed all the tests. That's why I charged him with reckless driving instead of driving under the influence of intoxicants.'

"'Officer Singer, did you examine the driver's license?' I asked.

"Yes, sir.

'Who was named on it?'

'Bobby Lee Jones,' Singer answered.

"My heart dropped into the bottom of my brilliantly polished wingtips.

"'Er, you mean Tommy Lee Jones, don't you, Officer?' I asked, in order to give Singer a chance to cover his gaff.

"'Singer looked confused. 'I'm . . . I think it was Bobby Lee,' he said. Then he brightened. 'But, later, he said he was Tommy Lee Jones.'

"'Later?'

"When I said that I was going to arrest him.'

"'Then the driver said that he was Tommy Lee Jones?'

"'Right. He told me that he had borrowed his brother's license without his permission.'

"I breathed a sigh of relief and pointed at the defendant.

"'Is this the man that you arrested?'

"For the first time since Singer had begun his testimony, Tommy Lee came alive. He sat up straight and stared at Singer as if daring him to make the identification. Singer hesitated.

"'Yes,' he answered shakily, 'I think that's him.'

"If this had been a jury trial, Lyle, I would have been dead after Singer's crappy identification, but old Arlen hadn't heard a word since Tommy Lee called him a pig. Hell, Singer could have testified that the driver was a Caucasian dwarf and it wouldn't have made my difference as far as Tommy Lee's fate was concerned.

"'Did you arrest the driver and take him to jail?'

"'No, sir. He was polite and cooperative, so I gave him a citation, told him his court date, and let him go home.'

"'One last question, Officer,' I asked. 'Did something happen before the defendant's court date that caused him to be taken into custody?'

"'Yes. He was picked up on this murder case out of New Jersey.'

"Of course, this was all totally improper, mentioning the murder. A real lawyer would have objected and asked for a mistrial. But all's fair in love and war. If Tommy Lee wanted to represent himself, he'd have to live with the consequences of his decision. To my delight, I could see Judge Hatcher writing the word 'murder' on his pad. He circled the word a few times. Then he gave Tommy Lee another dose of the death stare.

"'No further questions,' I said.

"Now, a good defense lawyer would have made mincemeat out of Singer's I.D. and would have had a good chance to win the case, but Tommy Lee seemed to be his own worst enemy. First, he put on his fiercest face. Next, he stared at Singer menacingly. Then, he began to insult my witness.

"'Ain't it true that you told the brother you stopped, who ain't me, that you would fix his case for fifty bucks?'

"'That is not true,' Singer answered, as his ears started to glow. Marty went to church regularly and he took the teachings of the Bible to heart. Accusing him of dishonesty was one of the worst things a person could do.

"'How much you say you'd charge him, then?'

"I objected, Hatcher whacked his gavel down hard, and the trial continued with Singer and the judge glaring at Tommy Lee.

"'You say that this so-called arrest was on February 8, 1970?' Tommy Lee asked, his tone heavy with sarcasm

"Singer nodded.

"'You drunk or shootin' up, like you usually do on that date?'

"Hatcher smashed his gavel down before I could object.

"'One more impertinent question like that,' he warned, 'and I'll hold you in contempt. This is an officer of the law up here. Show him some respect.'

"Tommy Lee leaped to his feet.

"'I got no respect fo' a honkey pig who perjures hisself and say he be arrestin' me when I wasn't there,' Tommy Lee screamed.

"'The two guards wrestled Tommy Lee back onto his chair. Singer was seething. Hatcher had begun to drool. I just sat back and enjoyed the show. With each word he spoke, Tommy Lee was digging himself a deeper grave into which I knew I would soon be booting his body.

"'How come you so sure you arrested me?" Tommy Lee challenged when all was calm again.

"'I remember you,' Singer said, a lot firmer in his identification than he had been when I had questioned him.

"'Don't all us niggers look the same to you?' the defendant asked with a sneer.

Singer was really angry now. '"I have no problem distinguishing one black man from another, Mr. Jones,' he replied firmly.

"'Ain't it really true that the man you stopped was my brother, Bobby Lee, who gave you my name to beat the rap?' Tommy Lee asked, violating a rule that every first year law student knows. Every time Tommy Lee challenged Singer's identification, he was giving the officer an opportunity to restate his opinion that Tommy Lee was the person that he had arrested.

"Singer looked grim and shook his head. He was adamant now.

"'You are the person I arrested, Mr. Jones.'

"Tommy Lee swung around toward the back of the room and pointed to a black man who was seated them

"'Ain't it him you stopped?' he challenged.

"Singer studied the man. His hair was neatly clipped and he was clean-shaven. He was dressed in a three-piece business suit, a white silk shirt, and a maroon tie. He was everything that Tommy Lee was not, and it only took Singer a moment to answer the defendant's question.

"'That is not the man I arrested.'

"'You still sticking to your nonsense story that it was me you stopped on February 8, 1970, even after bein' face to face with this man?' Tommy Lee asked incredulously.

"'It was definitely you that I stopped.'

"The verdict was a foregone conclusion. I never saw anyone bury himself so badly in all my life. I rested and Tommy Lee had no witnesses. At least he'd had the common sense to stay off the stand. At the time, I thought that was the only thing he had done correctly. Hatcher took all of half a minute to find Tommy Lee guilty."

"I'm confused, Monte. I thought you said that this Tommy Lee guy was the best you've ever gone up against in court. It sounds to me like you pounded him into hamburger meat."

"That's the way I saw it, too. I remember laughing my way through lunch as I told the other deputies about my victory. But Tommy Lee had the last laugh.

"I only saw him once more after his conviction. It was three weeks later. I was handling Criminal Presiding when the bailiff called Tommy Lee's extradition case. The man the guard led into the courtroom looked the same and was dressed in the same jail clothes, but his attitude was different. He smiled when he saw me and extended his hand.

"'You sure got the best of me, Mr. Bethune,' he said, and I noticed that the thick Negro drawl had disappeared.

"'I was just doing my job, Mr. Jones,' I assured him. 'Nothing personal.'

"'I'm aware of that,' Tommy Lee responded.

"Judge Cody took the bench and I told him that this was the time set for Tommy Lee to contest New Jersey's request that he be extradited to its jurisdiction so he could be tried for murder. Based on my experience with him in our court case, I expected Tommy Lee to come out swinging, but he surprised everyone by waiving extradition and agreeing to return to New Jersey voluntarily.

"'You're certain that's what you want to do?" Judge Cody asked. He was very conscientious about protecting the rights of those who appeared before him.

"'Yes, Your Honor,' Tommy Lee replied politely.

"'All right,' the judge said. And that was the last I ever saw of Tommy Lee.

"But it wasn't the last time I thought about him. See, Lyle, I knew, in my gut, that something was wrong. He was just so different in the two court cases. The way he talked, the way he walked. What had caused Tommy Lee's transformation from a wild-eyed radical to a polite and well-mannered citizen? That question really bothered me, but it wasn't until a little before quitting time, two weeks later, that I figured it out.

"Tommy Lee and the well-dressed black man he said was his brother did look alike. It was the wild Afro and the soiled jail clothes and the radical-black histrionics that had thrown me off. Had Officer Singer really arrested Bobby Lee Jones? Was Tommy Lee taking the rap for his brother? That was the logical explanation. Bobby Lee looked successful. Tommy Lee was a bad actor with a long record of arrests and convictions. That was it, I decided. Tommy Lee was taking the fall for brotherly love. It made me think better of him. For a moment, I felt a warm glow.

"Then a warning bell began tinkling in my subconscious, and I suddenly felt an attack of nausea. The extradition file was in a cabinet on the other side of the office. I raced to it and my hand shook as I grabbed the manila folder from the drawer. I prayed that I was wrong, but I was certain that I wasn't. As I read the extradition warrant, I could see Tommy Lee pointing at Bobby Lee Jones as he asked Marty Singer, You still sticking to your nonsense story that it was me you stopped on February 8, 1970, even after bein' face to face with this man?

"And I recalled Singer's firm and unequivocal response: It was definitely you that I stopped.

"You see, Lyle, that murder. The one that took place clear across the country, three thousand miles away, in New Jersey. According to the extradition papers, it was committed on February 8, 1970."

 

 

JailhouseLawyer

Afterword

For twenty-five years, I had a full-time criminal defense practice. During that time I handled every type of case imaginable, from bizarre traffic citations like "Television in Front Seat Viewable by Driver" to a dozen death-penalty murder cases. I also came in contact with every type of client. Although they are generally a pain in the neck, I do have a fond place in my heart for jailhouse lawyers. These are criminal defendants who have picked up a smattering of law during their years behind bars. They believe that they know more about law than their lawyer -- and sometimes they are right.

Early on in my career, I was appointed to represent a jailhouse lawyer who was being held in jail on serious charges. I made it clear to him that there was no way in the world that any judge in the courthouse would ever release him on bail. Moments later, he fired me and represented himself in court. The next day, I ran into him in the lobby of the Multnomah County Courthouse in Portland, Oregon, where I tried most of my cases. I was astonished to see that he was out of jail, and he explained to me that he had convinced the judge to release him on his own word to appear in court. That incident convinced me never to take the intelligence or skills of jailhouse lawyers for granted.

The story you have just read is my tribute to these loony lawyer wanna-bes, who, every so often, prove to be a lot sharper than we law school graduates.

Phillip M. Margolin





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