Defense attorney Lisa Kauffman protects the rights of 'the unlovable'It's early Monday afternoon in District Judge Douglas Harkin's courtroom in the Missoula County Courthouse.
Outside, rain threatens and the mood at the defendant's table is scarcely better. Defense attorney Lisa Kauffman watches as police cuff her client, Shane Erstad, a father and a convicted unemployment cheat, and take him away. Despite an agreement she worked out with the county prosecutor, which would have freed Erstad and eventually allowed him to move to a $25 an hour job in Salt Lake City, Harkin got tough with the young man.
"I see now I made an error," the judge says. "Mr. Erstad's probation is revoked and the original sentence of five years is reinstated." Her client will serve, Kauffman says, at least three years in the Montana State Prison.
Erstad was convicted of taking unemployment checks without reporting his extra income. His sentence was suspended, but he's in Harkin's court for having failed a urinalysis and for having moved to Salt Lake City without permission. Kauffman pleaded with the court, talking up his employment prospects, his pregnant wife and 2-year-old child.
The job, she argued, would give him the chance to make restitution while supporting his family. Despite the fact that he's a convicted criminal and violated his parole, Kauffman argues, prison is the wrong place for this man. It is such extenuating circumstances that frame the gray areas of the law that Kauffman loves.
A fiery young woman from Chicago, Lisa Kauffman's defense work has been grabbing headlines all winter long. Her name appears on the dockets for many of Missoula's high-profile crime cases. She's defending Mike Haser, the glamour photographer and former publisher of the Missoula Magazine, accused of sexually assaulting his models.
Kauffman also helped a man named Brian Lockhead out of felony assault and intimidation charges after he was accused of attacking YWCA staffer Debby Weinstein. She's defending University of Montana football player Max Pierre against an accusation of rape, and represented Ambrose Martinosky after he missed a curve on Mount Street and drove into someone's living room last summer.
In person, Kauffman comes off as a self-promoter, on the hustle for hard cases and headlines. "I prefer cases that are highly volatile, they're more challenging," she admits.
With an unpublished screenplay sitting on her shelf and five performances with the Missoula Children's Theatre to her credit, Kauffman says she's attracted to the drama-onstage or in the courtroom. "It is a drama, and I'm an aggressive advocate."
Then she gives what she knows to be a darn good soundbite: "Here's a quote for you. I really consider myself to be a mercenary. I don't have a particular cause or philosophy."
But this isn't entirely true. In the fall of 1996, she hired on as the American Civil Liberties Union's first paid attorney in the state, and was clearly excited at the prospect of fighting full-time for the Bill of Rights. At the time, she told the Independent she wanted to use her time doing good things.
"To me," she said, "to have the challenge of having everything I do be meaningful in the short term as well as the long term is a gift.... I don't have to charge money and I can still help people."
That gig, however, was short lived. She and ACLU director Scott Crichton had irreconcilable differences and Kauffman had to go. It is, however, just one example of the difficulties presented by Kauffman's professional life.
She talks of the sanctity of civil rights in eloquent terms, and then uses those precepts to defend sex offenders and domestic abusers. Like one of her heroes, famed defense attorney Clarence Darrow, Kauffman tries to put things in context for her judges and juries, hoping to find individualized justice between the black-and-white confines comprising the letters of the law.
"Most people who get in trouble are the product of a really bad life, and not all of it is the result of free will," she says. "I truly believe in degrees of sin, and the law was designed to apportion degrees of responsibility."
In the few minutes after Shane Erstad's hearing on Monday afternoon, Kauffman second-guesses herself. She wasn't sufficiently aggressive, didn't push the judge hard enough. Taking the big navy-blue bow out of her hair-a prop she says often helps her in court-she speculates further.
"If I had raised my voice," she says, "and attempted to really show how unfair his assessment was, I'd probably have been held in contempt. It's just awful."
But there's more. Her client's personality, she suspects, had something to do with the outcome. "He's an annoying person, but he's not incapable of successfully completing probation.
"You know, someone once said that I defend scum. But I love the unlovable. It's easy to defend the innocent. The challenge is to represent the despicable and force the state to do the same job for them."
Crime, says Kauffman, is her passion. Within that broad spectrum of aberrant human behavior, she has no specialties, no preferences; just a fascination for those who stray from the bounds of the accepted.
Kauffman says this while sipping nutra-sweetened punch on her front porch. The fenced lawn is enclosed by trees and neat flower gardens, the view of Lolo Peak is unobstructed. It's a long ways from Chicago, but her big city upbringing is still evident.
"I was really into cops and robbers as a teenager," she says. "The idea of good guys versus bad guys-how does someone get in trouble? Why would anyone want to hurt anyone else? Why am I afraid to steal? When do people cross those lines?"
This preoccupation, Kauffman says, led her into the courtroom. "I wanted to be a prosecutor," she says. "In college, I majored in criminal justice, but I knew I was just biding my time until law school."
Law school for this kid from an affluent, predominantly Jewish Southside neighborhood (nicknamed "Pill Hill" for all the doctors in residence), meant the prestigious John Marshall School of Law, followed directly by a stint in the Chicago prosecutor's office. In the Juvenile Gang Violence section, Kauffman found both a home and a cause.
"I loved it. It was meaningful work. I was fighting for the right of people to be safe," she says. "There was a lot of autonomy and a good judge. So why did I quit? I stopped feeling good about taking so much glee in punishment."
A friendly, albeit outspoken, woman, Kauffman has rankled many of her peers. From the episode with Crichton to a recent feud with a Bitterroot judge that landed her in jail, Kauffman has shown herself not to be a pushover-and that, say her friends and opponents, can be a weakness.
Assistant County Attorney Fred Van Valkenburg went head-to-head with Kauffman over the Martinosky case. He won a conviction for the man who drove his car through the walls of a Mount Avenue home late one night last August. (The ruling, Kauffman says, is on appeal.) A candidate for the county prosecutor's job being vacated by his boss, Dusty Deschamps, Van Valkenburg is willing to talk critically of his courtroom adversary.
"I think she has a lot of energy, she's pretty intelligent, works hard on things, but she comes from an entirely different area of the U.S. and she learned to practice law somewhere else," he says. "She still hasn't seemed to adapt to the style of practice of law that Montana lawyers engage in."
That style, Van Valkenburg says, is nicer. "Montana lawyers are less confrontational than what I know about the practice of law in other places. They try their best to avoid some of the personal attacks, and are more interested in substance as opposed to procedure. I think Lisa, in some ways, is caught between the two."
It's an analysis Kauffman finds accurate. "I believe in the adversarial system, that it's through conflict and heated debate that new ideas and compromise result. So yeah, I bring a certain contrariness to each case."
And procedural errors-the "technicalities" decried by law-and-order politicians and a frightened public-are not just set up so that the guilty can walk, she adds.
"These aren't just a bunch of lofty ideals that intellectuals sit around and talk about," she says. "I don't believe the ends justify the means. Even the most evil criminal deserves the same protection because once we start disregarding fundamental fairness on the bad cases, we open the door to compromising our system for everyone else."
Kauffman finds in George Orwell's 1945 Animal Farm-a harrowing allegory about Stalinism in the early Soviet Union-a particularly compelling lesson in universal human rights. "I advise everyone-lawyers, law students, anyone-to read Animal Farm. When the pigs took over the farm, they started making little adjustments and excuses, eroding everyone's rights until they forgot what those rights were."
Kauffman has a penchant for literary and film references. She has a self-described love-hate relationship with lawyer-turned-bestselling auth-or of legal thrillers John Grisham ("I know his writing is fluff, but I'm compelled to find out everything that happens to his characters.") and is more likely to socialize with actors and Hollywood types than hob-nob with her fellow members of the bar.
Kauffman's best friend, Wash-ington state comedian and deejay Jeff Conners, says this estrangement was obvious to him as he watched Hamilton Judge Jeffrey Langton order Kauffman to jail for 24 hours last month on a contempt of court charge-a sentence that arose out of a scheduling conflict. Kauffman served only 19 hours, freed by a state supreme court order pending appeal.
When Kauffman couldn't make a court appearance and had another attorney stand in for her without having first asked the judge's permission, Langton lost it, according to Conners. "The judge was obviously in a bad mood and she was the only one present he wasn't likely to run into at a Kiwanis picnic," he says.
During her stay in the Ravalli County big house, Kauffman played cards and watched TV. But what happened emotionally, she says, was more significant than the loss of a few hours. Going to jail gave her the chance to try out a theory: Everyone should spend a day in the pokey.
"The first few hours I was filled with so much rage and anger. Then there was this interesting psychological thing where I started wondering if I really was a bad person, that maybe I deserved to be there," she says. "I can't image someone sitting in a county jail for six months. The overwhelming sense of low self-esteem has got to be long-term."
Talking with Kauffman, it becomes obvious that she's on an anti-jail jihad. She goes on at length about problems with the prison system-the lack of rehabilitation programs, the high number of probation violators living in cells at Deer Lodge-referring to incarceration repeatedly as "inhumane."
"There are a lot of creative ways to sentence people with their humanity in mind," she says. "You learn hate and bitterness. That's it. It's used as revenge, but I don't think that's a legitimate goal of punishment for compassionate, thinking people."
Even in Missoula, where most lawyers graduate from UM's modest program and hang out a shingle, scraping by on the unglamorous divorce, personal injury or estate cases that come their way, attorneys are unpopular.
And within the realm of the hated, defense lawyers are seen as the worst, working magic to get the guilty off on technicalities. But as a group, defense lawyers have their principles. Many describe themselves as politically liberal, and discuss the philosophical underpinnings of their jobs in terms of civil rights.
As individuals, some make further distinctions. Paul Ryan, who represented Kauffman in the scuffle with Judge Langton, says he tends to decline sex-offender cases. Mike Sherwood, who defended one of the Sigma Nu fraternity men charged with rape last year, says he likes to know his clients want to help themselves rehabilitate.
The president of the Montana Association of Criminal Defenders, Sherwood likens his job to that of a social worker, though an unpopular one. "Criminal defense attorneys end up being loners, They don't get elected president of the bar, of lawyers organizations," he says.
"I did two high profile rape cases and we got anonymous phone calls, saying how can you represent these people. But I like what I do, and what I do is help people."
Kauffman says she just wants to like her clients-but with cases like Haser's and Pierre's on her desk, she too catches a lot of flack.
"The question I get a lot is how can you represent someone who's guilty? The answer is, I'm not just representing that person, I'm in a way defending the rights of all of us to live in a free society where we don't have lynch mobs, vigilantes and star chambers.
"I essentially deal with the Fourth, Fifth and Sixth Amendments to the Constitution-the right to a lawyer, to not incriminate yourself-that's important stuff," she says.
"I used to be a firm believer in the idea that people make their beds and should lie in them. I don't believe that anymore. We're talking about poor people, with thieves and whores for parents, destined to not know any other life."
If it sounds dramatic, Kauffman's screenplay, called Conviction, truly lives up to that billing. The heroine is a young woman prosecutor working the Juvenile Gang Violence section in Chicago, who has a crisis of conscience when a 13-year-old black boy she is trying to put away for murder turns out to be innocent.
The attorney in the script eventually quits her job in a climatic courtroom scene so she can give testimony about the last words of a dying drug dealer, exonerating the boy.
"It's probably more like an episode of Law and Order than a full-length screenplay," she says. Needless to say, the heroine bears a striking resemblance to Kauffman. The only difference is that her fictional counterpart starts out with her integrity, her empathy for the innocent, intact. Kauffman says she had to build her own from scratch.
"I came in hard-charging, conviction-oriented. What changed?
Seeing all the families I destroyed by putting people in jail."
When Kauffman talks about her two heroes, Clarence Darrow and Oliver Wendell Holmes Jr., she reserves the highest praise for Holmes. But her career more closely parallels that of Darrow, a turn-of-the-century, Ohio-born lawyer with a penchant for poetry and literature, whose quest for justice came with a price tag.
Darrow defended some of the most reviled criminals and accused of his time: John Scopes, the science teacher from Tennessee who tried to teach his students about evolution; Nathan Leopold and Richard Loeb, the Chicago duo who, with cold detachment, kidnapped and killed a young man in 1924; Big Bill Haywood and two other Western Federation of Miners organizers accused of hiring a hit man to kill former Idaho governor Frank Steunenberg in 1905-a task for which Darrow was paid somewhere between $35,000 and $50,000.
Through it all, Darrow appealed to the humanity of his listeners and to their sense of fairness. While justice-loving citizens across the country called for Leopold and Loeb's blood, he saved them from the hangman with a moving summation:
"I am pleading that we overcome cruelty with kindness and hatred with love. I am pleading for a time...when we can learn by reason and judgment and understanding and faith that all life is worth saving, and that mercy is the highest attribute of man."
He ends by quoting a Persian poet, Omar Khayyam: "I do not care about that Book above. Erase my name or write it as you will, so I be written in the book of Love."
It is such compassion that Kauffman says she strives for as well. "It's horrible to have people pointing an accusatory finger at you, whether you've done the crime or not. It's so important," she says, "to have someone standing next to you when that happens."
Photos by JEFF POWERS
Lisa Kauffman is fond of using quotes, from Byron to Proverbs, in defense of the accused.
Shane Erstad confers with Kauffman as Judge Douglas Harkin decides whether to revoke his probation.
Kauffman informs Erstad's family that he's been sent to jail.