Wednesday, February 5, 2014


                I recently read a book on something called “creative” nonfiction. The idea of creative nonfiction is to tell a true story but tell it like it’s a novel or a short story. Several times I have picked up a book which purported to be a work of history, and it read like fiction. I would usually throw the book down and walk away from it. I want my history to read like history, not a novel. If you’re trying to get as close to the truth of what happened as possible, you’re not going to make it writing “creative” nonfiction. Although real life is more interesting to me than a novel, real life seldom follows a neat plot. Imposing such a plot on history turns history into fiction.
                This is a rather rough literary transition here, but hang with me. I’ve had some interesting cases that I’d like to write about, but I don’t want to embarrass innocent people on the periphery of those cases. Therefore, despite the fact that I don't like "creative nonfiction." I have therefore decided to adopt a “creative” nonfiction approach to these stories. As Joe Friday used to say in the introduction to Dragnet, “The stories are true. The names have been changed to protect the innocent.”


                Even though he was too young to drink, Curtis Davis liked to go to Magnusson’s Bar—it had excellent pinball machines and a tranquil atmosphere. Although fistfights, knife fights, and occasional shootings were common in most bars of that era, John Paul Magnusson maintained order in his bar with an iron hand and a wooden blackjack. Davis was at one of those pinball machines one weekday afternoon when Michael Anders came in and sat at the bar. Anders ordered a beer. He sat there nursing the beer for a few minutes, and then he got up and went back outside to his pickup truck. At the pickup, Anders pulled out his .22 revolver and stuck it in his waistband. He went back in, sat at the bar, and ordered another beer. When Magnusson brought the second beer, Anders asked him, “Do you remember last week when I was in here and got into an argument over a pool shot?” Magnusson didn’t answer. “You hit me in the head with a blackjack and threw me out of the bar, remember?” No response from Magnusson. “I told you I was going to come back and kill you. Well, I’m here to do it.” Anders pulled his revolver and shot Magnusson full in the face. Magnusson fell face down behind the bar, and Anders walked around behind the bar and stood over him. Anders then fired three more shots into the back of Magnusson’s head. He put the revolver back into his waistband, walked out to his pickup, and drove off. Young Davis saw and heard everything.
                Deputy Frederick Masters was on routine patrol when he received the BOLO (“be on the lookout”) for Anders’s pickup. Masters knew where Anders lived, so he headed in that direction to see if he could find him. It wasn’t long before Masters saw Anders’s truck driving down the road. He put on his blue light and pulled Anders over. He approached Anders sitting in the pickup and told him “You’re under arrest for attempted murder.” Anders replied, “Do you mean to tell me that son-of-a-bitch isn’t dead? I meant to kill him.” Masters got him out of the pickup, removed the revolver from his waistband, handcuffed him, and put him in the caged-in back seat of the patrol car. Masters then unloaded the revolver and secured it. As he was driving Anders to the jail, Anders asked “Was there any live bullets left in the revolver?” Masters replied, “A few.” Anders thought a moment and then said, “I wish I’d known that. I’d have shot him some more. I meant to kill that son-of-a-bitch.”
                When Masters got Anders to the jail, he turned his prisoner over to Stanley Hopkins, who was charged with conducting the investigation. Hopkins took Anders into the interview room and advised Anders of his rights. “You know you’re under arrest for attempted murder?” Anders replied, “Yeah, I know. I’m sorry he’s still alive. I meant to kill him.” Hopkins then proceeded to take a written statement from Anders in which Anders recounted a story almost identical to the statement given by Curtis Davis. Anders ended his statement by saying “I wish I had realized that there were more bullets left in the revolver. I’d have shot him some more. I want him dead.”
                By the time I got to the jail to talk to Anders, two things had happened. Magnusson had died from his injuries and Anders had sobered up. Anders had worked his way to the second level of justification that defendants charged with violent crime go through. When the shooting occurred, Anders was drunk and angry, and that’s all the reason he needed—level one. After he sobered up, Anders realized that intoxication and anger don’t justify a shooting, so he moved to the second level justification—Magnusson deserved to be shot. Anders told me that Magnusson had it coming because he was a violent man who regularly beat up his patrons for no apparent reason. We discussed Anders’s excuse at length, and I assured Anders that “he had it coming because he beat me up last week” was not a defense that the law currently recognized. This brought Anders to the level three justification—self-defense. Anders told me that Magnusson had a reputation for knocking people’s heads together, that Magnusson kept a blackjack and a pistol underneath the bar, and that Magnusson was going for his pistol when Anders shot him. He had some difficulty explaining the three shots to the back of Magnusson’s head. The best Anders could do was to claim that he was so gripped by fear that he just couldn’t remember exactly what happened after he started shooting. I went out to the bar to investigate and found Stanley Hopkins there measuring the dimensions of the bar so that he could draw an accurate floor plan for use at trial. While there, I discovered that Anders was correct. Magnusson kept both a handgun and a blackjack under the bar.
                Here’s the defense attorney’s dilemma. Your client tells you a story which lacks plausibility. You have your doubts about it, but you don’t really know if it’s true or not. The truth of the story is important because the canons of ethics forbid lying. What do you do? You tell yourself that you weren’t there, you don’t really know what happened, and your client just may be telling the truth. You therefor reserve judgment and present his story as persuasively as you can. Sometimes that implausible story is actually true. I had several cases where my clients told me outlandish stories which ultimately proved to be true. Despite the implausibility of Anders’s self-defense claim, I presented it to the jury.
                The first attempt at getting the case to trial ran aground before we could question the first juror. Davis didn’t respond to his subpoena and wasn’t in court the morning of trial. He had moved out of the county and left no forwarding address. This was fine with me, because I really didn’t feel ready for trial on that day. I had moved for a continuance several times, but the judge had shot me down every time I asked. Now the prosecutor was asking for a continuance. My response was a somewhat hypocritical objection to the motion. I really didn’t want to go to trial, but at that stage of my career the conventional wisdom was “If the prosecutor asks for it, you must oppose it or you are not doing your job.” I also felt a little guilty because I knew something that the prosecutor didn’t know. I knew where Curtis Davis was. Our investigator Grover Lamar “Poss” Lee (real name) had tracked the young man down and gotten his address. Something inside me told me that if I was really going to play fair, I ought to tell the prosecution where Davis was so we could get on with the trial. But a louder voice told me it wasn’t my job to help the prosecution prove its case. Despite the fact that I never told the prosecutor where Davis was, they eventually found him and reset the case for trial.
                The trial got off to a rocky start. I hadn’t really given much thought to the fact that Anders had an artificial leg, but apparently he had. He took the leg off and came to court on crutches. Both the judge and the prosecutor thought that I had talked Anders into removing his leg to curry favor with the jury. I assured them that I had done no such thing, but I don’t really think they believed me. When I chewed Anders out for getting me into trouble, he pulled up his pants leg and showed me that the end of his stump was red and raw. He said that the artificial leg had chafed his stump to the point that it was painful to wear. When Anders testified, the prosecutor asked him several sarcastic questions about the artificial leg, clearly suggesting to the jury that Anders was looking for sympathy. I probably could have objected and had the questions stricken, but I had another way to deal with the prosecutor’s suggestions. On redirect examination I had Anders pull up his pants leg and show the jury how reddened his stump was. I don’t think Anders convinced the judge or the prosecutor, but I do believe he convinced the jury.

                At every recess throughout the trial, the judge kept making a remark that both discouraged me and encouraged me: “This is a classic case of first degree murder! It’s too bad that there aren’t any aggravating circumstances.” As the judge saw things, Anders was going to get convicted of first degree murder, but he was going to escape the death penalty. The jury disagreed with the judge. They found Anders guilty of second degree murder. Maybe the crutches had something to do with it. Maybe Magnusson’s reputation had something to do with it. Maybe blind staggering luck had something to do with it. I'm relatively certain that the dazzling brilliance of his defense attorney had nothing to do with it.
                I may have had a shot at getting the jury to come back with manslaughter, if the judge had let me make the argument I wanted to make. There is a Florida Statute (Fla.Stat. § 782.11) that says when you unnecessarily kill someone while acting in self-defense, the crime is manslaughter. I asked the judge to give the jury a special instruction to that effect, and he refused. I thought that his ruling gave me a great point on appeal, but the appellate court ruled that the judge properly denied my requested instruction.
                Although few people would call a Second Degree Murder conviction a defense victory, both Anders and I were happy. Florida still had parole back in those days and people serving life sentences could expect to get out in seven years if they misbehaved. That certainly beats the penalty for First Degree Murder—life with a mandatory 25 years before coming eligible for parole. Anders got out on parole after serving about ten years, but he couldn’t behave and wound up going back to serve the rest of his life sentence.