Ed Rucker is a former defense lawyer and author of the new legal thriller, The Inevitable Witness (Chickadee Prince, 2017)
CPB: Why a novel? Why now?
Rucker: I practiced criminal defense for over 30 years up and down the state of California and a few out of state both in the state and federal courts and I thought that based on my familiarity with how the system works that I might have some things if interest that I could offer and seemed like a mystery novel would be the best vehicle.
What would people not know?
The influence of the media, meaning the newspapers and television coverage, plays a part in criminal cases in California, and they can influence the picture that potential jurors have of the case. Also, our judges are elected, and so the media very much can influence the way a judge might rule on close cases and pieces of evidence, worrying that if they decide something that the public outcry might be reflected at the ballot box the next time they run for election.
We had a supreme court justice and two associate justices who were turned out of office, solely because they had reversed a number of death penalty cases.
The main character in your new series of novels in named Bobby Earl, and he is a defense attorney? Are you Bobby Earl?
He’s a composite of a lot of the characteristics that I find are common in defense lawyers. We’re not monolithic, but there are certain common characteristics. Defense lawyers have a certain level of anger, and this is a profession that allows them to vent that in a socially acceptable way and serve a social good in doing that. Most are very competitive people, and they like that combative atmosphere. There’s a bit of the vanity in many of us, we like to be the center of a really intense drama. For many it’s sort of a predilection to stand up for the little guy, the underdog. A common thing is a grudge against authority that is based on childhood experience with the police.
That’s not you?
I have a bit of that, yes. I grew up in a neighborhood in Los Angeles that at the time was sort of way out in the valley and I was a member of this little gang, and we had some run ins. But nothing serious.
You were actually a character in a number of true crime books, including Fire Lover, by Joseph Wambaugh, which was a bestseller. How did that change your life?
Books like that didn’t necessarily enhance any reputation that I had. I had a reputation of not courting the media. I made it difficult for the media to follow a case of mine. I would not return phone calls. I never had a thirst for the limelight. Publicity would be terrible for my clients – if the media gets hold of a case, it influences the prosecutor and the judge, and maybe even the jury, so I always tried to downplay my cases.
The death penalty was kept in California. How do you feel about this?
Of all the types of cases that are tried, death penalty cases are probably at the top of the list where innocent people can be convicted. The only people that can sit on a death penalty case are people who are for the death penalty. If you have any opposition to it you cannot sit as a matter of law, and people who are for the death penalty are very pro-prosecution and inclined to convict. The kind of case itself selected for the death penalty is generally a gruesome crime, and therefore the jury is very hesitant to release anybody who is charged with that, so the amount of evidence that the prosecution has to put forward is much lower from a practical standpoint.
Plus the fear factor – decent people on the jury faced with the dilemma that there’s not a lot of evidence here, but if we let this guy go he may do something horrible like this again.
In the novel, Samantha, who is on the D.A.’s team, has a secretly cooperative relationship with Bobby, who is defending the accused. Why?
She doesn’t want the trial to be reduced to a political theater for the district attorney and the judge who’s planning to run against him. Prosecutors’ offices have talented and untalented people and ethical and unethical people, just like any profession.
Why did you retire?
Because I didn’t have the energy anymore to prepare cases the way I needed to. I never got cynical about my clients, but I got frustrated with some of the younger prosecutors, who sort of looked on every case as the crime of the century and would demand what I felt were inappropriate sentences for the crimes. A little bit because of the media. And their own ambitions. They’re competitive people. Prosecutors are supposed to try for a just result, not the most they can get, and that flies against most human competitive instincts, where you want to run up the score and have a great victory. They just see CSI and Law and Order, and those are very hard charging prosecutors.
As a defense lawyer who focuses on death penalty cases, you have your clients’ lives in your hands. How did you deal with that kind of responsibility?
I always had to find the human part of my clients that I could identify with, no matter how horrendous an act they had committed, because if they are convicted, you have to ask a jury to spare their lives. It is an emotional decision that the jury makes. And unless you are speaking about another human being rather than just some vile creature, you’re not going to be very successful.
Did you ever have a case you won, which in retrospect (or at the time) you wish you had lost?
I tried a lot of murder cases, including thirteen death penalty cases. I was opposed to the death penalty and it’s important to have at least decent lawyers trying them. I had two death penalty cases where there were outright acquittals. I wasn’t worried that either of them would constitute a danger. One was clearly innocent. The other might not be, but he didn’t constitute a danger.
Murder is generally an impulsive emotional act between people who are acquainted with each other. These mafia professional hit men don’t get caught. So in the murder cases where I received acquittals I was never worried about whether they would be a danger, and they weren’t. for some of them I didn’t know if they were guilty or innocent. I had some doubts with some of them, but I didn’t think they constituted a danger, and it turns out they didn’t.
This book is very critical of “the system.” How would you reform/change the way defendants are judged?
First, the election of judges has become a problem – they now have to campaign, you see; in Texas and California and places like that, they raise large amounts of money, so you have law firms appearing in front of them who have had to contribute to their campaigns.
Also, prosecutors should be held responsible for violations or ethical misbehavior. The way it is now, the worst that they face for withholding evidence of innocence or something like that is that the case may be reversed on appeal, and that’s not much deterrent to that type of conduct.
Finally, in California, we are just warehousing thousands and thousands of people. There are dangerous people who should never be released, but they are a small portion of the people we send up there, along with drug crimes and petty thefts.
We spend more in California on our prison system than we spend on the University of California, all of the campuses, and Cal state, put together.