"Documentary draws fire from Public Defenders"


1979 The American Lawyer

By Jeffrey Kaye

SEATTLE--"During this period of time, did you want to kill Big Man?" Attorney David Allen of the Seattle public defender's office waits for his client, Jack Jones, to answer. There is a long pause, and Allen, exasperated, finally answers his own question: "No."

"Okay, don't even think about that," suggests Allen. "I mean, it's so clear to me. I knew the answer, and I wasn't even sitting there." Jones, sitting in the King County Jail, accused of shooting Raymond "Big Man" Collins in a rundown Seattle hotel, laughs while Allen emphasizes his point. "If--hey--you--know, when he [the prosecutor] asks you tomorrow, or we ask you tomorrow, we say 'Did you intend to kill Big Man before all this?' and you go, 'Well, let me think' --you know--forget it. I'm gonna get a towel out of my briefcase and I'm gonna throw it right in the middle of the courtroom."

"The Shooting of Big Man: Anatomy of a Criminal Case," a two-hour-long documentary aired on ABC-TV on June 8, was a carefully crafted condensation of more than 100 hours of videotape interspersed with narration by Tim O'Brien, Supreme Court correspondent for ABC News. With the exception of jury deliberations, nearly every significant phase of trial and pre-trial proceedings was depicted, including attorney/client interviews, strategy session, a conference in the judge's chambers, courtroom testimony, and final arguments.

Conceived and filmed by Eric Saltzman of Harvard Law School's Evidence Film Project, and co-produced by Saltzman and ABC, the program was generally well received by TV critics as a television and legal first in following an actual criminal case. But reviews of the program be several public defenders in California and Washington, D.C., have been less enthusiastic. They have criticized the Seattle defense lawyers for inappropriate legal behavior, including coaching the defendant, callousness, and showmanship.

The controversy was set off by a strongly-worded letter sent to John Cleary, president of the California Public Defenders Association, by James Hallett, Los Angeles deputy public defender, in which Hallett decries the "unethical conduct on the part of the public defenders" -- David Allen (who is now in private practice) and Sarah Lytle (who died in July). A copy of Hallett's letter was forwarded to Howard Eisenberg at the Washington D.C.-based National Legal aid and Defender Association, who says that members of the association will discuss the program at its upcoming national conference.

In his letter Hallett criticizes a strategy session between Allen and Mark Leemon, another attorney in the Seattle defender's office. The lawyers joke about communicating with the victim, who is unable to move his mouth. ("Big Man" Collins, who died six weeks after the trial, was shown in his hospital bed, his jaw shattered and tubes protruding from his throat.) Allen suggests "Morse code." Leemon then hypothesizes about how Collins will finger his attackers: 'Will you show us the guy who killed you?'--and he'll point his nose at the guy. Is that what's going to happen?"

Questioned about the scene and the criticism--that it was bad PR for public defenders--Allen and Leemon both state that they hope the public puts the scene into context. "If you let the enormity [of these cases] get to you, you'd go nuts," says Leemon, explaining that in the "basic bullshit session" he was talking to one friend, Allen, while he was being filmed by another friend. Sltzman, a filmmaker and lawyer, had worked for a year as an attorney in the same office.

Hallett also faults attorney "Allen for his remark that winning is paramount--as contrasted with the prosecutor's gentler statement that there is an element of tragedy involved in a conviction--and he denounces Allen and Lytle for surrendering control of how the information would be presented to the public in favor of engaging in a publicity stunt.

Allen says that, had he known from the start that the documentary would be shown on national television--and not on the public broadcast system, or used in law schools as an educational tool, as Saltzman thought originally--he would have given more thought to his decision to permit the taping. But he maintains that he has no regrets.

Saltzman laid out the ground rules--the film crew would not divulge to either side what they had learned during the filming, and neither they nor their recordings would be subject to subpoena--and he received general consent from prosecutor, defender, court, police, and defendant.

Of all the participants, the only one paid was Jack Jones, the indigent unemployed shipyard worked accused of assault with intent to kill. For $500, on the advice of attorney Sarah Lytle, Jones signed a waiver allowing the camera crew to record all aspects of th proceeding, including Jones's interviews with his lawyers. Saltzman says that Jones could have changed his mind about the filming at any time, and that he arrived at the $500 figure because "I wanted to pay him some money, but I didn't want to pay him so much money that, if it was a bad idea, it would overbear his will."

The bulk of the criticism received by the defenders from Hallett and, later, Clearly, who wrote a letter or complaint to the producer at ABC, has been directed at the attorney/client meetings, in which Hallett says the defenders "coached the defendant as to what to say in court, and appeared to actually create a defense for a guilty man." Following the airing of the program, Allen says he was greeted by a prosecutor as "Coach of the Year"; and prosecuting attorney Dennis Nollette says that one juror in a subsequent case declared during voir dire that after watching the documentary she couldn't trust the defendant's story.

An examination of those defense sessions shows, however, that while the attorneys coached Jones in his presentation so that his statements on the stand would bolster his claim of self-defense, the lawyers relied on and stuck to the story Jones had supplied them, rather than fabricating a defense. In a jailhouse conversation with his lawyers, Jones tells them that had he intended to kill Big Man, he would have at the time. "I think that's good when he explains it like that," Allen tells Lytle, to which Jones responds: "That's what I'm trying to get--that's what I'm trying to get around to learnin'. It's the--you know--how to--how to express it."

"The Shooting of the Big Man" ended with an interview with Charles Nesson, associate dean of Harvard Law School, who works with Saltzman on projects for Evidence Films. Nesson complimented the lawyers for their handling of what he described as a "quite typical" case and, in answer to questions about "coaching," stated that a defense lawyer is obligated to help the defendant tell his story to the jury "as effectively as he possibly can."

In Nesson's terms, lawyers Allen and Lytle fulfilled their obligation: Jones was acquitted on the ground of self-defense. But the Seattle attorneys have not yet been exonerated by some of their counterparts in Los Angeles and Washington, D.C.

To view the documentary on-line, click here.

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