Representing the reprehensible
By Seamus McGraw
Representing the reprehensible: Why do lawyers decide to get involved and risk their public images by taking on some of the most hated people in America as clients? A three-part lexisONE Special Report, June 2001.
Cathy Waldor, a New Jersey lawyer who specializes in death penalty cases, loathed Avi Kostner almost from the moment she met him. And she never made any secret of it.
He was, she said, perhaps the most manipulative and self-centered man she had ever met.
More importantly, he had committed one of the most heinous crimes she could imagine: After years of trying to win sympathy from the Bergen County family courts and the public by portraying himself as a loving father locked in a bitter custody dispute with his ex-wife, he drugged and then murdered his two young children during a weekend visitation in 1994.
Kostner was facing the death penalty, and Waldor had been asked to defend him.
"I could have said no," she said. But she didn't. Instead, Waldor plunged into the case. Using her client's own evil public image to her advantage and employing tactics that, to this day, she hasn't shared with her co-counsel, she managed to persuade a Bergen County jury that her client did not deserve to die for his crime.
Why did she do it? Why would any lawyer willingly take on a client who seems to be beyond redemption, who is considered in the public mind, at least, to be some sort of monster?
The answer, according to lawyers who have represented some of the most reprehensible clients ever to sit behind a defense table, seems to depend on the individuals.
Some, like Waldor, are willing to swallow their own disgust because a hateful client can provide a glimpse into a world they might not otherwise see. Waldor said it was the sheer, almost unthinkable horror of Kostner's crime that made her want to take his case in the first place.
"What I love about this work is that you're always learning something new," Waldor told lexisONE. "I wanted to understand why someone would kill their own children ... probably one of the worst crimes you can imagine."
Some feel a twinge of compassion for the client, said Adrian DiLuzio. DiLuzio, a Long Island, N.Y., trial attorney, represented Joel Steinberg, the drug-addicted Manhattan lawyer who was convicted of manslaughter in the high-profile 1987 death of his illegally adopted daughter Lisa. "I did it because I felt bad for the human being that was in there somewhere," DiLuzio told lexisONE.
Others such as John Rosen, the Toronto barrister who defended serial rapist and convicted killer Paul Bernardo, say they take on impossibly controversial cases because they feel a professional obligation to do their best to make sure that even the most despised client gets the best possible defense.
Others, such as William Kelley, the former Orange County, Calif., deputy public defender who made national headlines when he took on the case of former Marine Charles Ng, say they do it because they know they may never get another chance to handle so complex and challenging a case. Ng was accused of taking part in the murders of 12 people in California more than 15 years ago.
TACTICAL ADVANTAGE?
Regardless of the reasons they take the cases, there is, these lawyers contend, a kind of tactical advantage that comes with representing a client who is deemed reprehensible.
"You have the opportunity to show that the monster is really human," said DiLuzio.
Sometimes the gambit pays off.
In the Steinberg case, for example, DiLuzio said he managed to undermine the prosecution's carefully crafted portrayal of the man as a brutal Svengali who held his wife and daughter in an upscale prison of domestic abuse, showing instead, a man who DiLuzio believed was confused and tormented.
In the end, the jury rejected the most serious charge against Steinberg, and convicted him of manslaughter.
Other times, however, an erratic and loathsome client can reduce his lawyer's strategy to rubble.
That's what happened to Kelley when his client, Ng, insisted on taking the witness stand in his long-delayed murder trial. Kelley, who had built an image in the jury's mind of Ng as a weak and easily led accomplice in the string of horrific killings, could only look on helplessly as Ng showed himself to be an arrogant and in the jury's mind dangerous killer. Ng was convicted of 11 counts of murder, and was sentenced to die by lethal injection. He remains on California's death row, pending appeal.
Certainly, a good trial attorney can use the weight of his client's public persona to his advantage, said Rosen, who represented Paul Bernardo, the handsome and depraved serial rapist who, along with his wife, Karla Homolka, sexually assaulted several young girls, killing three of them in what is probably the most celebrated murder case in Canadian history.
But even the best lawyer only can do so much. Faced with damning testimony from Bernardo's wife, who had cut a deal with prosecutors, and with sexually graphic videotapes that the couple had made of their victims, Rosen's client was convicted of murder and now is serving a life sentence without parole eligibility for 25 years.
The sensational case, which dominated the media and outraged the public, raised at least one question for Rosen that had little to do with courtroom strategy and legal tactics.
PUBLIC PERCEPTION
What does a case like this do to the lawyer's image in the public's mind?
Rosen believes that the public understands that defense attorneys are as essential to the system of justice as police or prosecutors.
"I remember one day during the trial, I was walking down the street at lunch ... and a man walked up to me and said 'Are you that Mr. Rosen? Are you the one representing that Paul Bernardo?'" the barrister said. "I was ready to put up my dukes, but then he said, 'I just want to shake your hand. I don't agree with what he did, but I just wanted to say that you're doing a good job.'
"And you know," Rosen added. "He was literally the first of hundreds to do that."
PART II: DEFENDING A MONSTER
June 22, 2001
Sitting in a New York City courtroom, Adrian DiLuzio knew that he was facing one of the toughest challenges of his legal career.
Even under the best of circumstances, his client, Joel Steinberg, would hardly have been the sort to elicit sympathy from a jury. He was a well-heeled Manhattan lawyer. That alone would have been a strike against him with most juries. Steinberg also looked evil, courtroom observers have said; he was a man whose face seemed to be frozen in a perpetual scowl. And he was accused of a horrific crime, the 1987 beating death of his 7-year-old illegally adopted daughter, Lisa.
Yes, even under the best of circumstances, Steinberg's persona would not likely play well with the jury, DiLuzio said. And this was anything but the best circumstances.
By the time DiLuzio stepped into the case, New York City's ravenous tabloid newspapers and burgeoning tabloid television industry had already cast Steinberg as the devil incarnate, DiLuzio said. Even New York City's loquacious mayor at the time, Ed Koch, had weighed in on the case, suggesting to a reporter that Steinberg should be boiled in oil, DiLuzio said.
How can you adequately represent a client who, at least in the public mind, is reprehensible? Is there any way to snatch advantage from your client's own disrepute?
The answer is a qualified "yes," said DiLuzio and other lawyers who have found themselves in similar situations.
"You have the opportunity to show that the monster is really human," said DiLuzio.
But to a great extent, whether it works or not depends on both the skill of lawyer, and the cooperation of the client.
In the Steinberg case, DiLuzio found himself grappling with a client who had for months been villified in the press.
"He was pretty much the poster boy for evil," DiLuzio said. The newspapers and the nightly news broadcasts had already been saturated with pictures of his battered live-in lover, Hedda Nussbaum. Her blackened eyes and split lip, DiLuzio acknowledges, were received courtesy of his client. Her image had become almost an icon of American popular culture, the enduring image of a woman so battered and abused that she virtually lost her own will and carried out the orders of her boyfriend.
Then there were the oft-repeated details of Steinberg's cocaine abuse, and the chilling details of the case itself, how he had tossed his daughter against a wall, and how he had left the dying child on a bathroom floor while he went out for dinner, how he left her there while he sat in his living room freebasing cocaine.
Despite all that, DiLuzio says he saw an opportunity to present another side of Steinberg to the jury, one that would undermine the image of Steinberg as something less than human.
To DiLuzio, Steinberg was not a monster. He was a severely damaged and delusional man, brutal at times, to be sure, but most of all he was a man tormented by his own demons, DiLuzio said. He was drug-addicted and paranoid. Steinberg believed that Nussbaum would slip into trances, and he had delusions that Lisa was learning to do the same at Nussbaum's knee.
Even as the little girl lay dying on the bathroom floor, DiLuzio believes, Steinberg had convinced himself that it was all some sort of bizarre trick, that Nussbaum could snap the little girl out of her trance.
The question was, how could he best convey that image of Steinberg to the jury?
Throughout the trial, DiLuzio elicited testimony that challenged the prosecution's depiction of Steinberg as an almost preternaturally abusive and controlling despot. He used his words and body language to get the message across to the jury.
As he rose from the defense table to deliver his summation, DiLuzio, for just a moment, let his hand drop to Steinberg's shoulder. When he addressed the jury, he said, he made sure that he referred to Steinberg, the accused monster, as "my client and my friend." In effect, he says, he made the jury see Steinberg as a human being.
The gambit paid off.
The jury did not convict Steinberg of second-degree murder, the most serious charge he faced. DiLuzio says the prosecution simply never proved the elements of murder. Instead, Steinberg was convicted of first-degree manslaughter. For DiLuzio, that was a victory.
Of course it helped DiLuzio that his client implicitly cooperated with his strategy.
Not every lawyer is so lucky, notes William Kelley, the former Orange County Deputy public defender who found himself grappling during the costliest trial in California history with an equally despised, but far less cooperative client in Charles Ng.
In that case, Ng torpedoed his own defense, wiping out all the progress Kelley had made depicting Ng as a man who was not strong enough, emotionally or intellectually, to be anything other than a supporting player in someone else's sadistic murderous fantasies.
PART III: Villainy And Ego
June 29, 2001
In many ways, it was the case of a lifetime: a high-profile multiple murder, filled with allegations of sexual torture and slavery, played out in a remote cabin in the California hills; a defendant who, at least in the public mind, was already being compared with some of the worst serial killers in the nation's history.
William Kelley, then a deputy Orange County public defender, didn't have to take the case. He had just come off a series of challenging homicide trials, and he said what he really wanted to do was take some time off.
But Kelley was fascinated by the sheer complexity of the case against Charles Ng. There were truck loads of documents and box loads of briefs, compiled by teams of attorneys who had long since bailed out of the case. Just moving the files from one place to another was a logistical nightmare, Kelley said.
And there was Ng himself to consider a former Marine, who, according to Kelley, "had a great memory and that made him think he was smarter than he was." Ng was fighting for his life, charged with participating with an old friend in a dozen homicides in the 1980s, including the murder of women at a remote California cabin that the pair had turned into a torture camp.
The old friend, Leonard Lake, had committed suicide, leaving Ng alone to face the music for running a veritable backwoods death camp where they videotaped the victims of their sexual torture.
Ng, who fled to Canada, was sentenced to prison for a comparatively minor unrelated offense there, and then waged a six-year battle to avoid extradition to the United States. In the press, Ng was already being mentioned in the same breath as such notorious serial killers as Charles Manson when Kelley agreed to step into the case.
In the end, realizing that "a case like this might never come along again," Kelley decided to take the case.
BATTLING YOUR OWN CLIENT
With that decision, Kelley joined the ranks of battle-scarred trial lawyers who take on high-profile clients and then find they must not only undermine a prosecutor's case, but also fight their client's public image as a monster.
Kelley had another foe as well. His own client, he now says, ultimately sabotaged his own case.
"I'm sure he'd never admit it," Kelley said. "But I think Charlie knows that he blew it."
Kelley devised a plan to play up his client's own weak character to undermine his image as a depraved killer. Coincidentally, New York defense attorney Adrian DiLuzio had developed a similar strategy in defending notorious child-killer Joel Steinberg.
But Kelley's plan didn't work. Kelley and Ng never developed the kind of connection that DiLuzio established with Steinberg.
"Charlie ... didn't really trust me," Kelley said. In fact, their relationship got so bad that at one point, in what Kelley believes was a typical jailhouse lawyer's attempt to delay the trial, Ng successfully petitioned to have Kelley removed from the case. Ng later changed his mind, and an appeals court reinstated Kelley.
Throughout the trial, Kelley said, he tried to counter the portrayal of Ng as a monster capable of engineering a savage killing spree by depicting him as a follower who didn't have the ability to resist Lake's evil influence, Kelley said.
For a while, it seemed that Kelley's strategy was working. Kelley believed he stood a good chance of getting what he really wanted, a hung jury, which would have been his client's best hope of escaping the death penalty. "Even the prosecutors were getting worried," Kelley said.
But then, despite Kelley's most strenuous objections, Ng insisted on taking the stand and testifying.
It was a disaster, Kelley said.
All of Kelley's efforts to portray Ng as a kind of blind follower of Lake collapsed under the weight of Ng's apparent arrogance, and under a withering cross-examination by the prosecutor.
In the end, Ng was convicted and sentenced to die by lethal injection. He remains on death row pending appeal.
"He did it to himself," Kelley told lexisONE. Kelley, by the way, is now a sole practioner with one investigator who usually takes cases sent his way by the public defender's office.
WORKING WITH A VILLAIN
A clever trial lawyer always can find a way to turn a hateful client's most venal impulses into an asset. That's what New Jersey attorney Cathy Waldor did during the murder trial of Avi Kostner, a divorced New Jersey man who had suffocated his two children, Ryan, 10, and Geri Beth, 12, during a weekend visitation in 1993.
Kostner was a despicable and manipulative person, perhaps one of the most loathsome people Waldor had ever met. He was a man whose ego could not be contained, she said. In the newspapers, he had been depicted as a villain and a liar of monumental proportions.
Waldor detested Kostner, and never made any secet of it. "I even told that to the jury," she said. "Sometimes you just have to be honest."
But despite her personal feelings, Waldor had been hired to keep Kostner off of death row. To do that, she said, she needed to find a way to persuade the jury that, more than anything else, Kostner was a tortured and unstable man.
And so, she said, she played on his ego.
She decided to provoke him into emotional outbursts in the court room. In one instance, she elicited testimony that the man Kostner had believed was his father was not. "That was the first time Avi had ever heard that," she said. He began shouting in the courtroom, giving the jury a picture of a man who was not capable of controlling himself.
At another point in the trial, Kostner became upset over testimony he disagreed with and began muttering quietly to himself.
"I leaned over, and kept saying, 'No one can hear you,' until finally, in fury, Kostner jumped to his feet and starting shouting out loud," Waldor said.
It was, she said, a carefully calculated but secret strategy on her part. "I never even told my co-counsel that," she told lexisONE.
It paid off.
Kostner was spared the death penalty. But in what Waldor later described as a kind of rough justice, he died of cancer three years later in prison.
When she learned of his death, Waldor said simply, "No one will shed a tear for Avi Kostner."
Copyright 2001 lexisONE