Warren Burnett for the Defense
Winning isn’t everything, it just almost is.
In the days that preceded the trial, the touts at the Travis County Courthouse came to call it “The Case of Inadequate Foreplay.” It might have been called “The Beautiful People Rape Caper,” the word caper referring not to what went on that fateful night in the apartment of a University of Texas freshman law student but to the manner in which the legal adversaries would dance and cavort with the law six months later. It was their caper, the prosecutor’s and the defender’s, and the defender was a legendary Texas criminal defense lawyer.
This was the accusation:
That in the early morning hours of September 30, 1973, approximately four hours after the Texas-Texas Tech football game and following a Beautiful People’s party, one Robert Campbell, a 26-year-old Vietnam veteran from an upper middle class family in Odessa and an honor graduate of the UT school of accounting, did by force and without consent take the sexual pleasures of one Heidi Krupp [not her real name], a 20-year-old UT English major from Europe.
The case went virtually unreported. It is not unreasonable to speculate that perhaps a dozen vicious assaults took place that same night in Austin, one or two perhaps in Memorial Stadium while the football game was in progress. The Daily Texan, which had been crusading hard for women’s rights, passed over the story in a few paragraphs, and the remainder of the Austin media overlooked it entirely.
This real or imagined rape might have been swept under the nearest docket as are so many similar cases, except for one thing—Warren Burnett of Odessa had agreed to undertake Robert Campbell’s defense. Why? It was not a case designed to exercise Burnett’s considerable talents. This was a lawyer who once won acquittal for an 18-year-old “model boy” athlete and scholar who kissed his pretty 15-year-old girl friend goodbye in the moonlight beside a remote West Texas pond, then blew her head off with a shotgun. It was called the “Kiss and Kill Murder Case.” Burnett convinced the jury that his client, being “temporarily dethroned of reason,” finally gave way to the young lady’s plea that she wanted only to go “live with the angels.”
The common designation for Burnett is “superlawyer”; he has won huge sums as a plaintiffs attorney, was a “Movement” lawyer for Texas chicanos in the troubled Sixties, has at least three times intervened successfully in cases called to his attention by the American Civil Liberties Union to set aside death sentences of the friendless and the penniless. And before that—in the very early 1950s— he was known as the meanest prosecutor in the whole Trans-Pecos region. There are those who say that next to Percy Foreman, long the king of Texas courts, Burnett may be the best and the brightest of our trial lawyers.
Why, then, Robert Campbell and a back-page rape?
Burnett was in Austin lecturing the University of Texas Law School on criminal procedure when he learned from an old friend, a law professor, of young Campbell’s plight. Somehow—possibly out of his involvement with his profession—he felt immediate empathy. “There are nine applicants for every law school seat in Texas,” Burnett reasoned. “Anyone who entered law school last September [as Campbell had] must be fairly bright. This young man had more at stake than the average citizen. A conviction would pretty well foreclose the possibility of his getting through law school or getting licensed.”
The lawyer accepted the case without fee; he must have known it would cost him time and money, the legal processes knowing no free lunches. It was not an uncharacteristic gesture, though Burnett is slow to say why. A self-professed cynic who denies seizures of altruisms, he usually claims to be motivated by ego or “too many varieties of mood modifiers” when caught in an act of grace. Perhaps he took the freebie for no better reason than Campbell was an Odessa boy in trouble away from home.
There was an additional reason this particular rape case caught the fancy of courtroom railbirds: Travis County District Attorney Robert (“Bob”) Smith, who customarily reserves his energies for defendants of, say, the Gus Mutscher ilk, made a rare personal appearance rather than relegate the case to an assistant. Smith is a sober, pious, humorless hardliner, bane of the underdog and defender of Sunday School morality—in short, Warren Burnett’s spiritual opposite. It was a chance to watch the boxer and the slugger in classic confrontation; courtroom touts tried to recall the last time Bob Smith had personally prosecuted a case. Was it … yes, it was, the Slaton murder trial of a year ago. That also was the last time Burnett had appeared in a criminal trial in Austin. His client Slaton had allegedly shot his victim five or six times in the front seat of a car at a drive-in movie in front of two eyewitnesses, including the dead man’s wife. Burnett won an acquittal in the same courtroom, and against the same dour prosecutor, where the rape case would be tried. The conventional wisdom ran that Bob Smith sought vengeance, personal satisfaction.
“Yeah, I guess I’m a little surprised at the effort the prosecution is putting into this case,” Burnett says. It is obvious he relishes the challenge, likes to talk about it, wishes everyone to know that it is there. Whatever his faults, excessive modesty is not among them. Among the vanquished he inspires something near to hate.
The chore of jury selection over, Burnett is relaxing in a hotel suite with his wife Anne and friends. The only time he appears to relax is when talking—especially of the law and with those who appreciate its subtleties. He is a hard-traveled 47, one who doesn’t ride his giant Harley-Davidson hog now so much as he pedals his ten-speed bike. He no longer flies his private airplane when three sheets to the wind: ten years or so ago he once flew it inside a Lubbock drive-in theater. He also broke his back in a one-car wreck in younger days and shattered a leg in a motorcycle accident in Mexico. Like many an old gladiator who has learned that steel will pierce flesh every time, he has become a little less hell-bent and a little more reflective. “Two or three years ago,” he tells you, “I discovered the therapeutic qualities of occasional sleep.” He has even reached that point of considering offers from publishers to write his memoirs, a sure measure of… well, kindly call it maturity. To a good friend he recently blurted over drinks in the White Buffalo Saloon in Odessa, “How many good years you think we got left—fifteen?” The subject had not been on the agenda.
But now, in Austin, on trial’s eve, Burnett has changed from his conservative-cut knit suit to a pullover sweater and plaid slacks which make him look a little boyish and a little like Howdy Doody. There are bottles of good hard liquor on the room service table, but he chooses a beer, runs his hand through hair clipped shorter than he’d like it—“a concession to the jury system”—and plops his feet on the hotel bed.
“I was surprised when they hired a psychologist to help them pick the jury. First time I know of that being done in Texas. Defense lawyers do it—but it’s the first time I’ve seen the prosecution do it. Why? I don’t know, but I’m told there have been a number of articles in The Daily Texan about quote rape unquote and how it is going unreported and unprosecuted.”
“It’s a private vendetta by Bob Smith,” says another lawyer, [the late] Brooks Holman, an associate of Burnett’s in the case. “The only reason Bob Smith is in that courtroom is Warren Burnett. He wants a few pounds of your butt.”
“Could be,” Burnett says. “It’s true anywhere that if a lawyer shows up who, rightly or wrongly, has a reputation, then he frequently brings out more effort. But I don’t know if that’s true here.”
Despite the prosecution’s effort, Burnett is pleased with the jury. Six men. Six women, two of them black. One of the black women is a health worker for the city, the other a jazz singer and former college dean. Burnett was pleasantly surprised to see the two black women make it, especially the jazz singer: he had expected they would be eliminated by the prosecution’s cuts. There is a longtime bank employee, a secretary, a woman active in the Republican Party; it’s a good cross section.
“There must be special problems picking a jury for a rape trial,” I observe. “It seems like the normal lines of sympathy would be obliterated.”
“About all jury picking amounts to,” Burnett says, “is avoiding the possibility for disaster. You don’t want a victim of a crime of violence, or a deputy sheriff’s brother, that sort of thing.”
“Is there a profile of a good juror?”
“No. I pick a jury like Karl Marx would, along economic lines, with a definite notion of class structure. This may not be true throughout America, but in Texas a lawyer can feel he’s done pretty well toward his client if he cuts a jury along economic lines.”
“Is that because people from lower income levels have a built-in thing against authority?”
“No, no. You try to avoid any direct confrontation with authority. You try to show that the law enforcement people are just sort of victims of misadventure… Some individual law enforcement officer made a mistake, but law enforcement people in general are our pals. No, the reason you try to get people from the lowest level of the economic pecking order is this: probably the most important decision that person has made is whether to buy an FHA home for $12,000 or $14,000. They don’t make personnel decisions—who is going to be hired or fired or promoted or passed over. They’re strangers to the process of deciding the fate of other people.”
“Well, why is that an advantage?”
“Makes ’em cautious. They’re not real sure of themselves. Maybe they know a bit about hard luck. They’ll bend over backwards, I think, to be ‘fair.’”
Burnett is known as a gambler, a dice-roller who sometimes goes by “feel” or instinct and who often—though not always—pulls it off. He plays for the jackpot. Should he lose a personal injury case, there’s no attorney’s fee and no expense money (to say nothing of a disappointed client). “You’ve got to be careful,” he says. “There’s nothing worse than taking the gas in court and leaving your client without that rejected settlement that suddenly looks good.” Still, Burnett knows that insurance adjusters and insurance lawyers have a way of generously escalating their settlement offers when he represents the injured.
State Representative Neil Caldwell recalls the first case he tried in partnership with the Odessa lawyer. It was a whiplash case—somebody in a car hit from the rear—and even with Burnett in the courtroom the insurance folk were offering only $2,500.
“We had a horrible jury,” Caldwell says. “Six Bexar County civil servants and six farmers named Klostermeyer. During one recess I overheard some of the jurors talking about Commies, gun control, impeaching Earl Warren. Just before Burnett started his final argument, I whispered, ‘Good luck with the founding fathers of the John Birch Society.’ Burnett gave me this funny look of recognition and proceeded to give the damndest law-and-order speech I’ve ever heard. He convinced them that if they didn’t turn over a bushel of money to our client they were openly aiding the Communist conspiracy and probably signalling the end of motherhood and apple butter. Well, they gave us $35,000.”
It probably says something uncomplimentary about our system that while a lawyer’s reputation is close to money in the bank in a civil case, it usually works against him in a criminal case. Nearly every prosecutor in the state has a sly little speech telling how high-powered and slick Burnett is. Decoded, the message reads: you only hire Burnett if you’re guilty and trying to pull a fast one. There was a case a few years ago of a woman juror who announced, the moment deliberations began: “This is one case that smarty-pants Warren Burnett ain’t gonna win.”
In the case against Robert Campbell it will be the job of assistant district attorney Herman Gotcher to remind the jury constantly of “Mr. Burnett’s skillful cross-examination.” In his closing arguments Gotcher will address a courtroom packed and overflowing with UT law students and professors, brown-nosing Burnett to death, telling them it ought to be worth two college credits just sitting here, and finally describing his adversary as “one of the most eloquent arguers I guess I’ve ever had the chance to be up against.” The D.A. himself will, to the best of his ability, pretend Warren Burnett does not exist: throughout the trial he will refer to his opponent as Mr. Warren or Mr. Warnett.
The phone rings in the Austin hotel room and Burnett jumps. All this bean-bagging with old friends has made him edgy: he has done his homework, checked and rechecked it, studied the law, noted the rules, the exceptions, examined the evidence, interviewed witnesses, and yet he can’t overcome the feeling that he has overlooked something, some small detail, that could be vital to Robert Campbell’s freedom and future. He seems to fear some vague surprise, some shot from ambush: goddammit, the feel isn’t good.
The telephone call is from the Odessa office of Burnett and Associates, making its daily contact with the wide-ranging chief.
“Tell Johnny to get to New Mexico and plead not guilty on all counts,” Burnett tells the caller. The boom of command is in his voice. “Call Mr. McKean, tell him I can’t make that speech after all. Also, how are we doing in the instant murder case? Three jurors picked? I’ll be damned.
“Get ahold of Paul Stacey. Have Chris tell them to be in the office Monday morning. That wire tap business is set for Tuesday. What? Oh, it looks pretty good here. My man did not rape an ugly old woman… he sure didn’t.”
The striking Ms. Krupp and her equally attractive roommate, who will be called Carla Rogers, arrive at the trial dressed as Bo-Peeps. There is not a trace of cleavage; their pretty faces are scrubbed of the devil’s paint. “I’ll kiss your ass if they don’t look like they’re selling Brownie cookies,” Burnett whispers. Robert Campbell, the handsome, muscular, reddish-haired, ex-combat soldier who is on trial, wouldn’t pass for one of Ross Perot’s Eagles, but you might easily mistake him for a shoe salesman. Lawyers dress their clients, yes, to fit the desired image.
Gently, ever so gently, Burnett leads Ms. Krupp through the ordeal of the cross examination. It has come down to a case of who may be lying, and Burnett wants to educate the jury to what legally constitutes a reasonable doubt—all he needs, by law, to avoid conviction. One of his favorite prefaces to any question is “and now, so that the jury might know…” Burnett is performing a service for the jury, seeking the “truth” for the common good: getting to the bottom of things, letting it all hang out.
And now, so that the jury might know, Ms. Krupp, isn’t it a fact, now, that it was you who smuggled that bottle of whiskey into the football game that night?
Well, yes, it had been in her purse.
Of course. And during the course of the football game isn’t it true that Robert Campbell mixed for you about six kingsized whiskey and Cokes?
Ms. Krupp says it’s true that he mixed them but it is not true that she drank them.
Burnett looks at the jury and arches his eyebrows until you think they may take flight.
Then, pray tell, what happened to those six kingsized drinks?
She testifies, perhaps nervously, that while she pretended to sip them she actually—when Mr. Campbell was looking away—poured them under her seat.
There is no trace of humor or mockery on Burnett’s face as he turns toward the jury box: he wants to believe her… he is trying his damndest to believe her.
So… that… the… jury… might… know—and the lawyer continues to face it—was there any discussion with the people seated directly in front of you?
Were the people in front wearing rubber boots? What with all that pouring and splattering going on was there not some sort of elimination tournament to see which man had the first opportunity to whip your date?
Some of the jurors react visibly: blinkety-flash! Light dawns! Yes, these Texans have sat scrunched up in many a crowded football stadium, where the more people they squeeze in the merrier the cash registers jingle, and now they recall old jostlings, random tailbone kicks, and other irritants. The Republican lady on the jury defrosts, smiles knowingly, touches her coiffured, tinted hair.
Ms. Krupp testifies that after the game, over her strong objection, she accompanied Robert Campbell to the Beautiful People party where again she only pretended to sip her drink. Someone passed around some pot, but true to her character of other occasions Ms. Krupp abstained. (“I feel some measure of guilt attaching great significance to whether she smoked dope,” Burnett says later, “but we have to do it now that she’s denied it”—the name of the game is to win). Her recollection of the party is she had a miserable time and wished to be taken home.
Instead, she found herself across town at Campbell’s apartment: more drinks were served, more dope smoked. Suddenly, the drink-dope-crazed Campbell had her wrist and was forcing her into the bedroom. He removed her sweater, and her bra came off without being unlatched or torn; on cross examination, Ms. Krupp ascribes a high degree of elasticity to that garment. Then, she testifies, she is kicking, scratching, biting, slapping, and hollering; apparently no neighbors heard her call and Campbell’s roommate says he slept through the whole affair.
Only when Campbell threatened to kill her, she testified, did she control her screaming. By this time they were on the floor and he had either his forearm or his shank pressed against her throat. About then her wheat-colored jeans and her panties were ripped off. Although the panties are apparently in evidence, the district attorney conspicuously fails to mention them. When I ask Burnett about this later, he smiles and says, “Yes, her little drawers are in evidence, and they are pristine.”
Now comes a most delicate line of questioning. Ms. Krupp had testified that she was raped three times over the next three hours. Burnett glances toward the jury, perhaps hoping to solicit expressions of awe; is this to say that Mr. Campbell experienced three orgasms? It is a risky question, one that may even border on the foul. Ms. Krupp, who has it on the record that until her alleged violation she had been a virgin of twenty, clearly answers there were three separate penetrations, of that she is certain; it is implied that her inexperience can take the question no further. Burnett quickly makes a subtle retreat with a general question to the effect of “now what happened next?” You can almost hear him think I nearly blew it.
Testimony is that the sated Campbell fell into a stupor at which point Ms. Krupp escaped—wearing Campbell’s pants and one of his shoes—through a living room window next to a door latched only from the inside. The Burnett eyebrows arch again: reckon how come…? It is a small recovery, perhaps, from the mistake of the sarcastic orgasm question, but a little momentum is better than no momentum at all.
Here, now, a necessary digression: according to the charge that the presiding judge would read to the jury, the law requires that a rape victim not only resist to the best of her ability but “utter an outcry or complaint at the first possible opportunity.” That may be a harsh requirement of the law: does it allow for the shock, shame, or general disorientation a sexually assaulted person may have experienced? Or does it, in the other view, give the alleged rapist protection against tardy or reflective or perhaps simply contrived accusations? It is one of the key questions of rape, that crime least likely to produce eye-witnesses: one witness, one vote.
It is not exactly clear what Ms. Krupp told a certain officer of the Austin Police Department who—encountering her after she’d walked approximately one mile, and perhaps wondering why she wore a lone shoe—asked whether anything might be wrong. Yes, Ms. Krupp said, but she didn’t want to get the boy into trouble. What happens next remains foggy because the prosecution failed to call the officer to the stand even though he was under subpoena. One must speculate that the officer was not prepared to testify that the alleged victim had uttered an outcry or complaint “at the first opportunity.” But does that mean she did not, or that the officer didn’t understand it as such, or that he did understand and didn’t want to futz with the paperwork because his feet hurt and maybe he didn’t want to prolong his shift? Or that—like many cynics, and lawmen, often indicate—he didn’t believe in rape’s possibility: that, in the words of many an old defense lawyer long dead, “You can’t stick a pen in a moving ink bottle”? At any rate, the officer was content to drive the young woman to an all-night grocery store and there give her a dime to telephone her roommate, Ms. Rogers.
At dinner during an early part of the trial Burnett lamented that flesh-eating monster of his profession, the lawyer’s ego, damned it and spat at it and made it pitifully clear that it was a mistress without which he could not live. None of them could, none of the good ones. There is no ego trip in our culture, he said, greater and more threatening to the process of justice than the proud prosecutor versus the proud trial lawyer. It brought to mind two gladiators at a taffy pull. “That, my friends, is why they call it a trial,” Burnett smiled.
Burnett has worked both sides. As a young prosecutor in Odessa in the early 1950s he sent a young rapist named Harry F. Butcher to the electric chair, played the game, worked the angles in those pre-Miranda years right down to taking the doomed man’s confession long before a lawyer was appointed for the defense. Yes, damn right he could remember his feeling when the judge read the formal sentence of death. “I would like to say… that I had just one… good… solid… honest feeling… that… I was very saddened… hoping that maybe something would happen to nullify the decision,” he said slowly, dragging out each word as though it were a hot coal. “But the truth of the damn matter is… I also had the feeling I had won the law suit.” An old friend recalls that Burnett personally thanked the jurors for their verdict.
That was what, twenty years ago? No, twenty-two. Burnett remembered that he drank a quart of Old Charter on the night that the State of Texas sent Harry Butcher to his death. He knew, perhaps, even in his keen young ambition, that one day he would not be proud of that verdict. Whether he knew he would have nightmares about it, no one knows.
“When I was a prosecutor [1952-56],” Burnett said, “there was nowhere in Texas much sensitivity to the Constitution or the Bill of Rights or the concept of fairness that later developed under the Warren Court. Most people just don’t understand the Constitution of the United States. It’s entirely possible that the majority don’t even approve of it.
“Even when it came down that it was constitutionally impermissible to convict a black man when there was no black on the grand jury, the judge would systematically include one black from a small pool of three or four… what we called porters at the bank. The average district attorney survived on the number of pleas of guilty he could get. He went around to the various jail tanks to deal with the prisoners on a one-on-one basis, in the absence of a lawyer, and made deals for how much time they would spend in the penitentiary. Three years, five years, ten years, in return for a plea of guilty. Much later, a lawyer would be appointed for the purpose of formally ratifying the sentence. If a prisoner refused your deal you—as prosecutor—would take it as some sort of personal rejection and you would go into court asking for the maximum and feel very good if you got it. I’m telling you how it was twenty years ago—unfortunately, this is still true in many instances in Texas.”
Someone mentioned a recent editorial from the Dallas Morning News, entitled “A Spark of Life”: it recommended that the electric chair, which the writer blithely referred to as Ole Sparky, might somehow benefit a new generation of Texans and thereby save “the lives of thousands of potential victims of the lawless.”
“The pity of it,” Burnett said with a long sigh, “is they’re giving the public slogans to a very complex problem. It’s not so important statistically in terms of total years of human life to be destroyed… the 55-mile-per-hour speed limit will save a hell of a lot more lives than the electric chair. We’ll kill a hell of a lot more people by legislative neglect during this session than we’ll kill if we start electrocuting people again. But the pitiful thing is, the public will think something is really being done about the law enforcement problem.”
When Warren Burnett packed his cardboard suitcase and left Austinville, Virginia, to join the Marines in 1945, his intention was to be a novelist. Instead, somehow he ended up studying law at Baylor and practicing it in Odessa. Not a good town, perhaps, in which to fight windmills. It is conservative, and vies with Midland and Dallas in awarding long prison sentences. Since his divorce from his first wife a few years ago, Burnett has constantly threatened to move his practice elsewhere—to Dallas, to Houston, to Austin, to Fort Worth, to anywhere except Odessa. Well he might: the big verdicts do not come in as easily as formerly in the old home town, Burnett long having been locally advertised for excessive womanizing, boozing, maybe being about half-Communist. He occasionally fouls his own nest: full of himself and strong vapors, he once confided to a reporter that he lives for three things: “women, whiskey, and winning.” Now he ruefully says, “The only people it made mad was my wife, my ex-wife, my children, my parents, 91 per cent of my real good friends and 97 per cent of Odessa.” Increasingly, his most satisfying verdicts are won in other cities.
Once he seemed a sure community pillar: he likely would be congressman, or a federal judge; Life magazine, caught up in Kennedy-era charisma, listed him as one of a hundred personable young Americans destined to rule us as the new Establishmentarians. But somehow in there he came on a collision course with his conscience, or decided he didn’t want to pay the price; wanted, instead, like Ole Blue Eyes, to do it his way. It was then he began to defend antiwar activists, chicano or black wildmen, filthy dope freaks, friendless killers, other indigents. Things haven’t been quite the same since. Somehow, neither has Burnett. For all his success and fame and riches, you get the notion that he sometimes feels he may have aborted himself, that he missed some bigger promise. Maybe it is his recurring talk of leaving Odessa, his preoccupation with the aging processes, a general restlessness.
Says his old friend, author Larry King, “I remember one day oh, sixteen or eighteen years ago, when I happened to be on a street corner in Pecos and saw this big car come flashing through ninety-to-zip, The horn was honking, the driver was elated and manic and waving his arms. As it sped by and went shooting off into the desert, I suddenly realized it was Burnett—celebrating, it turned out, his largest personal injury verdict to that time. He’s won much bigger ones since, but the old thrill seems to have gone. It’s been a number of years since I’ve thought of Warren as a happy man.”
As the week of the trial wore on I began to suspect that there was something to Ms. Krupp’s assertion that she didn’t want much traffic with Robert Campbell. The boy did not wear well. There was about him a certain arrogance, even as his freedom rode on the line. He seemed to look on Warren Burnett as his due. When I asked what he thought of his famous counselor, Campbell said he was surprised: he’d heard Burnett was a drunk.
During court recesses for lunch, Burnett pored over lawbooks and wrote notes to himself. “The thing a good lawyer does for his client is try to put the law in shape,” he said. “Those dramatics out there in the courtroom, hell, they may impress three jurors and turn off four others. About the only thing a lawyer can do in the courtroom is keep his fly closed, and I check mine about every twenty seconds. You can make pretty speeches, sure. But you’re a gone goose if you’re not prepared to scuffle on points of law.”
But for all that there is an art to cross-examination and Burnett was not so gentle in his questioning of Ms. Rogers: the roommate, you will recall, who urged Ms. Krupp to file rape charges and who in furtherance of that cause had driven her 283 miles to her own family physician in Iraan, Texas.
So that the jury might know—he began—is it not true that you have represented yourself as Ms. Krupp’s sister? Not sisters like ‘I’m with you, sister’ but real blood sisters: isn’t that true? Was it not true, indeed, that Ms. Rogers had told Robert Campbell, the bartender at the Bucket, even the housemother at Scottish Rite Dormitory where they once lived, that she and Ms. Krupp were of the same seed?
(Indeed, the women might well have been sisters: they were dark and fine-featured, a matched pair of beauties. But Ms. Krupp had been born in Europe and Ms. Rogers in the hot desert town of Iraan, Texas. Despite this, even their voices sounded the same; they shared what you might call a Continental twang.)
Burnett’s purpose, of course, was to indicate to the jury that a woman who fantasized about blood kin—one who had played the active role in the filing of rape charges—might not be wholly reliable in other things. He seemed, too, to be hinting at some, well… special relationship between the two women: Ms. Rogers, he indicated, was the “Big Sister”; the one who answered their common phone, who kept constant tabs on Ms. Krupp’s whereabouts, who had held the frightened, injured, humiliated girl to her breast in those nights after the alleged rape. Sisters, yes…
When the state had paraded all its witnesses, Burnett appeared in good shape. The state had failed to demonstrate that Ms. Krupp made an outcry “at the first opportunity”—to a policeman, yet—and for all the testimony of fighting, scratching, kicking, and biting, Robert Campbell had never shown his marks or scratches; though three doctors had examined Ms. Krupp they could offer no more than a couple of bruises and complaints of soreness. Anyone who ever had a pile of drinks could say as much on a given night, no matter whether they had attempted sex.
Now Burnett dropped the hammer. His first witness, a boy named Singleton, seemed to destroy all of Bob Smith’s work. Yes, he had attended the Beautiful People’s party the night of the alleged rape. Yes, he had seen Heidi Krupp there—drinking, smoking pot, sitting happily on Robert Campbell’s lap and sure seeming to be having a good time.
The District Attorney was on his feet, loudly demanding to know the name of the host and hostess of those wild goings-on. Singleton coolly said he would have to get that information from his date—a thing sure the DA must have already known; it is inconceivable that he would not have talked to the hosts of that party in his pre-trial preparations: to learn for his own purposes how Ms. Krupp had disported herself, how she had acted toward the accused. Now the D.A. blustered and roared, ordering young Singleton to discover this vital information immediately.
Judge Mace Thurman sent the jury out of hearing; there followed a flurry of whispered lawyer-talk at the bench, after which absolutely nothing else was heard of the matter. It is interesting—but fruitless—to speculate why. Lawyers and judges do not share with others their private agreements or accommodations made as officers of the court. But Burnett had good reason to believe, now, that the jury had a new image of the complaining witness.
The state, damaged, moved to put on four other witnesses: girls who would testify that they, too, had received rough treatment from this same Robert Campbell. Burnett almost smiled; he knew it was an act of desperation and that it wouldn’t work. The Court of Criminal Appeals had recently ruled that where consent is the issue in a rape case—as it was here—then extraneous acts of sexual misconduct, real or claimed, did not constitute admissible evidence. Burnett re-read that opinion during his lunch hour and grinned: “We got ’em. I can’t imagine the judge letting ’em put those witnesses on.” And, sure enough, the judge did not.
By the time the defendant Campbell took the witness stand, Burnett and Associates seemed to have the old ball game won. Every bench and every folding chair in the courtroom was occupied, mostly by law students and professors; dozens more crowded the door, bickering and pecking at points of law and procedure. None of the professors I spoke with had a good word for Robert Campbell, but there was no reason to doubt he would be a good witness: whatever else might be thought of him, he appeared bright and articulate.
District Attorney Smith preceded to pummel young Campbell with questions that would get anyone except a prosecutor clapped in irons:
Did she get on top? Did you? Describe it for us. What about the second time… and the third… How did you get from the couch to the bedroom? Who started undressing who first? Yes sir, I do want a blow-by-blow description!
Campbell initially held up well; he even supplied a possible motivation for why Ms. Krupp would press the charge of rape: it was because he refused to marry her in the event she became pregnant. “Why couldn’t you commit yourself to marry her?” the D.A. pounced. “Was it because you were already married’?”
“No sir,” Campbell said weakly. Burnett seemed to sink involuntarily into his knit suit, as if waiting for the other shoe to drop. It did. Right on Bob Campbell’s head. “Did you ever make the remark I’ve been screwing her brains out for months?” Smith roared.
Campbell’s voice said no, but his eyes said oh shit where did you hear that? It would turn out the D.A. had heard that remark and a lot more, had accomplished more homework than previously had been evident. Suddenly it came in a torrent: had Campbell not told conflicting stories to at least two law professors, including associate dean Byron Fullerton? Had he not told conflicting stories to another girl? Had he not wandered around town advertising his infamy, changing the story as the mood fit him? Quite abruptly, young Campbell was no longer so certain of himself.
Now, one of the first things a lawyer learns—one of the very first things, even before he learns to keep his fly closed in court—is the danger of his client talking about a pending case. Even bad lawyers repeatedly warn their clients: talk to no one! I am the only friend you have! Talk only to me! Burnett shot Campbell a look that, if looks could kill, might have put Campbell somewhere floating on a cloud while strumming a harp.
When the D.A. finished with Campbell, Burnett shouted out to his client: “Stand down!” Campbell stood down. “Sit down!” Burnett shouted. Campbell sat. Burnett said something else, his face close to his client’s and his eyes murderous, but it is just as well that no one except Campbell heard.
In a secluded hallway outside the courtroom Burnett tried to compose himself. “Brooks,” he said to Brooks Holman, “go stand watch over the son-of-a-bitch. Make damn sure he doesn’t talk to anyone else.” He literally shook with rage. “Damn it to hell and back, I told him… told him twenty times… Sat him down in my office and told him not to discuss this case with anyone… Told him over and over. We had ’em by the ears, and he blew it.”
“What now?” I asked.
“Now,” he said, “I’ll see if I can make a lawyer out of Dean Fullerton.”
Outside the presence of the jury Burnett laid the framework of his motion by grilling the dean on the attorney-client privilege or confidence. Dean Fullerton admitted that when the young law student came to his office it was possible that he, Fullerton, wore two hats—that of administrator, yes, but also that of attorney. He had warned Campbell, the dean said, not to talk to anyone except his lawyer.
“Dean,” Burnett said, “you were giving him the soundest possible legal advice.”
But Fullerton, himself a proud lawyer, was not about to let Burnett define him: “I gave him the soundest possible advice.”
Still on his feet Burnett dictated without pause or flaw a brilliant motion to the effect that Fullerton’s testimony, if allowed, would violate the attorney-client privilege. The judge ruled against him, and Dean Fullerton was permitted to lay his damage on the jury: that Campbell had told him quite another tale than he’d testified to under oath. Another witness—Campbell’s ex-wife, though law prohibited her from being so identified—then testified that Campbell had told her, “The girl made up the rape story because I robbed her of her virginity”; on another occasion, she said he’d told her that Ms. Krupp was mad at him for taking out her roommate. Now Mr. Campbell was not likely to be confused with Mr. Clean.
In the hallway assistant DA Herman Gotcher said to Anne Burnett, “You had us until the boy began shooting off his mouth. I wouldn’t blame Warren for shooting him. We probably wouldn’t even indict him.”
The final arguments of lawyers—their final summations to the jury—are necessarily self-serving and present a one-sided view. Great liberty is allowed lawyers in their rhetoric, though the jury is instructed by the judge that it is not to be considered as evidence. But a good lawyer, on a day when his rhetoric is flashing bright, when the oratorical thunder and lightning crash and roar, may fire up a jury, inflame it, lead it by the nose, get it to return a verdict out of emotion or moral outrage. Few bills are voted up or down in Congress by oratory—no, dry committee work, the party line, any number of factors, are more important there; all those windy speeches in the U.S. Senate are largely sound and fury, signifying nothing. But men have gone to jail or to their state-sponsored deaths or have gone free, because on a given day a lawyer got it all together for the final summation.
Bob Smith gave it his best shot; one sensed that he smelled blood. Soon it became clear that the D.A. was not in the case out of a seeking to even an old score with Warren Burnett after all. No, his grim old-fashioned self-righteousness came through: he felt it his duty to jail this “sexual athlete,” as he described Campbell. Yes, he came down hard on the side of morality: an anguished cry for somebody to help these poor women who get raped and then run into official indifference or skepticism. “The Brackenridge Hospital emergency room stinks,” he said. “They don’t care about these little girls.” The police didn’t care. Even some members of Smith’s own staff regrettably didn’t care. Right through society’s many layers the assumption too often is that the female asked for it, probably enjoyed it. “Let me put it this way: should we wipe the crime of rape off the books?”
“It was primitively powerful,” Burnett later would say. “It scared me. In a rape case—any rape case—you really sail off into the unknown. A helluva lot of people believe that rape is somehow impossible, that if a woman won’t willingly agree, then it can’t be done. On the other hand, those who do believe rape is possible are easily outraged. Some juries, hell, you’re better off defending a multiple murderer than to give them all the sweaty potential terror of a sexual assault. And the old D.A., he laid it on. Asked ’em to be Good Samaritans. And the complaining witness, now, she looked fairly pure. She wasn’t somebody the jury might look at and think ‘slut.’ I honestly went into my final argument not knowing which way it might go.”
“May it please the court,” Burnett murmured in rising for his final plea. He accosted the jurors head on, engaged them eyeball-to-eyeball, stood in close proximity to the jury box. “In this moment I feel and know terror. Terror born, in part, of a concern for a young man’s entire life and our shared responsibility in it. Terror born, in part, of a fear that one or more of you might not find the courage to keep the solemn compact we made before you were selected for this jury.
“You will remember that in those examinations you, and each of you, told me—which is to say you told Robert Campbell—that you would require the state to prove its case. That you would not require young Mr. Campbell to explain or account for the actions of another: that, in short, you would hew to the law and not make it incumbent upon him to account for the actions or aberrations or motivations causing him unfortunately to sit before you today with his life and freedom and future at stake.
“I believed you then. And though I am a little terrified by the potential of what could happen here, I am comforted by hoping that you will go into that best part of yourselves—go into that noblest part of you—where good things are done. And if you do that, then you will keep your compact. By so doing you will not make it necessary for Robert Campbell to make it even reasonable to you as to why someone else causes us to be here today. That is not his function, nor it is his responsibility. You cannot expect him to read the confusions and convolutions of another human’s heart or mind.”
So saying, Burnett abandoned the poetry; step by step he dispassionately
knocked down the state’s case: Where were the bruises and scratches? Why didn’t Ms. Krupp sound the alarm on conveniently encountering a policeman? How come she threw out six kingsized drinks at the football game, though later—by the undisputed testimony of an impartial witness—she had enjoyed whiskey, pot, and Campbell’s cuddlings at the Beautiful People party? Come on, now. We have proved that Ms. Krupp was also seen kissing Mr. Campbell at a nightclub called The Bucket. She had dated Mr. Campbell ever-so-many times. The state has produced nothing—not an eyewitness, not a single shred of testimony that Ms. Krupp had over a given period of time said or acted as if she might feel threatened or repulsed in the company of the defendant. Quite to the contrary. And on and on. You almost wondered how they’d avoided getting married.
Waiting for the verdict, sipping Scotch with friends, Burnett fretted only mildly; there was something about him, however, of a man hoping to improve his mood. “I think we’ll win,” he said, surprising his companions largely by the lack of glee in his voice.
It took the jury four hours to acquit Robert Campbell. There was a general lack of celebration when the verdict came in. District Attorney Bob Smith left the courtroom with his head down. His assistant, Herman Gotcher, manfully congratulated Burnett. “Maybe next time,” he said, grinning without mirth.
Burnett evidenced small cheer. He once told an old friend to the effect that: Winning’s good, hell yes. That doesn’t mean you feel perfect or that you’re happy about your actions or that you’re a hog about your client. You expect the other side to scream when you gig ’em—loved ones, friends—hell, that’s just natural. What sorta hurts is when strangers berate you, or even your friends. Too many folks just don’t understand the law, the Constitution, your role. It’s part of the tax. Sometimes you want to go off and get drunk with other lawyers, even the opposition, because they at least understand what you’ve done and why.
Burnett gazed after Herman Gotcher with what may have been longing, as if he’d like nothing more than a shared drink. But, if so, he resisted that temptation and the hot invitations to night-long celebrations issued by old Austin friends: OK, a drink, yes. I’ll have one or maybe two. But I’ve gotta catch an early plane to El Paso, there’s this old Mexican man out there who lost a leg on the railroad tracks and well, it looks pretty good, yes, I might make myself and the old man some money…