Lane v. U.S.

Whether defending death row inmates or Balloon Boy’s dad, David Lane strives to keep government abuse in check

Published in 2010 Colorado Super Lawyers — April 2010

Juan Quintero was an illegal immigrant charged with murdering a beloved cop in Houston—a city with 130 executions since 1976. That’s a body count higher than in any city in the U.S., and higher than any state in the U.S. except for Texas. Colorado trial lawyer and death penalty expert David Lane was brought in by a Houston attorney to help with the defense.
 
Quintero had been pulled over for a traffic violation by Officer Rodney Johnson, a hero who had recently rushed into a burning building to save the lives of several children. Quintero had a 9 mm concealed in his waistband when Johnson handcuffed him and put him in the back of the squad car, and shot Johnson five times in the back of the head.
 
Johnson had managed to radio for help before he died, and news helicopters hovered overhead while Quintero was apprehended from the squad car, along with Johnson’s body.
 
For two months in 2008, Lane lived in Houston and spent his days trying to convince a jury not to take Quintero’s life.
 
“This was such a public event in Houston,” Lane says. “Literally, tens of thousands lined Office Johnson’s funeral route. This turned public sentiment in Houston so deeply against Hispanics, not just illegal immigrants, but legal immigrants and U.S. citizens.”
 
Lane has never turned down a criminal case because the client was “too bad” or the facts were too hideous, and says that no criminal defense attorney worthy of that title ever would.
 
“The nature of being a defense attorney is you are required to try to understand everything and some of the things our clients do are almost beyond human understanding,” Lane says. “In every death penalty case, you’re asking a jury to forgive your client and the only way they can forgive your client is to understand how your client is heading for death row after starting out as a brand-new innocent little baby. And your job is to give explanations for people so that they will forgive and allow him to live. It changes the way you view the world. You begin to understand that your humanity cannot be defined by the worst thing you have ever done in your life, although society really tries to.”

The jury convicted Quintero—but they rendered a life sentence instead of the death penalty.
 
“These death penalty cases always have these absolutely worst facts imaginable as a general rule, so they’re all challenging, but going down to Houston, convincing a Houston jury to give a hero cop killer a life sentence—that’s a challenge,” he says.

Listening to rock ’n’ roll in his modest, cluttered, downtown Denver office, Lane is laid-back and self-deprecating about the fact that most casual observers of the legal scene have heard of him not for his work on 25 death penalty cases like Quintero’s but first as the provocateur of the media circus that was Ward Churchill’s First Amendment trial against the University of Colorado, and more recently as the lawyer representing Richard Heene, the father of “Balloon Boy.”

To those who would call him a “media whore”—and some critics have—he can point to more than 170 under-the-media-radar cases he’s brought to trial. “If the media is interested in the cases I do, oh well, that’s the media’s thing,” he says.

Lane’s willingness to represent the worst of the worst in criminal cases and to stomp out government abuses in civil cases was shaped by his family history. His uncle escaped Nazi Germany as a young boy, and Lane grew up listening to family members tell him, “Don’t for one minute think that this couldn’t happen in this country.”

“Go talk to any Native American, go talk to African Americans, they’ll tell you it has happened in this country,” he says. “I believe that the Constitution is one of the greatest documents ever produced in the history of humanity, but it is only as strong as those charged with enforcing it. And if we have government officials who are looking to circumvent it every chance they get, then the Constitution is meaningless. The fact that our system allows me to do the job I do speaks volumes for America. You gotta love a country that allows you to function that way. And I do. But my job is to control the government.”

A product of Denver, Lane graduated from George Washington High School in 1972 and the University of Colorado at Boulder in 1977. He first thought about law school while talking over beers with his cousin’s boyfriend who was a law student. It sounded like fun and—being an adrift 22-year-old—he thought why not postpone the inevitable for another three years at the University of California, Berkeley.

“I started out thinking I wanted to be an environmental lawyer and then I realized you could grow a redwood from sapling to full maturity in less time than it takes to litigate an environmental case,” he says. With no real idea what he wanted to do, he took a different job every semester until he finally landed at the Oakland public defenders’ office, and realized he was home. “When I graduated law school, I thought, ‘I’ve never lived east of Colorado.’ Willie Sutton robs banks because that’s where the money is. I figured if I’m going to be a public defender I’m going to go where the crime is.”

So he went to New York City. It’s where he learned that his job was to be the one person in the courtroom who understood why his clients did the things they did, and convey that to a judge or prosecutor. “Being a public defender in a major urban area with problems of poverty and race all around you, defining the entire environment you’re working in, it takes some time to process all that and understand it,” he says. “Being a public defender gives you an opportunity to gain insights into humanity that you otherwise would never have the opportunity to get. It’s a life-changing experience. The public defenders that exist in the world are in my opinion the greatest lawyers in America.”

One case in particular was life-changing for him. His client was facing a life sentence, charged with a large-quantity drug sale. “I worked that case and finally because of the hard work that I had done, it got dismissed and my client was out of jail, eternally grateful, thanking me profusely.” Three weeks later, Lane was working night court at 1 in the morning when he saw that same client brought in, charged on another large drug sale that was going to land him a life sentence. Lane was devastated. “We’d taken a break and a senior lawyer took me aside and I explained why I was feeling just so absolutely devastated,” Lane recalls. “He said, ‘I don’t know what you think your role in his life is other than to maybe stop the hammer from falling right now. Do you think that these people somehow owe you something? Do you think he’s going to apply to Harvard Law School next week or do you think he’s going to go back to the ghetto in Brooklyn and do what he’s always done, what he knows how to do, and that’s sell drugs? Why are you disappointed? It’s his life. You don’t have some magical power where you’re going to transform somebody’s life simply because you’ve stopped the hammer from falling on them this time.’”

In 1984, New York didn’t have the death penalty, but the public defender’s office knew it was coming, so they allowed Lane to take a death row case in Georgia to gain some experience. He won his appeal before the Georgia Supreme Court. “Nobody really likes death penalty cases,” he says. At the same time, he adds, it was a break from the “dead bang loser” cases he encountered in criminal defense, in which the facts are such that he knows there’s no chance of getting his client found not guilty. “Arguing to a jury for the value of human life is never a futile effort and therefore there is no such thing as a hopeless death penalty case,” he says.

In 1987, Lane moved back to Colorado and started his own criminal defense practice. “He didn’t always represent headline cases,” says Denver attorney Doug Jewell of Bruno, Colin, Jewell & Lowe, who represents police and has handled many cases against Lane. “When I knew him 25 years ago, he would take the opportunity, while waiting in court for his case to be called up, to study up on Texas death penalty cases that he volunteered for.”

A few years later, during similar courtroom downtime, Lane’s interest in civil rights work was sparked by Darold Killmer, now his partner at Killmer, Lane & Newman. Trying cases down the hall from each other in federal court, they talked during breaks. Killmer was working on a race-discrimination lawsuit and Lane thought it sounded interesting. “There were so many times that criminal cases dovetail with civil rights and I was always kind of frustrated by my lack of knowledge,” Lane says. “‘What can I do about this? What can I do about that?’ So, Killmer mentored me down the path in terms of civil rights.”

Today, civil work makes up 80 percent of his practice. He won $50,000 for the Hells Angels over a warrantless raid on their clubhouse and another $15,000 when gang members were detained without cause for a traffic violation. He got Overland High teacher Jay Bennish reinstated after a lecture comparing President George W. Bush to Hitler led to his suspension. He filed a federal suit against the prosecutors responsible for the wrongful murder conviction and 10-year incarceration of Tim Masters in Fort Collins. He’s successfully fought for courtroom access, he frequently represents protestors, and in a move that upset many of his left-leaning friends, he also represented conservative Colorado Springs activist Doug Bruce in his battles with city hall.

“It’s the people that push the envelope, that say unpopular things that [the government] will always try to suppress and repress,” Lane says. “That’s what the First Amendment is all about. You should have the right to protest. Those are the people that put themselves in the crosshairs of the government guns, so the government is going to do everything it can to shut it down and stop it.”

Compared to criminal defense, the civil cases are low stress and fun. “In a criminal case, the best thing that can happen is that my client walks out of the courtroom, everybody leaves him alone and he doesn’t get a big pile of money,” he says. “That’s the worst thing that can happen to you in your civil case. I’m not trying to denigrate civil lawyers, I’m simply saying when the result of your trial can be your client is strapped to a table and killed, that puts a different complexion on it than, ‘Gee, my client’s not going to get a pile of money, boo hoo.’”

It was that attitude that allowed him to have a lot of fun with the Churchill trial. In 2005, the CU professor’s work sparked national controversy after Fox News’ Bill O’Reilly quoted a 2001 essay Churchill wrote about the Sept. 11 attacks that described the “technocratic corps at the very heart of America’s global financial empire” in the World Trade Center as “little Eichmanns.”

CU subsequently began an inquiry into Churchill’s research and fired him. Lane saw the case as a clear First Amendment violation and sued the university, claiming Churchill was fired not over research misconduct but the ideas he expressed.

The trial began in March and lasted nearly a month. “I love doing trials because it’s a chess match,” Lane says. “It is thinking on your feet. It’s legal combat and it’s all wrapped up in the Constitution and justice. It’s how we resolve disputes in society and there are huge stakes in every single case because the Constitution is involved in every single case. … And the Churchill trial, cross-examining Bill Owens on the witness stand, cross-examining Hank Brown, the parade of witnesses CU put up. That was nothing but fun.”

“People who think he’s just somebody who likes to be on TV and underestimate him because of it are making a mistake,” says Patrick O’Rourke, CU’s attorney in the case. “He’s smart, he’s a very good cross-examiner. ... Good presence, great voice. He wants to be really dramatic. He wants to make big sweeping statements and make everything into a big show and production. I can’t say he was not at least a little bit successful in making the drama have some effect.”

The jury ruled in Churchill’s favor, but awarded him just $1. Lane has argued that the verdict was exactly what his client asked the jury for—no monetary award because he wished to instead be reinstated. Rather than reinstatement, however, Judge Larry Naves vacated the verdict completely, adopting O’Rourke’s argument that the regents were acting in a quasi-judicial capacity that provides immunity. Lane has appealed the decision. “We won and the judge took it away from us,” he says.

Churchill has no doubt that Lane was the right attorney for his case, not only because of their shared belief in the Constitution, but because Lane is the best trial lawyer he’s ever seen.

They’d met before. In 2004, Churchill and seven others were charged with disrupting a Columbus Day parade. Each had their own attorney except for Churchill, who was representing himself. Lane was the lead attorney, and for the closing he was going to represent everyone but Churchill; Churchill would follow with his own closing. Instead, after Lane’s summation, Churchill stood and said he had nothing to add. “I have a big mouth,” Churchill says. “Shutting up and sitting down is not what I do. But he got everything that needed to be gotten and he did it very well. It was brilliant, compelling. He gets the points, the context, does it with passion in terms comprehensible to the jury.”

Churchill was equally pleased with Lane’s performance against CU. He says they mopped the floor with the university, disclosed their lies, and the ruling was wrong. “It never occurred to me that the judge would—after taking eight people’s lives, eight average citizens, taking a month of their damn lives—announce that university regents enjoy quasi-immunity, which meant there wasn’t basis for trial in first place,” he says.

Some analysts have said that O’Rourke outsmarted Lane, planting the trap that was the immunity defense. O’Rourke says that’s giving him too much credit, but he did strategize the immunity defense from the beginning. “When you’re in a case with David, you have to know what you’re dealing with,” he says. “You have to have a strategy for not just doing the case, but a strategy for how you’re going to work with him because he’s one of those lawyers who’s going to exploit every advantage, including what he’s going to do in the court of public opinion to affect the outcome in the courtroom. Some people would say that’s not right, but David’s going to look for those advantages and you have to be ready for that.”

Lane says he doesn’t call the press or invite them to his trials. They show up. “I will comment to the press if I think it’s going to be helpful to my case,” he says. “Saying ‘no comment’ simply means he’s saying his client is guilty, so I will say things about just about every case.”

Lane doesn’t solicit clients either. Balloon Boy’s dad called him. And while he jokes about the media hype, he sounded very serious telling Matt Lauer how wrong it would be to make a public spectacle of the parents’ arrest when they had agreed to turn themselves in. Furthermore, a letter he wrote to the district attorney in that case complaining that the sheriff had violated the law by publicly disclosing the existence of an ongoing child abuse investigation resulted in a special prosecutor’s appointment to look into the matter.

“It all goes back to the concept of my job is to control the government,” Lane says. “It is my job to force them to abide by the Constitution, and if they don’t, my client will walk out the front door of the courthouse if I have anything to say about it. Because the most dangerous entity on the planet is a government that can do whatever it wants whenever it wants with absolutely no controls.”

Lane’s firm is currently representing five Guantanamo Bay detainees. He is as proud of his involvement in those cases as anything he has ever done. “The government’s conduct cannot be defined by the people they’re dealing with,” he says. “We either have standards in this country for how our government behaves or we don’t. It’s not on a sliding scale depending on what somebody is accused of doing. Guantanamo Bay is one of the darkest chapters in American history and ultimately history will prove that. I have a secret security clearance so I can’t even tell you the kinds of things that exist, that this country has done, that will forever be a blight on America.

“When the mob is howling at its loudest,” he adds, “that’s when the system most needs good lawyers representing people.”

 

CORRECTION

The article that ran in our print magazine incorrectly stated that Juan Quintero had been convicted of sexually assaulting a 12-year-old girl in Houston. In fact, Quintero had been charged with indecency with a child and agreed to defer adjudication.

Additionally, the article has been changed to make it clear that David Lane was not the only lawyer involved in Quintero’s defense during the Johnson murder trial.

We regret these errors.

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