The devil in the details: Avoiding disasters in legal writing

“Flounder, you can’t spend your whole life worrying about your mistakes! You fucked up. You trusted us. Hey, make the best of it.”—“Animal House,” Universal Pictures, 1978

“Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.”—Sir John Dalberg-Acton, 1861

I have always been confident in my writing skills, so I expected to breeze through my legal research and writing classes in law school. I was stunned when my professor graded my first assignment and told me that it was inadequate and must be re-written.

This rebuke reminded me of my first day of high school English when Mr. Jones asked us to write a standard five-paragraph essay. It was a pass/fail assignment, although to call it “pass/fail” implies that some of us students passed when in fact each one of us failed miserably!

Our essays, riddled as they were with comma splices and run-on sentences, were gosh-awful. We prattled on aimlessly about our summers and our interests (if “The A-Team” could be said to be an “interest”) while we enumerated the ways in which Van Halen was superior to Michael Jackson.

In ninth grade, I knew little about how to write as an adult, and I was bound to learn the hard way. Likewise, in law school, I knew nothing about how to write as a lawyer, and it was time to put away my ego and learn—again, the hard way.

I write a large number of legal documents now (more than one per day). Fortunately, once I corrected my lousy first draft in law school, I went on to win the high paper on every other assignment in the course and became a teaching assistant my second and third years, critiquing first-year law students in the same way that I had been criticized. Add this to my writing and editing background, and I’m in a position to notice when bad legal writing crosses my desk.

It crossed my desk today, in the form of a news story. Eric Dubelier and Kate Seikaly, defense lawyers for a Russian firm charged by special prosecutor Robert Mueller, were reprimanded by U.S. District Court Judge Dabney Friedrich. In a blistering lecture, the Trump-appointed judge told the two to “knock it off” because several of their recent filings were “unprofessional, inappropriate, and ineffective.”

This is not only mortifying for these lawyers, but it is malpractice. Because they have so exasperated the judge, they may have to step down from representing their client because the judge is biased against them. This is a catastrophic mistake.

The last straw had come last week, when Dubelier filed a Reply in Support of a Motion to Compel Discovery. (https://www.documentcloud.org/documents/5675655-Reply-in-Support.html .)

In the poorly-written and poorly-reasoned document, Dubelier takes a haughty tone and displays hostility to the Court and to opposing counsel. This is a terrible strategy for obvious reasons, but perhaps the most glaring transgressions are found on the first page, in which Dubelier quotes a 19^th Century Catholic historian as well as Otter from “Animal House.”

Indeed, counsel uses the f-word in a filing before a federal court: “The Special Counsel’s argument is reminiscent of Otter’s famous line, ‘Flounder, you can’t spend your whole life worrying about your mistakes! You f**ked up….’”

This example of bad legal writing is egregious and we’re unlikely to make these particular mistakes. We know better. Still, it’s an effective teaching tool, because it displays the most common mistakes that we make when writing legal documents.

Now that we’re all talking about this incident, let’s use it to identify some common errors as we vow to avoid them.

1) It’s not about you

You may have noticed that lawyers do not call themselves “Dr. _____” even though we have earned a doctoral degree (a law degree is formally known as “doctor of jurisprudence” or “juris doctor”).

While this is mostly due historical oddities from the English common law that I won’t bore you with now, the tradition endures because we are servants. We are officers of the court, bound to uphold its standards and integrity, but we are also representatives of our clients and their best interests.

In short, it’s not about you. Your writing, speech, and demeanor should not be intended to bring attention to you. Instead, its purpose should be to serve your client while upholding the standards of the profession.

In Dubelier’s document, it’s clear that he wants us to know that HE knows who Lord Acton is. (I didn’t know. I had to Google it. He’s the “absolute power corrupts absolutely” guy. What’s worse: Dubelier doesn’t really know, either. He clearly cribbed the quote from WikiQuote, where I found it and identified that Dubelier had copied it from that site, keeping the same incorrect citation.)

Once he proved his superior intellect, he then needed to show that he’s also hip and cool, so he quotes “Animal House.”

Neither quote is necessary, and neither quote helps us understand his argument. Rather than serve his client by making a clear argument, he attempts to show off but manages only to embarrass himself and defeat his filing’s purpose.

If you find yourself using quotes (whether they include foul language or not), you’re almost certainly forgetting that it’s not about you. Good legal writing is clear and does not need to be supported by citing to anything other than legal sources.

Don’t try to look smart. Be smart.

2) Don’t get fancy

Speaking of trying to look smart, lawyers are known for using flowery language and “legalese” to make their writing sound more official and more impressive.

This is a mistake, and it’s closely related to my first point.

When I was a teaching assistant, I warned the first-year students “This is no time to get fancy!” so often that they began teasing me about it, calling it my catch phrase.

It’s good advice, though. Busy judges and weary clerks need clear, concise language. If you fail to give them that, you are not serving your client.

Good writers and smart people do not need to use big words and arcane terms to prove their worth to others. Instead, use clear language that could be understood by a sixth grader.

If you cannot effectively explain your own argument to other people, you do not understand your own argument.

The best/worst example I’ve seen: A lawyer was arguing that a man no longer had a valid claim to a piece of property because the man had died. When he died, all rights to this property were severed, and his estate could not claim it either for complicated reasons I won’t go into here. The lawyer kept reaching for novel ways to say this, in one case writing that “the claimant continues to maintain an elusive position.” In other words, he’s dead. Just say that.

Don’t get fancy. It doesn’t work. Instead, be elegant by being clear.

3) Craft, don’t draft

When we say we “draft” a legal document, it sounds like we’re experimenting and submitting something for review that we hope to perfect later.

In fact, the document we file should be flawless. We’re signaling to the court that we are diligent professionals who care about our case and who respect the court’s standards.

The most common mistakes occur in these key areas:

a. Cut and paste makes waste

Cut and paste is a powerful tool, and we use on nearly every document.

With great power comes great responsibility, however.

For example, it makes sense to use an existing document for a template. It doesn’t make sense to forget to change the names of the parties or the case number in the caption block, however.

Similarly, if you’re making an argument that is nearly identical to an argument you’ve made recently in another case, you’ll re-use your perfectly crafted statements of rules of cases with their painstakingly verified citations, complete with section symbols and double- and triple-checked romanetted subsections and sub-subsections and sub-sub-subsections. You WON’T re-use the part where you apply the facts to the law, however, leaving your reader to wonder who these new people are and why they’re suddenly doing things that weren’t mentioned in the Statement of Facts.

If you include old information in a new document, you’ll confuse the reader. The reader WILL be clear on one point, however: You used cut and paste, and you failed to read your own document through a single time. You’ve damaged your argument AND your credibility. Worse, you may have committed malpractice by violating the confidentiality of the parties.

Commit to reading and re-reading your documents. Sometimes, I read mine out loud to myself so that I can hear the words as if I were hearing them for the first time. This shakes me out of the complacency that comes with familiarity. Further, I’m often surprised to find that a lawyer with a full staff of paralegals doesn’t ask a paralegal to proof the work product and make suggestions.

b. Violations of the law

We’ve been warned since the first day of law school to Shephardize, so hopefully we’ve taken that advice to heart.

We err when we’re typing our citations, however, and this is nearly as bad as failing to Shephardize. It renders our citations worthless (and makes us look sloppy).

The various numbers, letters, symbols, sub-sections and other minutiae can be hard to get right consistently, but of course they must be perfect every time.

My trick for this is to make a hyperlink elsewhere out of the citation and click on it. Does my link take me to the correct place? If not, I know I’ve cited incorrectly.

c. Lean on me

As I mentioned, when we have worked on a document for days or weeks, we become blind to the most obvious errors. We’re too close, and we can no longer see the larger document (the forest) because we’ve been focusing on the various parts of it (so many trees!).

When this happens, it’s time to ask for help.

I’m still working on this. I hate to ask for help, in part because I don’t want to look stupid. This is a common problem with lawyers, and it leads to the worst mistakes.

Had Dubelier asked a colleague to review his Response, the colleague would have said, “You don’t want to use these quotes. It’s unprofessional. Plus, you sound hostile here, and you know you don’t want to do that. You’re tired and frustrated, and it shows. Here’s how I would write it….”

I am very fortunate to have several colleagues who have excellent skill and judgment. When I’m in doubt or when the stakes are high, I ask at least one of them to review my draft, and I do the same for them.

Ask for help and accept help. Be honest and direct when YOU help.

Ego slip

You may have noticed that all of these errors are the result of our egos.

We want to look good—or at least avoid looking bad.

If we remember that our sworn duty is to provide competent representation to our client and to uphold the standards of our profession, we’re left with very little room to think about ourselves.

That’s when we’re at our best.

Rending Wall: What Trump must do to acquire property to build the wall

No person shall be… deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.--U.S. Const. Amend. V

Something there is that doesn’t love a wall,

That sends the frozen-ground-swell under it,

And spills the upper boulders in the sun;

And makes gaps even two can pass abreast.

--Robert Frost, “Mending Wall”

The ownership of private property is the embodiment of the American Dream. It’s the quintessential expression of liberty: staking a claim on a piece of ground, a claim that is consecrated with the blood of patriots.

Property rights are so ingrained in popular culture that movies and TV shows depict landowners as, say, the dug-in suburban geezer hollering “get off my lawn” (your dad!) or the rural landowner racking a shotgun and growling “git off my LAND” (my dad).

Meanwhile, even the most ardent libertarians recognize that not all property can be privately owned. Everyone draws the line in a different place, but most people agree that we need public land for military bases, government buildings, roadways, airports, and green space.

The conflict between individual property rights and falls into an area of constitutional law known as “takings,” which of course is in the news due to President Trump’s promised wall along the southern U.S. border.

Without discussing whether the wall is necessary or advisable or moral or even possible, I’ll discuss the constitutional and policy origins of takings while explaining the legal challenges involved in building Trump’s wall.

First, I’ll tackle the acquisition of private property, and then I’ll talk about the challenges posed by treaties and state and tribal rights.

Your home is your castle

Early American colonists were violated repeatedly by the King’s intrusion into their privacy and property rights. Once the Revolutionary War was won, the drafters of the Fourth and Fifth Amendments responded to this abuse by enumerating these instances of governmental attacks on personal liberty—and specifically prohibiting the new government from committing them.

The Fourth Amendment was written to prevent the abuses that colonists had suffered under the Crown’s “writs of assistance,” a sort of general search warrant which allowed the government to search a subject’s home and papers without naming the evidence that was being sought.

The Fifth Amendment prohibits the government from infringing on a person’s life, liberty, and property without due process of law (namely, adequate notice and a fair hearing) that was largely absent in colonial-era criminal law. Criminal defendants are guaranteed the true-bill analysis of a grand jury and are protected from double jeopardy and compelled self-incrimination. The Fifth Amendment therefore protects personal liberty.

James Madison included the takings clause here, because (as he noted in his writings), he felt that individual property rights were a sacred necessity for a free people and should not be violated without good cause and without a fair process and compensation.

Strange bedfellows

The sanctity of property rights is one of those rare issues on which conservatives and liberals agree.

Free-market conservatives object to government overreach in general and to the involuntary transfer of wealth from private hands to the public in particular. While liberals are not fans of this either, they tend to join conservatives most vocally where civil liberties are violated—and emphasize that minorities and the poor are disproportionately affected by governmental takings.

Oddly, Trump supporters are forced to split with conservative thinking here. We are now hearing people who describe themselves as conservatives argue that landowners should be forced to surrender their private property for the public good—while liberals respond with arguments that focused on personal liberty and free market values.

Takings

The Fifth Amendment’s “takings clause” prohibits the government from taking private property for public use. That sounds like a clear directive, but there’s plenty of room for debate over what it means to “take” private property—and how much compensation is “just.” Naturally, these matters have come before the courts.

Much of the takings jurisprudence answers questions regarding whether various government regulations such as zoning laws constitute a taking. Another line of cases deals with whether certain nearby activities (such as noise from an airport) are a taking.

With Trump’s border wall, however, we’re not talking about those philosophical questions. The seizure of property for a physical wall (no matter what type or size) is an ACTUAL taking of private property—literally taking private property under a theory known as eminent domain.

Eminent domain

When the federal government seeks to build a public project such as an interstate highway or railroad, it must first acquire the rights to the property through which the roadway passes. It’s the same with Trump’s wall, which passes through private property in 23 counties in four states.

  

The government acquires private property by acquiring title to the property through condemnation and then paying the landowner what is supposed to be roughly the fair market value of the property. (As you can imagine, “fair market value” is a frequently-litigated subject.) It’s more or less a forced sale.

The property through which Trump seeks to build the wall is a mixture of public lands (including state and federal land), private property, and tribal lands. First, I’ll tackle the problem of acquiring privately held land through eminent domain. The landmark case here is a favorite of the large real estate developer—including Donald Trump.

Kelo and me

When we think of the government’s taking property for public use, we think of projects such as airports or highways that will be owned by the government and are clearly, well, used by the public. Kelo v. City of New London (545 U.S. 469) is a controversial 2005 case that clarified that the government could take private property from one owner to another private owner in furtherance of economic development.

Clarence Thomas wrote a blistering originalist dissent, stating that, while citizens were still safe from government overreach in their homes, the homes themselves were no longer safe. Liberals such as Ralph Nader and Bernie Sanders also denounced the ruling, in part out of concern that minorities and the poor are often targeted in these schemes and wealthy, well-connected commercial real estate developers are favored.

One such developer is Trump himself, who has a history of lobbying local government development authorities to exercise eminent domain so that he could develop his projects. A low point occurred in the mid-1990s, when Trump tried to use eminent domain to force several Atlantic City residents, including an elderly widow, to sell their homes to make way for his large casino development’s limousine parking lot. Trump’s bid, one quarter of what the residents had been offered a decade earlier, ultimately failed, but not before years of litigation and bad blood.

In 2005, when the Kelo decision was handed down, conservatives and liberals alike were outraged. Not Trump, though: “I happen to agree with it 100 percent.”

Constitutional scholars don’t share his enthusiasm, however. While Trump appears to be confident that the current Supreme Court will apply Kelo broadly, his confidence is misplaced. Conservative jurists have been champions of property rights and strong critics of the holding in Kelo. The name of one such jurist will be familiar to Trump: Neal Gorsuch, who openly and repeatedly criticized Kelo and admired Thomas’ dissent.

The costs of the court

Estimates for building the wall have ranged from as low as $15 billion to $1 trillion, but this includes mostly the construction costs, including materials and labor. It does not take into account the costs of litigation or the “just compensation” that must be paid to landowners, even if Trump prevails in his proposed eminent domain actions.

These costs are considerable. The federal government has shown in recent years that it is unwilling to pay true “just compensation.” Recent condemnation letters offer “fair market value” of figures such as $2,900 for 1.2 acres near Los Ebanos, Texas; $1,000 to a rancher near Los Indios, Texas, and $700 for 1.6 acres of riverfront property in Roma, Texas.

This sounds like a cost saving strategy, as unethical as it may be. The opposite is true, however, because landowners who are offered less than fair market value tend to sue, and these cases can drag on for years. In 2008, the Bush Administration attempted to lowball landowner Eloisa Tamez when it tried to take her land in Cameron County, Texas. Tamez sued in federal court, and after seven years of litigation, prevailed. Among other concessions, the federal government was forced to pay her $56,000 for a quarter-acre of land.

Prior efforts to build border walls have been riddled with errors and abuse—and litigation. A 2017 joint study by ProPublica and the Texas Tribune found that Homeland Security circumvented the required appraisal process and intentionally lowballed homeowners. This resulted in a backlash, with wealthy landowners suing and negotiating settlements triple that of Homeland Security’s initial offers. Meanwhile, the Department of Justice failed to research property lines and underpaid some homeowners while overpaying others, resulting in more lawsuits. Further, Homeland Security paid people for property they did not own, thereby paying for the same tract twice. A decade later, dozens of lawsuits are still going, and this was for a border wall project many times small than Trump’s proposed wall.

“The military version of eminent domain”

Trump recently said that he could use “the military version of eminent domain” to seize lands to build the wall.

There is no such thing as “military eminent domain.”

Trump said this in response to a question about whether the process of eminent domain would cause long delays. Presumably, then, he means that the federal government can seize private property when it is necessary for the military to protect national security. 10 U.S.C. § 2663 (1956).

This law still requires due process, however, and is written for use in a national emergency or similar exigencies. Any legal argument that attempts to use this for a border wall would therefore fail.

Meet the neighbors

The costs (both monetary and political) and legal challenges of acquiring all of this private property make building the wall seem impossible. We’re only partway there, however. In addition to privately held property, land owned by states and tribal government and affected by various treaties must be acquired, too.

To understand the U.S./Mexico border, it’s important to define it. In the video footage that we’re seeing, the land appears to be vacant, barren desert. In reality, the geography of the border lands is as varied as the types of landowner.

The border spans nearly 2,000 miles, beginning 12 miles out into the Gulf of Mexico, then running west to the mouth of the Rio Grande. It follows the center of that river’s deepest channel for 1,260 miles to a point upstream of El Paso. It then goes west overland for 534 miles to the Colorado River. It follows the center of the Colorado River for 24 miles to the Continental Divide (its highest elevation). It then goes overland 141 miles to the Pacific Ocean, into which it extends 18 miles.

Along the way, the border crosses parts of two oceans, beaches, deserts, mountain ranges, urban and suburban areas, ranch and farmland, and river valleys. The southern borders of California, Arizona, Texas, and part of New Mexico line the border, as do the ancestral lands of several American Indian tribes.

The tribal lands most problematic to Trump’s wall belong to the Tohono O’odham.

Tribal lands

The Tohono O’odham Nation’s reservation is the size of Connecticut and straddles the U.S. border for 62 miles in southern Arizona and nearly 4,500 square miles (the size of Connecticut and second only to the Navajo) and straddles the border, encompassing land in southern Arizona and northern Sonora, Mexico, with 2,000 of its 34,000 members living on the Mexican side of the border. A wall would cross burial grounds, prevent ranching farm members to their wells, and prevent the tribe from making its annual religious pilgrimage to a shrine on the Mexican side. For these reasons and others, the tribe strongly opposes Trump’s wall.

Its claim is strong. The U.S. government formed the reservation with three separate executive orders (in 1874, 1882, and 1916). Various other treaties protect tribal property rights, as well. It would take an Act of Congress to build the wall through this land. While the Secure Fence Act of 2006 (Pub.L. 109-367) replaced some fencing with sturdier steel posts, the barriers—where they exist—have gates that allow tribe members and their vehicles and livestock to pass. Trump’s promised impermeable wall would not.

The tribe, which has spent millions of dollars from its own treasury to secure the border and to guard against drug smuggling and human trafficking, is ready to spend money on a protracted legal fight. And the Tohono would make a sympathetic plaintiff, to say the least.

Treaties

And speaking of treaties and sharing the border, the U.S. government has entered into several treaties that will hinder Trump’s project.

The Mexican-American War ended officially with the signing of the 1848 Treaty of Guadalupe Hidalgo. Among other things, it made the Rio Grande the U.S. Mexico border for 1,260 miles. The U.S. cannot of course block Mexico’s access to the river, so it must build the wall on the U.S. side. The wall cannot be built in a flood plain, however, so it must be built some distance from the river. This would cut off Texas’s access to this important waterway, including the access of landowners to some of their own land. In some cases already, residents live on the south side of existing barriers, where they access the rest of the United States through gates in the fences (that illegal border crossers also use). These landowners have already secured legal representation and vow to fight further takings.

Indeed, several treaties between the U.S. and Mexico govern access and use of the Rio Grande, Colorado, and Tijuana rivers and their tributaries. An impenetrable wall would not only limit access but would hinder the control of floods, erosion, and agricultural runoff. Even the most recent “steel slats barrier” would allow debris to create dams along the barrier, which would exacerbate flooding and erosion.

I found several such treaties that are still in full effect, some dating back to the 1800s. A 1970 treaty requires both the U.S. and Mexico to agree on any structure that would affect the flow of the Rio Grande or its floodwaters. A 1944 treaty imposes a similar requirement for not only the Rio Grande but the Tijuana and Colorado Rivers and their tributaries, particularly where the flow and disposal of wastewater is concerned.

The U.S. has already violated these treaties according to the Mexican government, and Trump has alienated them further with his various insults and demands that Mexico pay for the wall, so cooperation from Mexico is unlikely.

State lands

When we think of public lands in the West, we typically think of federally owned lands—and it’s true that the federal government is the single largest landowner along the border. The four states along the border, however, own considerable lands there, too. In some cases, they are not willing to cede it to the federal government for wall construction.

For example, New Mexico’s newly elected state land office commissioner cancelled the state’s sale of land to the federal government for Trump’s wall and has vowed to fight this and other similar transactions.

It’s important to remember here that conservatives are proponents of federalism and states’ rights. We can expect a lengthy lawsuit in the federal courts between New Mexico and the federal government, and Trump has populated the Supreme Court with originalists while his supporters cheered.

Hitting the wall

Immigration is a complex issue, particularly for a wealthy nation that shares a vast border with a poor nation with even poorer nations to the south of it.

No matter what you believe about the wall, however, I hope we can all agree that it gains us nothing to attempt a solution if we lose our soul as a nation. A republic founded on liberty and the sanctity of individual and property rights that turns its back on its most important principles becomes a nation not worth defending.

The Rio Grande that forms much of our southern border has turbulent beginnings and meanders and loses its way before it finds itself and courses in a sure and clear path to eternity. So should the vast republic to the north.

A ghoul for a client: Ted Bundy defends himself

Ted Bundy committed his crimes primarily in the 1970s, but even today, most people have heard of him and have strong feelings about his case. The horrific nature of his actions have given him notoriety even decades after his death, and this infamy has been sustained by the many books, documentaries, true crime websites, and news reports about him. Like it or not, the Ted Bundy case is an enduring cultural touchstone.

It’s easy to find detailed accounts of Bundy’s crimes online and in print, but it’s difficult to find accurate summaries of the resulting legal proceedings. Here, I will discuss a subject of little interest to the general public but one of great curiosity to lawyers and law students: If a law student is accused of a capital crime, what happens when he attempts to defend himself?

To understand Bundy’s legal case, we need not understand Bundy. Indeed, no matter how much we examine his acts, they defy understanding. As unpleasant as it is, if we are to understand the legal proceedings, we must examine the underlying circumstances that brought him before the court.

Let us go and make our visit.

The client

Theodore Robert Cowell was born in Vermont on November 24, 1946, to an unwed mother, Louise Cowell, who then moved with her infant son into the home of her parents in Philadelphia. For the first few years of his life, Ted was told that his grandparents were his parents and that his mother was his older sister.

When Ted was a toddler, Louise moved with Ted to Tacoma, Washington, to live with cousins and in 1951, married Johnny Bundy, who adopted Ted, giving him his familiar last name. Ted slowly began to realize that Louise was his mother and that his own biological father was long gone.

Growing concerns

While many of his close friends, family members, and co-workers were shocked when Ted was arrested, it’s also true that he displayed many of the hallmarks of a budding sex criminal as he grew up.

For example, he was fixated on pornography and lurid “detective” magazines and often roamed his neighborhood as a preteen and teen to peep into his neighbor’s windows to watch the women undress. Meanwhile, he showed the telltale lack of empathy and remorse common to the antisocial personality disorder type, shoplifting, stealing ski equipment and forging ski lift tickets, even being arrested for auto theft and burglary as a juvenile. Further, he had trouble forming close relationships with his family and school friends due to his lack of empathy and befuddlement at social interactions.

While some of these problems appear in teenagers who later grow up to be law-abiding citizens, they are troubling in hindsight in this case, as it is clear that he was growing into the serial killer that he would become.

The crimes

While it’s impossible to say, authorities believe that Bundy began his string of serial murders in or around 1969. The first murders that can be definitively attributed to him occurred in early 1974 in Washington and Oregon. Before Bundy was captured for good in Florida in 1978, he had murdered more than 30 young women in Washington, Oregon, Idaho, California, Utah, Colorado, and Florida.

The actual number of victims is higher, but it’s impossible to say by how much. Detectives in jurisdictions where Bundy lived or visited speculate that he may have been responsible for unsolved rapes and rape/murders in those towns, as well.

What is certain, however, is that he had an overwhelming compulsion to stalk, beat, rape, torture, kill, and then sexually assault the corpses of young, attractive women. He devastated the families, friends, and communities of these young women and girls, some as young as 12, who were left with the knowledge that their loved ones spent their last hours (and in some cases, days) in pain and terror. In most cases, the families were unable to recover and bury the remains.

Bundy never expressed, and probably never felt, remorse. On the contrary, he denied his crimes until his execution was drawing near, when he began to feed bits of information to investigators in exchange for a delay in his execution, a macabre “bones for time” scheme.

Hard to hold

Because the crimes occurred before the widespread use of computer technology in law enforcement, Bundy had killed at least 20 women before investigators in the various jurisdictions realized that they were searching for the same man. Further, the concept of a serial killer was a relatively novel one. Instead, many investigators suspected a cult, due in part to the recent Charles Manson murders.

Once investigators understood that this was the work of a single man, they still faced difficulties. The unknown killer left few eyewitnesses and little physical evidence, and DNA science was not yet a part of crime scene investigations. The police echoed the same sentiment: It was as if the earth had opened up and swallowed the victims, leaving no trace.

To further complicate matters, when we think of a serial killer, we expect him to look and act like a monster at all times. Bundy’s outward appearance was normal, and he attended college, served as an assistant to high-ranking GOP officials in Washington state, and even volunteered at a suicide hotline.

In the fall of 1973, Bundy began his first semester of law school at the University of Puget Sound. He had been accepted both to UPS and to the University of Utah’s law school despite lackluster undergrad grades and a mediocre LSAT score. He was admitted primarily on the strength of his letters of recommendation from Washington Governor Daniel Evans, Washington GOP chair Ross Davis, and several of his undergrad professors.

Clearly, it was a different time. Today’s law students know that stellar undergrad performance, high LSAT scores, and strong recommendations are expected and are merely part of a successful admissions package.

Clean-cut student

A key reason that Bundy’s story is still on our minds today is the dichotomy: It’s hard to believe that a successful law student by day can be a diabolical psychosexual killer by night.

This disconnect has been exaggerated by journalists and Bundy biographers, however. While it’s true that Bundy appeared to be a model citizen who fooled prominent politicians and law school admissions committees for a time, he was not the “brilliant law student” that is described to us in almost every report.

Instead, Bundy was a heavy drinker who had difficulty concentrating due in part to the dark compulsion that was overtaking him during this time. In later years, he recalled his law school classes as a blur. He couldn’t comprehend even the simplest intellectual concepts of his first-semester classes, concepts that his fellow students seemed to grasp with ease.

This imposter syndrome-style fear sounds familiar to any law student, but to Bundy, it was a reality. He wasn’t smart enough and wasn’t a hard enough worker to compete, and by the spring of his first year, he had stopped attending classes entirely.

Despite his failure at UPS law, he was able to convince the University of Utah to allow him to transfer there (again, it was a different time!), and he began attending classes in Salt Lake City in the autumn of 1974, with the same academic results—and the same rash of missing young women in the area.

While Bundy had finally attracted the attention of law enforcement in several jurisdictions, it was here in Utah that he was arrested for the first time as an adult. Posing as a plain-clothes police officer, he lured a naïve Carol DaRonch to his car at the Fashion Place Mall in Murray, Utah. As he drove away with her, he attempted to knock her unconscious with a crowbar while he struggled to handcuff her but fumbled and managed only to get both cuffs around the same wrist. This brave young woman fought for her life and managed to jump out of the car, where Bundy chased her. She fought him off and ran into the path of an oncoming car and jumped in. The startled older couple in the car drove her to the police station, where she gave a detailed report. Bundy had been arrested at an unrelated traffic stop, and DaRonch identified him, which led to his being charged with aggravated kidnapping. It was DaRonch’s testimony at trial that led to his first conviction.

While Bundy lost this case, it was a close one. Eyewitness identifications are easy to impeach, and there was little additional evidence. Bundy was represented by two experienced lawyers, John O’Connell and Bruce Lubeck, who wisely requested a bench trial rather than a jury trial due to the sympathetic nature of the victim. Despite their competent representation and the strength of their case, the judge found Bundy guilty and sentenced him to one to 15 years in prison. The judge himself admitted that this was an agonizingly close decision, and local prosecutors to this day joke that this was the only case they knew of where a guilty man was framed.

Once Bundy began serving time in the Utah State Prison, Colorado charged him with the murder of Caryn Campbell, a nurse who was abducted from the Wildwood Inn in Snowmass and found dead in a nearby snowbank, and he was extradited to stand trial there. As bleak as this sounds, Bundy had a fair chance of prevailing in the Campbell murder trial. Colorado’s case was not much stronger than the Utah DaRonch case. If Bundy prevailed in Colorado, he could win on appeal in the shaky DaRonch case in Utah, and then, possibly, be free.

Bundy was out of money, however, and the failed law student declined a public defender and petitioned to represent himself in a capital murder case. The judge agreed, and Bundy was allowed time in the courthouse’s law library without shackles and handcuffs.

He escaped, of course, was captured, and escaped again from jail while he awaited trial and after the trial began. He made his way to Florida by plane and stolen car and bus, where he would kill again and again, and finally be arrested, convicted, and ultimately executed.

Had Bundy not insisted on managing his own defense, he would likely still be alive today, a 74-year-old man, languishing in the Raiford Florida State Prison on Route 16 in swampy central Florida. He made another choice, however, and that choice made all the difference.

Competent representation

The Sixth Amendment guarantees the defendant in a criminal action the right to a lawyer, even if he or she cannot pay. Further, the Sixth Amendment has been interpreted to allow criminal defendants to represent themselves if they so desire and under certain circumstances. Faretta v. California, 422 U.S. 806 (1975)

Despite Bundy’s occasional high-profile jobs and lifelong habit of stealing cash, electronics, and luxury goods, he had no assets and could have required Colorado to appoint a public defender in the Caryn Campbell trial. (Presumably, Bundy’s parents paid for his Utah DaRonch lawyers.) Bundy decided to represent himself. He was perhaps displaying his need to control as well as his belief in his superior intelligence, a trait that would vex his future court-appointed lawyers in Florida.

In all of his trials, Bundy simply would not listen to counsel, which is of course familiar to any lawyer. This tendency is particularly acute in those who are afflicted with Cluster B personality disorders, such as Narcissistic Personality Disorder and Antisocial Personality Disorder. These clients are so convinced of their superiority and infallibility that believe that the jury will be on their side if they are given the chance to tell their story. They are truly stunned to find otherwise, and are often furious and mystified when the jury finds them guilty, when a motion is denied, and even when the victim’s family is angry at them.

This client’s lawyer will be quickly driven to the point of exasperation, as many of Bundy’s were, because they will insist that the case be managed in his ways against all reason, and the lawyers find themselves presenting indefensible motions and furthering ridiculous arguments. Meanwhile, the client is verbally abusing them and threatening bar complaints, so it’s easy to see why these relationships are untenable and result in a request for removal, usually by the lawyers.

It’s tempting, then, for a judge to grant the defendant’s request to represent himself, even though a non-lawyer lacks the experience and knowledge to competently represent himself. Still, it’s his choice, right?

Not so fast.

It’s Your Funeral

We don’t just want a trial; we want a fair, effective trial. Preferably, the trial will be conducted with no reversible errors.

In a felony trial, particularly one in which a capital crime is charged, there are so many moving parts and therefore so many opportunities to violate the defendant’s constitutional rights. Did the jury see the defendant in shackles? Was an eyewitness contaminated by media coverage? Did the judge give perfect jury instructions? And of course: Did the defendant receive his constitutionally protected right to competent representation?

For this reason, the judge may deny the defendant his right to represent himself if the defendant cannot undertake this knowingly and intelligently. Sometimes, a judge will appoint a “standby counsel” to advise the defendant who insists on representing himself. (This appointment is every bit as nightmarish as it sounds. Consider this: You are required to help the defendant, but you are not running the case. It’s the worst of both worlds. It forces the lawyer to be a self-aware, intelligent Igor, the handmaiden to a madman. Any of Bundy’s lawyers can attest to this.)

It’s a tough decision for the judge, who must navigate a narrow channel among several cases.

First, we must establish that the defendant is competent to stand trial—that he has a “rational and factual” understanding of the proceedings and that he is able to assist in his own defense. Dusky v. United States, 362 U.S. 402 (1960) and Drope v. Missouri, 420 U.S. 162 (1975).

Second, just because a defendant is competent to stand trial does not mean he is competent to defend himself, because it is much more complicated to manage an entire defense than to be able to understand proceedings. Indiana v. Edwards, 554 U.S. 164 (2008). (This case came after Bundy’s trials, of course, but it is important clarification now.)

Third, while a defendant cannot be forced to accept a lawyer if he does not want one, he must show the judge that he understands the “dangers and disadvantages” of self-representation. Faretta v. California, 422 U.S. 806 (1975)

Practically, this means that the judge will ask the defendant a series of pointed questions such as: What are you charged with? What does that mean? If you lose, what will happen to you? Those are the easy questions. It’s almost certain that the defendant will not know when and why to make certain motions, how to introduce and authenticate evidence, or how to direct- and cross-examine witnesses, to name a few problems. The judge is not required to advise the defendant but can do so as long as the judge does not show bias and isn’t seen as helping the defense too much. It’s a fine line.

Self-representation

We’ll never know how Bundy would have fared while he represented himself in the Campbell case, but he was successful in several pretrial motions prior to his escape. In particular, he prevailed on motions to keep damaging evidence out and was well-spoken and presented himself professionally to the court when he appeared.

Before his trial in Colorado could get fully underway, however, Bundy escaped to Florida, where he stole several identities, committed a rash of thefts, and killed again. In Tallahassee, he bludgeoned, sexually assaulted, strangled, and otherwise brutalized several sleeping sisters at the Chi Omega sorority houses, killing two. In Lake City, he kidnapped 12-year-old Kimberly Leach from her school, raped and sodomized her and slashed her throat (likely WHILE he was raping her) and dumped her destroyed remains in an abandoned hog farrowing shed.

A crazed, disintegrating, fleeing Bundy was arrested in the panhandle and was charged with multiple counts of murder and attempted murder. The heinous nature of his crimes—with multiple aggravating factors—put the death penalty squarely on the table. Due to the intense pretrial publicity, the venue for the Chi Omega trial was changed to Miami, where the worldwide media and Bundy groupies (seriously) lent the proceedings a circus-like atmosphere similar to that of the Charles Manson trial. Afterward, the Leach trial would be held in Orlando.

In Miami, Bundy found himself before veteran judge Edward D. Cowart, who masterfully navigated this difficult and complex trial to the bitter end. Bundy proved a nearly unmanageable defendant, but Judge Cowart was up for it, employing his rare combination of folksy everyman, stern disciplinarian, and seasoned jurist.

Cowart was well aware that the defense had to be managed properly, and so took the unusual step of appointing five defense lawyers. Bundy exhausted them all. Even with the assistance of these five meticulous defenders, Bundy insisted on taking first chair in his defense. His lawyers agree that he sabotaged his own trial out of childish spite and downright delusional thinking, and that he seemed to care only that he was in control, even though he was fighting quite literally for his life.

Bundy was in the driver’s seat, and here we can see an excellent example of the dire consequences when a defendant ignores his counsel’s advice. The State had offered a common plea deal: If Bundy pleaded guilty, he would avoid the death penalty. Prosecutors knew that their evidence wasn’t strong. Remember that DNA evidence wasn’t available yet, and so the State’s case rested primarily on some hair and fiber evidence as well as the unreliable eyewitness testimony of a Chi Omega sister who had briefly glimpsed Bundy’s profile in a dark foyer.

Still, this imperfect evidence was compelling, and it was certain that if Bundy were convicted, he would go to the electric chair. Still, Bundy could not bring himself to plead guilty. He could not relinquish control and could not shatter his fragile self-image. While his lawyers begged him to reconsider, he declined the deal, was found guilty, and was sentenced to death. He got the same result in Orlando, again making poor tactical decisions and again insisting on managing his own defense.

The aftermath

After his July 24, 1979, conviction in the Leach case, Bundy remained on Death Row at Raiford until he exhausted his appeals. He was executed in Florida’s electric chair on the morning of January 24, 1989. At his request, his body was cremated and the ashes were scattered somewhere in Washington’s Cascade Mountains—despite the vigorous objections of some of his victims’ families, who did not want him to share a final resting place with their loved ones who he had dumped there.

At his Orlando trial, Bundy took advantage of an obscure Florida law that allowed a marriage to be solemnized when a man and a woman declared their intent to be married while in a courtroom before a judge. Bundy thereby married his longtime penpal and former coworker Carole Ann Boone. Boone later bribed prison guards and consummated the marriage, giving birth to Bundy’s daughter in 1982.

Bundy had married, had a child, reached middle age, prepared for his death, and chose his final resting place, an opportunity that he denied to at least 35 innocent young women, women who fought as hard as they could to defend themselves.