SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia criminal defense and DUI lawyer Jonathan Katz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_02 0:30

Hello, everybody. This is John Katz at Beat the Prosecution. I'm a criminal defense and DUI defense lawyer in Fairfax, Virginia. This is the fourth episode where we're interviewing somebody, and all of them are dynamite people who I have a lot of trouble containing my excitement about. This is Andrea Lyon. She is a lawyer in Chicago. I first learned about her soon after I became a criminal defense lawyer in 1991. Andrea, please introduce yourself to everybody.

SPEAKER_01 1:01

Well, hi, my name is Andrea Lyon, and I uh do live in Chicago. And um yeah, I think 91, 90, something like that is when we met.

SPEAKER_02 1:12

Well, when I met you, this was before I knew what the internet was. And you gave this talk at a National Association of Criminal Defense Lords meeting in the early 1990s, maybe it was even at the Chicago meeting, and you blew me away talking about uh your client. I don't know if it was one of your first with the battered women's syndrome or what, who you got an acquittal for, I think it was. And in tears you told us she named her child after you.

SPEAKER_01 1:46

She did.

SPEAKER_02 1:48

Well, I'd like to start there.

SPEAKER_01 1:50

That was uh kind of amazing. You know, you when you when you uh represent someone, it's as you know, John, it's a very personal uh relationship uh for good and ill. And um when it's over, however it ends, even if it ends great, like with you winning, um most of the time people really kind of don't want to see you anymore because you're associated with you know a really, really hard time in their lives. And so um, you know, after we won, I I thought that she used to happen to stay in touch and all the rest of that. And I thought, you know, she meant it when she said it, but I didn't expect it. Let me put it like that. And then um one day I'm in my office. I this is while I was in the public defender's office, and um I get told I have a visitor, and I come out and there she is with her husband and a new baby who she named Andrea.

SPEAKER_02 2:45

Wow. You're still emotional about it after all these decades. Well, it's kind of a big deal. Of course it is. Are you willing to tell the audience about this woman and the case you had with her?

SPEAKER_01 3:02

Um, no, not particularly. That's enough.

unknown 3:05

Okay.

SPEAKER_02 3:06

Okay, then. Well, let's maybe back up a little bit. Uh Andrea, what's your uh what's your background uh just personally and and what brought you doing criminal defense?

SPEAKER_01 3:18

Okay, well, um I've been a lawyer for going on 50 years at this point, which I can hardly believe. Um, and I became a lawyer because of civil rights uh more than anything else. Um when I was in high school, and there was all this civil rights uh movement and and and uh you know I was very involved in that kind of work. And um, you know, as a I was just a student, what did I know? And um I was uh with a group of people, some um teenagers like myself, some adults, uh, we were picketing a redlining realtor um for your audience that may not know what that is. That's a realtor that essentially draws a line around certain neighborhoods and won't sell to black people there. Um, and we had a court order about like where we could stand and how many pickets we could have and all that kind of stuff. And we were obeying the the uh the order, and all of a sudden we were arrested, or at least I thought we were arrested. Um we get put in this wagon, we get driven to a police station. Yeah, I'm 15, um, and I'm terrified. And um so we're we're there in the station, and of course, this is long before the days of cell phones um or anything, and um and we're in what I now know is probably the roll call room. I didn't, you know, know then what it was, but that's what it was. There was a sergeant in there with a gun and everything, and we're all sort of standing around. There wasn't that many of us, maybe 15, 20 or so. And this one other girl who had been picketing with us, who was I think a year ahead of me in high school, her uncle was an attorney, and he somehow got wind of the fact that we were there. Uh knowing what I now know about Chicago, I would imagine that he had somebody on in the station in his pay to give him the heads up about things. But um at the time, he just sort of miraculously appeared and he goes up to the guy with the gun and he starts talking to him. Now I can't hear what they're saying, okay? I don't know what they're saying, and I'm sure all this girl's uncle did was to say, uh, you know, look, you can't just keep them in a room. You got to charge them, you got to let them go, one or the other, right? I'm sure he didn't say anything more magical than that. But then all of a sudden, we were walking out the door. And I remember just thinking to myself, I don't know what those words are, but I want to. I'm going to learn what those words are. And that's what made me interested in long.

SPEAKER_02 5:52

Wow. Well, I think it's no secret that you were born around 1952, I think. So I'm doing the math here.

SPEAKER_01 6:00

Yes.

SPEAKER_02 6:01

Uh, so you're the age of my mom's kid brother. Uh so that would have been around two or three years, more or less, before the uh Chicago 7 trial, I think.

unknown 6:12

Yeah.

SPEAKER_02 6:13

I'm just wondering.

SPEAKER_01 6:14

Well, yeah, the the uh convention was in 68. This might have been in 68, might have been 67, I'm not sure, but something like that.

SPEAKER_02 6:21

I'm just wondering if you went down to Grant Park or anywhere in downtown Chicago during the 1968 convention.

SPEAKER_01 6:28

I did not. I um was rather forcefully told by my parents that I could not.

SPEAKER_02 6:36

Okay. And uh did you uh stop by the uh the Chicago 7 trial?

SPEAKER_01 6:42

I was away in college by the time the case was being tried. So no, I didn't, I didn't watch the trial. Um, I certainly followed it in the newspapers, but I I did not watch it, no.

SPEAKER_02 6:53

So the last time that I was in Chicago two summers ago with my son, I made sure to finally visit Grant Park, pass by the uh courthouse that had the uh that had the trial. Jules Sherry, who's uh a good friend of mine, who's a civil trial lawyer in Chicago, told me he was actually um he was actually uh sworn into the uh federal bar by that uh that judge, what's his last name, Hoffman, who he actually swore him into the bar. Uh but uh and and then uh as a counterpoint, as a loud lighter counterpoint, uh we tracked down some of the landmarks from the Blues Brothers movie, and unfortunately found out that uh the uh building that they used for uh Ray's musical instruments had been either raised down or burnt down. And I I think that may have been through uh through some rioting, but uh, but that's my memories of it. Uh Andrea, you all you eventually became a public defender lawyer. Is that where your criminal defense career started?

SPEAKER_01 7:57

Yes, it is. That was my first job out of law school. Um, and uh I was there for the about 14 years, all told, before I began running uh the agency that represented all the death row inmates in Illinois. And then I went into clinical teaching. Um, so I was a professor at the University of Michigan for five years at DePaul uh University Law School for a long time, maybe 14 years, 13 years, something like that. And then I was the dean at Valparaiso Law School. And now I am no longer a full-time academic. I do teach um some courses at Iowa Law School, but I am primarily a criminal defense lawyer in private practice now. So that's the uh quick and dirty overview.

SPEAKER_02 8:42

So I started my criminal defense practice with the Maryland Public Defender's Office in 1991. What motivated you to start your legal career with the public defender's office?

SPEAKER_01 8:54

Well, I went to law school, you know, to save the world. Um so you can thank me later if you'd like. I went to law school because I wanted to have the chance to effectuate change and reform and make the the world a better place. I know that sounds corny, but I um that has belief has not changed at all. Um I'm a little bit more politic and tactful than I was in the beginning, but that's about all. Um and so I knew I wanted to do something where I would be in the midst of things that had to do with, you know, individual rights, the the poor, the oppressed, that kind of thing. And um, I was very fortunate that the law school I went to, Antioch School of Law, which was in DC, had a clinical program at a time where those were unusual. And I got to try all kinds of things. I did some civil rights litigation, uh, labor-related. I did uh, you know, some criminal defense, some juvenile representations, and you know, all different kinds of things. I learned for the sake of all concerned, I should never ever have anything to do with the FEC again. Um, and um, I had a pretty good idea what I was good at and what I liked. And um, criminal defense was the choice, and public defender was the choice because, you know, there's always this um this debate that people who want to effectuate change have, right? Do I do policy-related related work? Do I go into politics? Do I write bills? Do I do that kind of advocacy, or do I, you know, try to help individual people? And I was just drawn to help individual people, um, and maybe along the way make the law a little better, which I like to think I've done.

SPEAKER_02 10:40

So in your autobiography, Angel of Death Row, you said that you also got into uh Georgetown Law School. And I figure a lot of people would uh think, and as I think, that shows a lot of dedication by you, that you chose Antioch instead. You chose the law school that was going to work for you rather than the law school that was gonna look best on your resume with law firms.

SPEAKER_01 11:04

I did. And I don't regret it at all.

SPEAKER_02 11:08

Um I thought that was fascinating that uh Antioch uh required its law students to live for, what was it, for two weeks with a local family?

SPEAKER_01 11:19

It was actually longer than that. I've forgotten how long it was, though. But yes, you you had to live the idea was that you would have some sense of the population we would be serving if you actually lived in the neighborhoods where they lived. And um, and so I did that. And I ended up having a, you know, niece, aunt, or godmother, godchild kind of relationship with the woman I was fortunate enough to meet um that lasted until her death. Um, I it was a profoundly um moving experience to be with her and her family um from every point of view.

SPEAKER_02 11:59

And um now to me, you're you're one of the giants of uh persuaders and trial lawyers. And I take it that it just didn't come from birth. Who are some of your greatest mentors and heroes that helped you become such a great trial lawyer?

SPEAKER_01 12:16

Well, first of all, thank you for the kind words. That's very nice. I um, you know, some of them are people that I saw doing a great job trying cases. Um, you know, I had the good fortune of being mentored by um the late R. Eugene Pincham, um, who was one of the very first African-American lawyers in Chicago, uh, and who was just a great trial lawyer. I I worked with some very fine lawyers like Bill Murphy and and Dan Radokovich and people like that in uh in Chicago. But one of the things that was um difficult was there was no one really for me to emulate because there were no women. Um when I started law school, uh maybe five percent of the women in law school were women, maybe 10. Um, and it was a very new phenomenon, which helped and hurt both. Um, it made me quite visible. Um, and that may have helped my career some. Uh, but it also meant that if I was in a situation where I was begging for continuance because I just wasn't ready, um, that was very visible too. Um, and I was the the big experiment in the public defender's office because um I set my sights on becoming a part of the homicide division. Um, and they didn't let, quote, girls in there. I was, you know, the experiment that was supposed to fail. And I ended up running the that part of the office. And um, as it turns out, I'm the very first woman in the United States to ever um try a death penalty case as lead counsel, believe it or not.

SPEAKER_02 14:02

Well, you know, I was born in 1963, and uh I knew that there was a lot of sexism going on during the, especially during the first two decades of my life, and it still continues, but but I was stunned to learn that statistic that you're the first woman to have been first chair on a death penalty case.

SPEAKER_01 14:22

Yeah.

SPEAKER_02 14:23

We we have much farther to go, but I'm happy that you've helped bring us uh farther along.

SPEAKER_01 14:29

Thank you.

SPEAKER_02 14:30

Um, what can you tell the audience about um anything else you've done to to further the cause of uh women working the law, minorities working the law, and just to smash uh racism, sexism, and and all the other isms?

SPEAKER_01 14:47

Well, I don't know that I'm responsible for all that much, but there's some things that I I have helped with, certainly. Um and you know, one of them has to do with hiring people who um, you know, when I was running the death penalty resource center, I hired people that were not white guys. I hired some white guys too, but you know, I I hired other people. So I mean that's part of it. But part of it is also that there's this myth. I don't know if you've ever heard it, John, but it there's this myth about um dragons, and that if you have the true name of a dragon, if you know its name, you have power over that dragon. And I have found that if I speak the true name of what I'm seeing, um, if I see a judge behaving in a racially discriminatory way, and I say something about it, I don't make friends necessarily, but I at least stop it for a little while. And you you if you don't say anything, then you're going along with it. And and it becomes a delicate balance, as you might imagine, when you have a judge who has great power over your client, and it's your client after all, whose life is in your hands, um, and he or she, usually he, is making all these kinds of remarks because it's not my my battle for me, it's my battle for my client and with my client. And so there are a lot of things that go into it in figuring out how to uh to navigate those waters. Uh I'll I'll give you an example. Um, I had a a case in front of a judge who, well, in his chambers, he had a a uh dartboard, and on in instead of like numbers or colors or whatever the heck on a dartboard, he had different sentences, and the death penalty was a bullseye. Wow. So that kind of gives you an idea of what I'm talking about here. And um, you know, I had a case where we were in chambers, I forget, we were talking about scheduling and some other kinds of things. And, you know, all this, of course, is going to impact my client who's, you know, potentially facing the death penalty. And so he and the prosecutors also the office set up. So, you know, he had his desk, right? And then he had two chairs where the prosecutor sat, and then he had a place where the defense was supposed to sit that was on this very, very low couch, you know. Oh my gosh. So I didn't sit. Um, and um, and anyway, and the the door to the antechamber where his clerk and sheriff and everybody would sit was open. And we're back there, and you know, there's a small talk like usual in chambers, you know, weather, sports, whatever it is. Um, and then the prosecutors and he start telling uh racist jokes. I mean, there's no other way to call it, you know, what did Willie do when, you know, that kind of thing. And I'm miserably uncomfortable, and he knows it, he's enjoying it. And what do I do?

unknown 18:01

Right?

SPEAKER_01 18:01

It's not I want to know. It's not in public if I engage with him, it's he might yell at me, but he's gonna hurt my client who's black. And if I don't say anything, I'm a part of it. And so I ended up using what is has become over the years a way of diffusing things and um giving people space to back down, which is humor. And while I was sitting there trying to figure out what the heck to do, standing there actually, um, a co a reporter walked by in the antechambers for uh, I think the Sun Times, and I said, um I said, Oh judge, I just saw Miss Sweet from the Sun Times or Tribune, whatever it was. Um, you must have an important um you know case up today. So he just kind of looked at me and I said, you know, I know you're just joking, but what if she walked by here, heard those jokes, and thought you were actually a racist? Yes. I love that. But of course, sometimes I don't think of those things, so I'm on the elevator on my way home. So I can't say I always figure out what to do right away.

SPEAKER_02 19:15

Well, now there's that part of your autobiography, uh Angel of Death Throw, speaking of uh racists or people who are small-minded. So that man who um where you asked him what his view of uh what was his name, Rokowski or whatever, who was your foreman uh for a murder case? You asked him his his views about uh gay people and um and and he didn't have too open-minded a response, but he ended up uh being the four person, and the jury acquitted. So uh can you share with the audience at what point did you realize that maybe this uh this jury four person wasn't as narrow-minded as he may have come out to be, and maybe the extent to which maybe he was just exaggerating at first or not?

SPEAKER_01 20:05

So this was the case. It was a uh a self-defense case. My client uh just used his first name, Tommy, was a gay man in a relationship where he was being battered. He'd been in this relationship a long time, and his partner was physically abusive to him. And uh they had an argument the night of the uh of the killing. It was in the kitchen, um, you know, he was getting hit. He ended up stabbing his partner once with a knife, um, almost like falling as he did so. So it was a very good self-defense case, um, you know, mutual combat, uh, et cetera, et cetera. Um, but there were problems that had nothing to do with the with the self-defense that I was worried about. My client was black, okay, always, you know, you can't underestimate how much that means. He was gay, and this is long before anybody was allowed to get married or even announced that they were gay. You know, that was it was just not, you know, we used slurs to refer to gay people and all that. And then um, and third, he was in a battered relationship. And so I was very worried about all this. And so when I um started picking a jury, operating on my own prejudices, I picked out someone to sort of work on who looked like the worst possible juror for the defense. He lived in a suburb where I think you had to take an exam to prove how racist you were to move in there. Um, he worked at at a at a uh Western Electric, which you know could be similarly described at the time. Um, you know, he was wearing uh uh one of those sort of lumberjack kind of shirts. He had cigarettes rolled up in his uh sleeve, you know, just a sort of Joe Six Pack, not my kind of guy at all. So I figured, well, I'll I'll try asking questions with this guy first and then you know maybe everyone get acclimated and we can have a real conversation. So um I started asking questions about um you know batter relationships and then I I you know asked I said you know um I asked him some questions about race I said you know you know because my client's black he's like I could see that you know anyway and then I I started asking questions about people in gay relationships and so at this point he started to get this you know that look sometimes that a witness or juror or whatever might get that kind of glazed over look like what the hell is going on here and and I said I bet you're wondering why I'm asking you these questions and he says well you know little lady which was funny all by itself since I'm six feet but um he he says little lady I am wondering about that I said well here's the thing we believe I know the prosecution doesn't agree but we believe that we have a very good self-defense case but my client is gay he said I figured he's black I could see that he was in a better relationship you know okay and I said and all these things I'm worried that they're going to get in the way of a juror such as yourself deciding whether or not you know this is self-defense. That's what I'm I'm worried about and that's why I'm asking these questions. So I just stopped for a second and I said so should I be worried and he says oh boy you should really be worried and he turns to a guy that he knows from Western Electric too I guess and says Joe Joe you better tell her you know you know don't like those faggots you know that right and he starts doing voidier with me and for me and I realized that this is a guy who because he could name his prejudices could see them.

SPEAKER_02 23:53

And so I kept him much to the shock of the prosecution and he ended up being my foreman it was very quick acquittal I don't even think it took took an hour maybe a little more than an hour and uh he just when he when he walked out I just kind of looked at him he kind of did a little salute and went on his way and um were were you questioning yourself about leaving him on the jury before you got your verdict?

SPEAKER_01 24:20

Yeah I was but it just it just felt right that's all I can tell you it just felt right and so I did it.

SPEAKER_02 24:32

Well Andrew I take it that you don't work just a 40 hour week and with all that time you put into work correct me if I'm wrong I don't know if you're still doing the CLEs but for years at least you were teaching at seminars including the National Criminal Defense College. Are you still doing that? And and how did you uh how did you make the time to do that other than passion and maybe that's what it was well I am still doing it.

SPEAKER_01 25:00

I I'm not doing it every two or three weeks like I was for a while but I I am still doing that. I'm gonna go teach at the Darrell Death family college uh next month um and I got a talk for the Ohio bar next week I think it is so you know I I'm still doing that I I enjoy it um I feel I do have some things to share that may help other people you know think about something in a different kind of way. And lately I've been uh very concerned about and involved with a committee for um NACDL regarding the criminalization of reproductive rights. Yes and uh we've uh just published a manual to help people um who have the clients out there that are getting charged with crimes for you know ordering abortion drugs through the mail for their daughter um or one of my particular favorites is there was a case I I think it was in Alabama where um a trooper pulled over this woman black woman who was driving and um you know said she was driving erratically or something and when he looked at her he said this is in his report according to the the lawyer I was helping he said she looked pregnant to him so yeah um and so he they put her they locked her up charged her with child endangerment and whatever else um and as it turned out um she wasn't pregnant uh she was actually menstruating they kept her in jail for two days like unbelievable you just disappeared John did you mean to do that I disappeared because I plugged in something to see what time it was can you hear me now?

SPEAKER_02 26:55

I can hear you fine. Oh good okay well don't let me touch electronics I'm a Luddite.

SPEAKER_01 27:00

Okay.

SPEAKER_02 27:01

So she was kept in jail for two days. Yeah was that the end of it for her case as far as I know I mean I I was just talking to the lawyer when he was you know trying to think about what kinds of emergency motions he could file and whether he could he could do a um uh a habeas corpus a state habeas corpus right to the the Supreme Court maybe it was Mississippi it was one of the two I'm I'm not sure which honestly I don't remember now um to what extent do you believe in the uh power of storytelling I have to imagine that's a big part of your persuasion approach it's it's the whole thing I mean people do not make decisions based on some kind of you know logical you know ones and zeros and you know this adds up to this and this adds up to that that's there's no explaining our politics in any other way people vote based on their heart or their stomach or whatever part of anatomy they identify with and then they rationalize it later for the most part and what is more likely to be persuasive and to help someone see someone else's world is storytelling.

SPEAKER_01 28:18

You know one person's death is a tragedy you know five thousands is a statistic and I I know that that's a a trope but it's a true trope and so I think it's important that when you're representing someone that you find what their story is as a person as as well as having to do with the case itself and figure out how to tell that story in a way that your jury can hear it. And that's why jury and you know selection is so important because some people just can't hear you right they don't they don't like you they they don't think mental illness is a real thing or whatever it might be. And you have to know what your story is and find people who can hear you otherwise you have no chance and um you start your story telling at the uh jury selection stage don't you well I do I mean I'm not allowed to like give an opening statement but I I try to ask questions open-ended questions that will get me information about what people think and how they think and how they make decisions. I try to make it as conversational as I can most lawyers I feel when they do void direct they don't really think about it very much. They're just operating on stereotypes both the prosecution and the defense right and um you know do they work do they not work are they old are they not you know those kinds of things and that tells you something but it doesn't tell you very much. It doesn't tell you how this person thinks and whether they care about things like domestic violence or not. You know you can't know that by demographics and the only way that you're going to have a chance of knowing that is by asking open-ended questions listening to the answers and following up well and making sure that you understand what is being said and you're not putting your own uh your own uh reasoning or rationale onto it I'm I I I'm just thinking of an example in a in a death penalty case I was picking a jury and um the the prosecution was their turn of bat so they were talking about the death penalty and there was just this darling little old lady you know just as cute as she could be um I mean almost smelled like apple pie right I mean she's just so cute and uh this the state was asking her how they felt about the death penalty and she was like well I know it's the law but gosh it would be so hard and I'm like yes it would be hard for her to kill my client great but uh you know I was taught by Kat Bennett and I know you have to find out what does the word hard mean to her? Right? It might mean something different. So when it was my turn to question I I repeated her answer and I said could you explain what you mean by it would be hard she says well they just take so long to kill them oh my gosh she was like a killer.

SPEAKER_02 31:24

I don't so yeah gotta ask so when you're doing jury selection do you ever decide that you're gonna focus on asking questions of a uh certain of the uh potential jurors the the veneer panel members rather than talking to each of them individually or do you talk to each of them individually? Well judges control a lot of that so right sometimes they will make you ask questions of a group of you know four eight or twelve um which I hate but you know sometimes you that's what you're stuck with um but I prefer to talk to every single juror individually yes and you know I'm I'm in jurisdictions where we get to do jury of war idea questioning the potential jurors and others where we're not where we just have to submit questions to the judges.

SPEAKER_01 32:13

Have you had jury trials where you're doing that I've had jury trials like that but um not not in recent history I've you just it it becomes easier to just let me do what I want at a certain point. You know if like so for example in a federal case it was a terrorism case we're picking a jury in um I was that was my job in the case you know I was not lead counsel or anything and we'd asked for attorney um conductive void was denied we asked for special questions you know all that stuff that the judge I'm gonna ask all the questions you know you can submit questions to me and so then I asked her how does she want to handle follow-ups I said if you ask this question and you get an answer that I feel needs to be expanded to want me to uh wait till you've finished talking to you know a certain number of jurors approach right away how do you want me to handle that of course she hadn't even thought of that I don't think and um and she said well we'll take a break every so often and then you can you can uh bring it up I said so I'll I'll just write down what I think the follow-ups ought to be and I'll bring them to you will that be okay and she said sure after we had gone through I don't know two jurors and I'd been up and down and up and down and up and down she was like just ask the questions excellent it's just easier and I wasn't asking will you vote with me right I was asking what did you mean by what was that experience like can you give me an example of you know and so that's not you know what what some judges fear is that you're trying to indoctrinate the jury but that even if that's what you would like to do say getting them to say yes to something you say doesn't tell you a damn thing except that they are happy not to have to talk too much.

SPEAKER_02 34:01

I'm interested in uh hearing your take on um you're having friendships or not with prosecutors I won't name his name but he's uh a fellow Midwestern of yours at the National Criminal Defense College and he said you know he said he he was single at the time there was a prosecutor a woman he otherwise would have asked out on a date if she wasn't a prosecutor he said he just couldn't bring himself to do it and and I I'm wondering on your approach to being friends or friendly with prosecutors or not I always start from the idea that they're a human being just like I am and that there's a you know they're to the degree that we can be cordial and friendly I would like to be I also though have learned through having waited through many many many Brady violations in my time that I I'm very polite but I do my own checking.

SPEAKER_01 34:57

I don't necessarily trust that a prosecutor might not cheat. And so I don't when I get police reports from them I send my own subpoena too because I want a court order that says everyone thing had to be turned over to me in the event that something's hidden because I've had it happen too often. And I don't mean to cast dispersions on on most prosecutors I don't think would do that, but some will. And so will some police and you have to be you know cautious about that. I also don't one thing I won't do uh is joke about my cases or my clients with the prosecutors which I hear defense lawyers doing and I find profoundly distressing. That doesn't mean that I can't just be you know normal or human have a human reaction to something that you know my client did or said like anyone else would but um you are always advocating in the elevator in the bathroom in the hallway in the lockup wherever you are you're always advocating and if you give the impression that this is just a job to you um to anyone that is how you'll get treated and your client will get treated and um it's just wrong and if you can't do that if you can't be an advocate for your client even you know your clients who are annoying because many of them are um and you know some of them find me annoying I'm sure um but if you can't do it you shouldn't represent them.

SPEAKER_02 36:32

Well those are great points one day I remember saying to a prosecutor you know I'm not sure if um you get irritated me a lot he said I don't get irritated at you he said I'm puzzled about how you make any profit it's he said I don't think you do anything but work.

SPEAKER_01 36:49

I said to myself great I want all prosecutors to think that there's there's that's a great impression for them to have of me I think it is and I mean and that's why one of the things that annoys you know it prosecutors is I'm I'm a big believer in motions practice pretrial motions practice um and a lot of that is is because of all the death penalty work I've done and you don't I don't know if you've ever John read your uh yourself in a transcript yes it's humbling experience is it not I mean you know that that uh that motion that you argued where everyone in the courtroom was just enamored of your brilliance and your mastery of the law and the facts and uh then you get the transcript and it's one run-on sentence no subject no verb no object and it's just like you can't believe it and so I really dogged the record as much as I can um for you know for appeal purposes if we lose um and uh but also because it creates a certain atmosphere of respect um from the prosecution and from the judge even when they're annoyed with you you know there's a judge uh in one of the suburban courtrooms when I used to come out there he had this big bottle of extra strength tyonol and he put it on the desk as soon as I come in I was like yeah that's great well I remember uh one section of uh your autobiography where you were writing about that judge who um I think it was the one who wouldn't let you call your uh your essential witness to get the acquittal to get an acquittal on your murder case and uh and he threatened you with contempt.

SPEAKER_02 38:24

So and wasn't he the same one where um at the end of the trial when he said you know he got some bad apples out there and you said something like I'm gonna run you out of office or I'm gonna make sure you run out of office and I'm gonna make sure I uh win this appeal and you did both.

SPEAKER_01 38:41

I did I was mad I have a temper it's not my best quality I try to but I I was extremely angry you know uh well first of all the first day I walked in this judge this judge's courtroom you know um I'd never met him before I certainly he had a reputation and he's like who are you as I walk in so I tell him my name and I have a new case just coming off arraignment says well what are you doing here don't you know I don't like women lawyers I'm like oh man this is gonna be fun and you know so I said well I ran out of substitutions for cause judge so yeah here I am um you know we we did not get along very well at all and he just ruled with the state no matter what and um and he'd also been just terrible to some of the lawyers I work with that were African American he'd been name calling there's all kinds of stuff and I just was um and one of them became a judge himself Jim he had I forget what he called him it was it was really something boy I can't remember um you know in court and you know in front of the jury I mean just terrible and um it had been a a sexual assault case and he gave this guy a lot of time after he was convicted he says because you know you can't go around picking on you know nice white girls like that I mean he said that shit and so Jim and I um well first of all I wrote the appeal myself at night because I was mad but anyway and then um I I uh he and I went to pretty much every African American church social group whatever political group anywhere we could go for a couple of months with those transcripts and just said vote them out and they did his own words voted him out of the office yeah excellent now you mentioned mental health earlier um to what extent have you uh defended people who've had serious mental health issues and uh what are some of your approaches to uh helping them help themselves and and helping you help uh help them in dealing with that well you know mental illness is uh no respecter of boundaries anyone anytime can be afflicted with a mental illness and it um it can be quite devastating my clients because usually I'm trying homicides almost exclusively and so my clients usually who have significant mental health problems um are uh the sum of their own history of violence that they've experienced um trauma that they've endured that has uh twisted them many of them have other um deficits uh I client with brain damage because he lives in a neighborhood where all the pipes are lead and he has lead poisoning um you know I and an awful lot of this relates to race uh you know because that's the people who are considered least important are the ones that we uh mistreat and don't have enough protective factors for them. So the question is you know how do you handle it? How do you talk to your client about his mental illness if that's what you see there. How do you talk to them uh and ask them to confide in you um some difficult history it's it's very hard and it takes time uh and most people who have significant disabilities do their best to mask them. And particularly I so I I discovered this you know like way I learned a lot of things by by doing something stupid. Anyway I um I had a client who um we were sort of at the place it was death penalty case and we we're at the place now where we sort of had to take one road or another we had to make a decision about how we were going to proceed with the trial and with mitigation and you know we'd done the investigating etc and so I I sit down with him to tell him you know we need to make a choice and there's you know some consequences if you know we do this there's some consequences if we do that there's you know we win this we lose that you know I'm trying to explain all of this to him and he just gets mad. He starts swearing at me fuck you and fuck a consequence and all that kind of stuff. And I you know nobody particularly likes being sworn at and I I obviously we're not going to have much of a conversation that day so I just left and about a week later I attended a lecture by um the late Charlotte Holdman who is kind of one of the mothers of mitigation work and she was talking about in Intellectual disability or mental retardation. And she said, you know, one of the things that people do who grow up in tough circumstances who really can't understand everything is that when they don't understand anything, they get mad, they break bad to cover it. And I'm like, oh my God. He didn't know what I was saying. He didn't know what the word consequence meant. And that's why he was yelling. Because he couldn't say to me, I don't understand you. It's not safe when you grow up in Englewood to be vulnerable. It's not. And so that's part of what you have to tease out. You know, is what you're seeing something that it, you know, is a mental health or disability, or is what you're seeing just general natural assholeness, which is, you know, also present uh in the human population. Um, you know, you have to figure that out. And you have to be willing not just to listen to their stories, but to hear them. And that exacts a toll.

SPEAKER_02 45:17

Yes. Yes. Are you willing to share with everyone how you deal with that yourself then?

SPEAKER_01 45:28

I mean, sometimes better than others, honestly. I mean, sometimes I uh well, first of all, you have to learn to take care of yourself physically. And for me, it's swimming because it's you know the only sport you can do where it's hard to hurt yourself. I've done it, but you have to work hard. Um, so it's important to do something to take care of yourself physically and to have other things that you do in your life. Um, you know, some people think that you need to live the life of a monk. I don't agree with that. And, you know, I have kids and a perfect 10-year-old grandson, and uh, you know, that's I I think you can have a fuller life. Um, you just have to figure out how to make it work as best you can. But I if I was gonna give somebody advice about what to do with distress, you gotta let yourself feel it. You can't bottle it in or you end up drinking scotch or whatever the equivalent is for people. And and if you get mad or you get upset, that's a good thing. That's because you're remaining a human being in this business, talking to people that most people don't understand are human beings, too. Nobody is only the worst thing they've ever done in their life. No one. And I remember one night I was um in a jail talking to a client of mine, a batter woman, one of the first batter women I represented, and um, we talked about everything, the two of us. I mean, she had really come to trust me, you know, I got to know her kids, etc. And it was a good self-defense case. She had incredible guilt about it anyway. And so she said to me, There's something I haven't told you. When we're getting ready to try the case, like the day next day or the day after. I'm like, you don't want to hear that there's something you haven't told me right before trial. I'm like, oh no. I said, well, what is it? And she said, I'm just gonna show you. And she lifted up her shirt and showed me round burn marks all over her chest from where this person put cigars out. And I I mean I said this, I know I shouldn't have said it, but I I just felt it right then. I said you should have shot him in his sleep. That's how I felt and she cried, I cried a little too, and and then I when I when I was leaving, I realized what I felt was something I could help the trier fact understand. I could feel it with them.

SPEAKER_02 48:33

Yes. And uh is it true that you really brought the emotions from the jurors sometimes making them cry? Because I've been told there was a prosecutor who made a motion to not allow you to make the jurors cry.

SPEAKER_01 48:49

It was actually a written motion, which is hilarious. It was definitely a case I had who wanted a motion uh to preclude me from crying or making the jury cry, honestly. And and I and the judge is looking at me and says, Are you are you gonna uh cry, Miss Lyon? I said, only if they make me. And that was the end of that. But I yeah, yeah. I and it isn't necessarily tears, it's letting people in, your clients in, the jury in, everyone in, so that they can feel what they need to feel to be able to vote in the appropriate way. And that may not be with me. You know, I may wish to win this case because I think it should be acquittal and not a second-degree murder or whatever. It may not be with me, but if I don't invite them in, I have no chance. At least that's what I feel.

SPEAKER_02 49:44

Well, exactly. So to what extent um, well, see, you were lucky to be at Antioch then, because I guess Antioch was really giving you a chance to learn how to uh how to persuade and advocate well there, whereas a lunch a bunch of these trial advocacy classes in traditional law schools don't do that at all. It's true. Yeah. And um now at what point when you started doing battered uh well, I don't even know what we're supposed to call it, battered women's syndrome keeps out the men, but we know what we're talking about. How long had the battered women's syndrome been succeeding at the time you first um took that approach? Um how new was it?

SPEAKER_01 50:31

It was very new. Um, I could not find anyone in Illinois who'd ever used it as a defense um at the time I tried it for the first time. Um so it was very new.

SPEAKER_02 50:43

You're perhaps too modest to call yourself a pioneer in that area, but apparently you are.

SPEAKER_01 50:48

It's just accidental. You know, you learn what you need to learn, don't you? I mean, then it's one of the joys of practicing law is you're always learning something new.

SPEAKER_02 50:57

Yes, the name of this podcast is uh Beat the Prosecution. I assume you've already told everyone, well, because prosecutors listen to this too, I'm sure, what you're willing to tell the public. But is there anything else that uh you you think that the the listeners should know about uh persuading, realizing that yes, prosecutors are listening to I think just like you don't want to make assumptions about jurors based on demographics or their profession, or your client or your client's family, you shouldn't make the same presumptions about prosecutors or judges.

SPEAKER_01 51:35

I mean, yes, you're gonna run into you know zealots uh who just enjoy hurting people. But most people, most police officers, most prosecutors are idealistic in their own way. It's not a way that I would choose, but that doesn't mean that they don't care and they have a hard job. As a prosecutor, you have to do two things simultaneously. You have to look out to make sure you're doing justice, and then there's this push to win, and the push to win can overwhelm the justice push. It's very easy to slide over that line, and it's very hard to come back. So I try uh to listen to them as well. Sometimes it helps, sometimes it doesn't, sometimes they just call me names. Uh, there was a period of time and when uh in like four or five juries in a row where the prosecutors offered me Academy awards and rebuttal. Um, you know, I what can I say? But um I I don't give up on everybody, or I don't give up on anybody. I try not to.

SPEAKER_02 52:50

Well, that's really well said about recognizing the humanity, even in your opponent. Ramsey Clark blew me away when I picked him up at his mother's home in Washington, D.C. to drive up to visit Phil Berrigan and friends uh for the plowshares trial that we did in 2000 in Baltimore County. And I said to him, What do you think of um J. Edgar Hoover? And uh he said, I think he was well-meaning. I don't think he was trying to do anything mean. That just stunned me because for the for the listeners who know about Ramsey Clark, he's Ramsey is uh was not stereotyped as anything on the right wing. Uh that was clearly identifying with humanity there. Okay, so do you have a manifesto about how to improve the criminal justice system, other than maybe eliminating most of the prisons, except for the worst of the uh rapists, robbers, and uh murderers?

SPEAKER_01 53:53

Well, I I do I do have a uh another book that came out a couple years ago, um, which is called uh Fixing Injustice in America, the case for a uh defender general of the United States. Um, I think until we start including the defense voice, the voice for the poor, the voice for the accused in the our conversations about criminal justice, and everybody wants criminal justice reform, they just don't want to actually do it. Until someone is in the room who knows what we know from doing the work, um, it's not gonna change. If, you know, John, you or I had been in the room when they were discussing the 1994 crime bill, we could have told them exactly what the hell was going to happen, who was gonna get prosecuted, and how it was going to happen, because we're at the other end of it. But the only people ever in the room are police, prosecutors, and politicians, and they don't know that. And therefore, they make some really, really big mistakes. Um, you know, the Anti-Terrorism act and effective death penalty act of 1996, thank you, Mr. Clinton, is probably one of the worst things that ever happened. And there was no one there to say, this is what this will do. Do you understand that? Because they did not. I mean, you know, I do some habeas work now. I spend years sometimes litigating whether I can litigate, not instead, just like, how about we just get to the issue and you decide if it's a good one or not? How about that? Instead, you know, was this raised at the right time while you were on your left foot, you know, hopping on a Tuesday? So I really think we need to make a big change that way, and or anyway, and I think this is one of the ways we could do it. So that's my uh my rant.

SPEAKER_02 55:40

Good. So that's another one of uh Andrea's books to read, as well as the rest, which I think they're all listed on Amazon. Andrea, uh, this is just amazing for me, and uh, I'm sure for a lot of the audience members. Is there anything else you'd like to share with everybody before we uh close off?

SPEAKER_01 56:00

No, it's just been a pleasure talking to you, John, and I hope that you know I've helped somebody here a little bit.

SPEAKER_02 56:07

You helped me.

unknown 56:08

Okay.

SPEAKER_02 56:09

All right, John. Thank you so much, everybody. This has been Beat the Prosecution. I'm a criminal defense and DWI defense, Lauren Fairfax, but the spotlight today really goes on Andrea Lyon. She probably has more clients than she can deal with, but if you want her services too, she's in Chicago, Illinois, and that's L-Y-O-N signing off.

SPEAKER_00 56:32

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. Nothing discussed on our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or to individuals who have paid for a consultation. We welcome you contacting us via email at infobeatheprosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.