Lawyer Verdict

He criticizes his own case

Like any good defense attorney, James Crew of Hayward, Calif., is used to arguing vigorously and sometimes ingeniously on behalf of defendants he suspects are guilty. That was what he did in 1977 for Barry Braeseke, then 21, who was charged with murdering his parents and grandfather. Crew urged the judge to suppress two confessions in which Braeseke matter-of-factly described shooting his family. Crew's rationale: although he later changed his mind, the youth had originally asked to speak to authorities "off the record." The argument failed. But later the California Supreme Court--on an appeal handled by a different lawyer --agreed that the confessions were tainted and threw out the conviction.

Was Crew gratified that his arguments were vindicated and his client at least temporarily let off? Not a bit. In fact, he was so troubled that last month he sent an extraordinary letter to the U.S. Supreme Court, which had just decided not to hear a further appeal on the case. Wrote Crew: "It is difficult to understand how a system of laws conceived to protect innocent people can become twisted to give freedom to a person who deliberately kills three innocent human beings [and] thereafter confesses. No wonder the citizens in this country refer to attorneys in a disrespectful fashion and to many of our courts with comparable lack of respect."

Crew's letter has elicited no reply from the court, but it has stirred passions in the California legal community since he sent it to the local press. Says Los Angeles Criminal Lawyer Anthony Murray, a member of the board of governors of the state bar association: "It is inappropriate for a lawyer to take one position as an advocate and then to publicly decry that position as a private citizen. He's in effect saying, 'I took position but I hope to God the courts don't listen to me.' If a lawyer does this he is prostituting himself." Crew, 49, who has a reputation as a tough, able defender, insists that it is one thing when juries wrongly acquit people who are guilty but quite another when judges allow them to go free. "Jurors are lay people who can make mistakes," says he. "We know it is not a perfect system. But I expect the highest levels of judicial common sense from our highest judges."

As Crew's letter pointed out, Braeseke not only confessed before his trial, but in 1980 he repeated his chilling story to a national television audience when interviewed by CBS Correspondent Mike Wallace on 60 Minutes. This summer a hearing will be held in Alameda County Superior Court to determine whether that televised statement may be used as evidence in Braeseke's retrial. Meantime, Braeseke, who is being held without bail in San Quentin Prison, may have been helped, in a supremely ironic and inadvertent way, by his former defense attorney. If the publicity generated by Crew's letter prevents Braeseke from being able to get a fair trial, the state will have to set him free--and allow him to inherit more than $200,000 left by the three people he murdered.

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