Temples of Democracy


The district attorney is a county official even in cities so large that a gaggle of assistant district attorneys is required to keep up with the trial work. In those cities, an assistant district attorney often turns out to be a neatly dressed young man with winged-tip shoes who conducts the trial methodically, following a loose-leaf notebook he keeps on the table in front of him. Occasionally, a flashy assistant district attorney comes along to play to the courtroom buffs and cultivate the press-he is likely to specialize in pornography trials or the showier murdershut normally assistant district attorneys are relatively cautious about what they say outside as well as inside the courtroom. In criminal trials, reporters tend to be more comfortable with defense attorneys, who are often indiscreet enough to hint that their client is, in fact, guilty—the assumption being that a defense attorney who wins acquittal for a guilty client must be particularly brilliant. At lunch with a reporter after the jury goes out, a defense attorney may raise his martini and say, “To Justice-whoops, what am I saying! To Not Guilty.” A defense lawyer can afford the style of a man not haunted by the prospect of having a victory reversed on appeal; there being no appeal from Not Guilty, he only has to win once. The caution of an assistant district attorney comes not only from the danger of reversible error but also from the conditions of his employment: a defense lawyer is engaged in private enterprise and an assistant district attorney is a man who works for the government.

In large counties, the district attorney tends not to do much trial work himself, husbanding his courtroom skills for the occasional case that happens to be politically significant or particularly juicy. In the late sixties, about the only case anybody in Houston could remember the district attorney of Harris County having tried personally was one in which Lee Otis Johnson, the noisiest black militant in town, was sentenced to thirty years in the penitentiary for allegedly giving away one marijuana cigarette. The most trialwise district attorney that I ever met -a commonwealth’s attorney officially, since that is what the D. A. is called in Kentucky—was a man named Daniel Boone Smith, who practiced his art for thirty or forty years in Harlan County, one of the Appalachian counties in the eastern part of the state. Smith, who seemed to be called Dan’l Boone by just about everyone in the county, was said to have tried more capital cases than anyone in the history of the republic. Eight or nine years before I met him, Smith got curious about how many murder defendants he had prosecuted or defended—he did some defense work on the side in other counties—and his secretary counted up 750. Smith was able to amass a record like that partly because of longevity and partly because he was a quick worker (“Some people will take three days to try a murder case,” he told me. “I usually try to get my case on in a day.”) and partly because Harlan County, which used to be called Bloody Harlan, has traditionally offered a lot of opportunity for anyone interested in murder trials. Harlan County got to be known as Bloody Harlan in the thirties, when unions were trying to organize the mines, but mountain feuds had made it bloody long before that. Thirty years after the labor wars, Harlan had murders that often seemed the product of sudden drunken anger-one member of a family mowing down another who is breaking down the door trying to get at a third.

Smith, a man who knew his county, was renowned in eastern Kentucky for his ability to select a jury. In the urbanized counties of the Northeast, jury selection sometimes seems to be an exercise in ethnic studies. Is the Irish housewife a strong enough Catholic to take seriously what the Archbishop says about pornographic bookstores? Would the Polish construction worker be particularly antiblack or just normally anti-black? Does that Italian or Jewish grandfather have the sort of warm family feeling that would make him particularly sympathetic to the survivors of a young person killed needlessly in an auto crash? In a place like Harlan County, Kentucky, jury selection has a lot to do with local history—remembering which prospective juror’s uncle may have had a boundary dispute with which witness’s grandfather twenty years before. Daniel Boone Smith knew his local history. He also knew how to talk to eastern Kentucky jurors—how to get his point across with a personal recollection or a country anecdote that had Dan’l Boone Smith as the butt. Hearing him talk to a jury—hearing him recall old Uncle Bob Woolf ord who used to work up at Evarts or describe a case he once had over at Coldiron-it was hard to keep in mind that he was, as he confessed to me shortly after we met, a graduate of Harvard Law School.