There are times when even the hottest defense lawyer in town knows his best isn't going to be good enough, a tense moment of clarity accompanied by the sure knowledge that a long winning streak is going to end -- right here, right now, just as soon as the judge's gavel signals the start of the trial.
Terry Niehoff is facing such a moment in St. Louis Circuit Court Judge Michael Calvin's court. One of the city's best young lawyers, Niehoff sits beside his client, James "Squeaky" Herron, a man accused of a horrible murder. As he readies himself for a crucial cross-examination, Niehoff knows two things -- his client is guilty as hell and he holds the only chance of Herron's getting out of prison before his Social Security checks start rolling in.
Not a lot of hope here. Herron's culpability is a given. Left in question is the client's degree of involvement in the crime and the maximum punishment the judge will mete out.
Niehoff knows an innocent client isn't a prerequisite of the job, but at a time like this he wishes he had something to hang his hopes on -- a client who can credibly claim innocence in a way Herron cannot, a client with a cause worthy of a lawyer's trust and best work.
"It's disappointing that I can't get an acquittal," he says. "I like it during a trial when the pressure's on, but the pressure's not on when you know somebody's good for it -- it's just a matter of how much."
Because the state has waived the death penalty in the case, the worst Herron can get is hard life, no possibility of parole. Conversely, the best Niehoff can do is get the Murder One charge argued down to Murder Two -- maybe, just maybe, Herron does thirteen years, the same as two accomplices. Either way, Niehoff's track record gets a black mark, ending a string of acquittals and dismissals that has earned him the reputation of one of the hardest-working street lawyers in town.
At 38, Terry Niehoff is not the lawyer rich white guys call when they catch a cocaine bust. For that, you go to Nick Zotos, Richard Fredman or any of the half-dozen established hired guns in town, lawyers who deftly work the system like Itzhak Perlman plays the violin. Niehoff is in a field by himself -- a guy who loves nothing more than a good murder trial; who gets clients from jailhouse referrals; who's rarely in the office, more often in the courts, in the prisons or out on the street, talking to prosecutors, witnesses, defendants, building defenses for those finding themselves in very deep water with no one else to turn to.
Most criminal cases don't make it to trial. Around 90 percent are disposed of through plea agreements, sometimes at the last minute. Given that statistic, three murders in a calendar year is a fairly significant load for an attorney in private practice. Since the beginning of 2001, Niehoff has tried six murder cases, all of them resulting in acquittals or dismissals -- pretty good, considering the state has a conviction rate in homicide cases of around 70 percent. These notches on his briefcase aren't the result of luck, either. The man is diligent and focused. As one prosecutor says of him, Niehoff "knows what bullshit is and what it isn't. It's always nice to play against someone who knows what they're doing, whether it's poker or tennis or a criminal trial."
He's good, all right, but sometimes the facts of the case get in the way, and no defense, no matter how heartfelt, can assail them. At the end of the day, sometimes good just isn't good enough.
In Division 13, one of the drab criminal courtrooms in the Civil Courts building, Niehoff prepares to cross-examine a state's witness, a former ally of Herron's whose testimony could now put him away for life. He stands, looks Dawn McIntosh in the eye and asks in his most incredulous tone, "You and Melissa attacked Yummy with a knife, and all you did was hold her legs?" McIntosh replies affirmatively from the witness stand.
McIntosh tells Niehoff what she has already told prosecutor Bob Craddick: Herron's girlfriend, Melissa Mozee, hatched the idea to kill Marnett "Yummy" Clayton in order to steal her money and drugs. McIntosh says she initially agreed to go along with the plan but that when it came down to the dirty work, she backed out, only holding the eighteen-year-old victim's feet as she kicked and flailed during a struggle during which 41 stab wounds were inflicted on Clayton with a steak knife, a butter knife and a pair of scissors. Some of the wounds were deep enough to go all the way through the girl's torso. The steak-knife blade, five-and-a-half inches long and serrated, was found in her thorax during autopsy.
These are the kind of grisly details that Niehoff routinely encounters in his practice, the sort that, if undeflected, can stick to his clients, spattering them with the indelible stain of guilt.
Six people were in a crackhouse in the 4400 block of Oakland Avenue at different times that night, February 21, 2001. One died, one almost died and the other four -- Mozee, Herron, McIntosh and her husband, William "Tyrone" McIntosh -- were arrested for murder. Now, eighteen months later, all but Herron have pleaded guilty, having turned state's witnesses in exchange for lighter sentences. As Niehoff puts it, "They've all pled and are now snitching on my client." Dawn McIntosh continues her testimony, describing how Clayton called out for Herron, who was in another room: "Help me, James, she's got a knife!" But, according to McIntosh's testimony, instead of rescuing Clayton, Herron knelt on Yummy's arms, restraining her while Mozee inflicted the killing wounds. She also says that the plastic bag over Clayton's head and the telephone cord around her neck -- found on her body a short time later -- were put there by Herron.
A big man with shaved head and wire-rim glasses, attired in pressed slacks and a sport shirt, Herron watches the proceedings intently, every so often glancing at Niehoff, who is scribbling on a legal pad. His mother, brother and other family members sit ten feet away, up front, in the first bench.
During the day-and-a-half-long trial, whenever there is a recess, Niehoff walks over to fill the family in on what is happening, the significance of some portion of testimony or a preview of coming attractions. His humanity comes out as he joshes with them -- none of them feeling especially jocular -- trying to relieve tension with the balm of words and light banter.
To hear Niehoff talk, most of his clients are basically decent people who took a wrong turn somewhere. True enough, the clean-and-sober James Herron looks like a regular guy -- no apparent jailhouse tattoos, no wiseguy demeanor; the kind of guy you'd stop on the street and ask for directions. Likewise, says Niehoff, "It always amazes me how nice the families are. These folks," he says, nodding toward the Herrons, "are just the sweetest, nicest people. The mother is a school principal. This is breaking her heart. The entire family is fasting and praying for good results."
Clayton's mother is there as well, and she listens intently to the gory details of her daughter's death, including the assistant medical examiner's clinical yet chilling description of the postmortem findings. Niehoff listens, too. Even though he has sympathy for the dead girl's mother, he listens with a purpose -- for weak points, inconsistencies, anything he can use to punch holes in the opposing counsel's armor. He's looking out for his client, a guy with five priors who could never rise above his drug habit.
By Dawn McIntosh's account, the boyfriend-girlfriend team of Mozee and Herron committed the murder. Dawn's husband, however, will later testify that it was all Mozee's doing. This is a feather in the defense's cap.
According to trial testimony, the four of them, including Herron, put Clayton's body in a duffel bag and set it on the tenement stoop like yesterday's garbage -- but not before smoking the four rocks of crack they took from her. Then they waited for Craig Young, who had gone to White Castle to get food for Clayton. When Young walked in the apartment, he was jumped, bound with duct tape, stabbed three times in the neck and throat and then robbed. Young, bleeding badly, was left for dead. Yet somehow he was able to get downstairs to the entrance of the building. The door was deadbolted, but he kicked out a window and got away. Young survived and later testified that he was attacked by Herron.
Niehoff pursues his goal during cross-examination, laying the basis for doubt. He nails down testimony from the assistant medical examiner that Clayton's fingernails were broken as she attempted to defend herself. "My guy had no scratches when he was arrested," Niehoff says.
Likewise, he establishes that there were no bruises on Clayton's body, only multiple stab wounds. "My guy is a big man," Niehoff asserts. "If he knelt on Yummy to pin her down, he would have left bruises."
Maybe it wasn't Clayton who called for help during the attack. Niehoff believes it was Mozee. "That's my defense," he says. "James is in the bedroom, playing cards with Tyrone, getting high. James hears Melissa call for help; he runs in the room, sees them fighting -- his girlfriend in trouble! -- and he jumps in. Before he knows it, [Clayton's] dead and it's murder."
Through a plea agreement with the St. Louis circuit attorney's office, the McIntoshes get thirteen years each and Mozee gets "soft life" -- 30 years, with a mandatory 85 percent to be served in prison. Herron, charged with first-degree murder, has the death penalty hanging over his head. But the state waives the death penalty and offers him the same deal as Mozee. After talking with Niehoff, Herron declines the prosecution's offer. Niehoff believes there is a pretty good chance that Herron will get the same sentence the McIntoshes have received. They will chance a trial, and a bench trial at that.
It is a tactical move. Niehoff explains: "True, juries in city courts are more likely to find not guilty, but we're not contesting James' innocence, only his degree of involvement. And in this case, the jury doesn't decide the punishment anyway -- the judge still gets the sentencing."
It's a gamble, not taking the state's deal. A conviction on Murder One is automatic hard life. However, one could be charged with first-degree murder but convicted of the lesser second-degree charge. Niehoff hopes to persuade Judge Calvin to choose the lesser charge. "First-degree requires evidence of planning, forethought," says Niehoff. "These people were all high on crack and liquor. There was yelling, all sorts of commotion -- my guy didn't plan this!"
At 12:30 p.m. on a Wednesday, after closing arguments, Judge Calvin announces that he will make his ruling at 9:30 a.m. the following Friday. It will be the longest 45 hours of James Herron's life.
Terry Niehoff does not do lunch the first day of the proceedings, explaining that he has no appetite during a trial. The second day, the trial completed, he devours meatloaf, mashed potatoes and green beans at Mickey's, around the corner from the courthouse. And though his appetite is back, he still has a sinking feeling.
"I'm always optimistic going into a trial and always pessimistic coming out," he says. "I worry that I haven't done well or that I've missed something."
Up close, you can see the small gold earring pressed into his left earlobe. It doesn't dangle. It's virtually unnoticeable from ten paces. Still, it's his trademark -- that and a subtle, kind-of-secret smile that could be mistaken for a Bruce Willis-type smirk. Most lawyers are far too conservative to sport an earring in the courtroom, but this lawyer counts among his sources of inspiration William Kunstler, the radical trial lawyer who took on the system in the Chicago Seven trial of 1968. But whereas Kunstler and his famous clients, Jerry Rubin and Abbie Hoffman, were repeatedly cited for contempt of court during that trial -- outbursts peppered with obscenities -- Niehoff is nothing but respectful of the law.
"Terry Niehoff," says St. Louis Circuit Judge Jimmie Edwards, "is quiet, not boisterous, and he does a great job of trying his case -- and juries like him." Edwards continues: "And why do juries like a certain lawyer? With Terry, it's because he comes across as being honest. He has a reputation of not being misleading in any way."
A ten-year veteran of the bench, Edwards says that personal style can be every bit as important as jurisprudence: "We assume that all these lawyers who stand in front of us know the law, and with our discovery rules in the state of Missouri, most lawyers know everything a witness is going to say."
If the legal playing field stays even, with no scrap of crucial evidence hidden by one side or the other, a criminal trial such as this one boils down to a test of character -- the defense attorney's versus the prosecutor's.
"The manner in which they distinguish themselves is really how credible they are in their presentation before the court and the jury," Edwards says. "So whether a person is considered to be a good lawyer versus a superior lawyer turns on the perceived credibility of the lawyer. That's the very fine distinction among lawyers."
Edwards says Niehoff's "quiet forthrightness" gives him good credibility with juries.
The good lawyers, Edwards continues, generally go beyond the basic investigation: "They know their clients, their client's family, any criminal history that person may have, and they're able to educate the judge with respect to the person as opposed to the defendant."
There's real time, and then there's court time.
It's Friday morning, and 9:30 has come and gone. Niehoff has a case in the county courts, and he's stuck on Highway 40, trying to get downtown. He phones Judge Calvin, advising him of the delay.
Out in the hall, Bob Craddick, an eighteen-year veteran of the circuit attorney's office, takes the delay in stride. "I don't think that going to trial did Mr. Herron any good," he says. "I thought he wanted to tell his story or he had a favorable witness to bring in, but he only sat there throughout and didn't even testify on his own behalf. And when you start showing pictures of mutilated corpses and bloody knives, it usually doesn't go well for the defendant."
Clearly Craddick believes Herron should have taken the soft-life sentence offered by the state. "He'd be out in 26-and-a half years. He's got five prior convictions, and here he's looking at six class A felonies. I'd be stunned if the judge gives him less than the soft life -- stunned!"
By the time James Herron stands before Judge Calvin -- this time in prison orange -- it is 10:45 a.m. Craddick is near the witness stand; Niehoff stands beside his client.
The judge makes the formal proclamations about Herron's having had adequate representation and getting a fair trial. Then he lays it on, addressing the defendant: "What you did was" -- he pauses, searching for the right tone and phrase -- "unbelievably cruel. There's no place in society for this conduct."
The words are as sharp as a judge's final gavel rap.
Calvin finds Herron guilty on all counts but reduces the Murder One charge to Murder Two.
For a flickering moment, it looks as if Niehoff's best has been just good enough to save Herron from a sentence that would keep him in prison for the rest of his life. But as every lawyer knows, the law can be a fickle mistress.
Before sentencing, Judge Calvin allows both lawyers to make recommendations. Tersely, Craddick asks that Herron be given the max on all counts and that the sentences be made to run consecutively. Niehoff takes about five minutes to make his points, reiterating that his client is an almost incidental accessory to murder and doesn't deserve anywhere near the level of blame of confessed killer Melissa Mozee. "I'd like you to consider something in between what Melissa got and what Dawn and William McIntosh got," Niehoff says.
"I value the life of that eighteen-year-old girl [Clayton] more than what may have been bargained for," Calvin replies.
At this point, it is clear that Herron will get little mercy from the court. On the first two counts, murder and armed criminal action, Calvin gives Herron two soft-life terms but sets them to run consecutively. In the hard math of the criminal-justice system, that tallies up to at least 53 years. Herron's mother, in the front row with the rest of the family, puts her hand to her cheek and gasps. The other counts draw less time.
Unless Herron wins a long-shot appeal, he will die in prison.
Unfortunately for him, the end of Niehoff's hot streak has come during his trial.
The law office is on the ground floor of a building located at the corner of Iowa and Lafayette avenues, just west of Jefferson Avenue. It looks like any other brick building in South City. Only the faded posters and notices stuck on the windows provide insight about the occupants -- a photo of Martin Luther King Jr., the text of a pledge handed out at the Million Man March, an American flag, a year-old announcement for KwanzaaFest, a notice offering free legal consultation for Vietnamese-speaking people and partisan signs from political contests: "Vote for Darlene Green ... William 'Lacy' Clay Jr."
Niehoff shares the space with three other attorneys and an insurance brokerage. In a neighborhood that has seen better days -- 50 years ago -- the office lacks the prestige of a downtown address or a Clayton address. Free parking is the only perk.
Just try to catch Niehoff behind his desk. Good luck. The office secretary says: "Oh, he's hardly ever here. He's got a lot of trials."
She's right. He lives amid the bland trappings of state and federal courtrooms -- trying a case in the city, making an appearance in the county, attending a preliminary hearing in St. Charles or Jefferson County. When he's not in court, he's meeting with clients, many of whom are in stir.
Federal prisoners, says Niehoff, are scattered far and wide. All too frequently, he makes the 130-mile trip to the federal prison in Ste. Genevieve. With the driving, that's a half-day trip for a one-hour visit with a single client. Jails and prisons, he says, depress him. Yet he is a well-known figure at the Medium Security Institution at 7600 Hall Street, commonly known as the workhouse. He has, at any given time, about fifteen clients jailed there, and when he's not in trial, he visits once or twice a week. Funny thing is, the more he goes, the more often he goes. It's called referrals and he's not too proud to take them from prisoners.
"Typically," he explains, "when someone gets locked up on a serious charge, they go to the workhouse, and, there, lawyers' reputations are well known. I have clients locked up there for two years awaiting trial, and they know every case that's tried and every result -- and they talk about it."
In a profession in which lawyers who take out ads or solicit by mail are chastised by their peers, Niehoff doesn't advertise, doesn't even have his name in the Yellow Pages. "Who's gonna get their lawyer out of the Yellow Pages?" he asks. "Word of mouth, that's my advertising."
Word of mouth reached the family of Rodney McIntosh (no relation to William and Dawn McIntosh), whom Niehoff represented in two separate murder charges two years apart. The first time, McIntosh walked; the second time, the case was dismissed.
Niehoff had already represented three members of the immediate family on criminal charges before Rodney came along. "They love me," says Niehoff of the McIntoshes.
"We called him because we'd heard he was good," recalls Rodney's grandmother Margaret McIntosh, who raised Rodney. "Terry sat us down and talked to us. He said if we disagreed with something to let him know. Terry talked with Rodney every step of the way and gave him a voice in everything he was doing. He was there for us, and we think the world of him -- he's family now."
Niehoff tries to steer his clients down the right path, but it only works if they listen: "I told him after the first murder case, 'Rodney, get out of town. The police know your name, and to them you didn't walk on a murder charge because you didn't do it; it's because you got lucky."
About a year later, Rodney caught a second murder rap.
Although Niehoff got McIntosh off on two serious charges, he still wound up in the pen. Sometimes a defense attorney's job is to advise his client on which path has fewer thickets. "On the day the murder was dismissed," says Niehoff, "I got a call from a U.S. attorney, and he says, 'How's Rodney McIntosh doing?' This came out of the blue, and I was taken by surprise. This attorney had heard that in connection with the murder, Rodney had also pled guilty to three drug charges and one weapons charge, and he wanted to know if he was going to get probation. If that was the case, his office was going to bring federal charges.
"Now, at that point, the cases were pending. It was going to be either seven years or probation, and I intended to get him probation because he'd never been convicted -- these were his first crimes. I asked the federal attorney: 'If he goes to prison, will the feds leave him alone?' He said yes, so Rodney took the seven years' state time."
For the legion of lawyers sitting in air-conditioned office buildings shuffling paper all day, taking lunch at Cardwell's or Tony's, criminal-defense work may seem like something out of an Elmore Leonard novel: colorful, perhaps, yet ultimately unsavory. After all, not all of the clients are innocent.
"Others in the profession can look down on you for being a criminal lawyer," says attorney Richard Fredman, "and, to some extent, it is the asshole end of the profession. That's why there aren't too many of us. The work is just too nerve-racking. You have to deal with the clients, the police and the judges. It's true that the criminal stuff is not as mentally challenging as many areas of the law. Legally, it's pretty straightforward, but the work is very worrisome. You know, I haven't had a good night's sleep on a Sunday night in 30 years. And the people that do this, either they bite their fingernails or they drink too much. I know one trial lawyer, who's very competent, who eats paper. There's another one who basically eats his hand -- I did that until I thought I'd lose my hand. By and large, I think those are the ones who care."
Of the thousands of lawyers in the St. Louis area, only a fraction concentrate on criminal defense. Of those in private practice, only a fraction are considered superlative. Stalwarts such as Art Margulis, Don Wolff and Burt Shostak arrived long ago -- so long ago, in fact, that they are now winding down their careers. At the upper tier, established but far from retiring, are attorneys such as Fredman, Paul D'Agrosa, Nick Zotos, Richard Sindel, Brad Kessler and Scott Rosenblum, all in their forties and fifties. Kessler and Rosenblum, in particular, get gallons of ink handling high-profile cases.
Chet Pleban is in a class by himself, renowned for defending cops accused of brutality and civil-rights violations. Nels Moss, a former prosecutor with the St. Louis circuit attorney's office, personally put dozens on death row during a three-decade run. He is now in private practice, defending the accused.
Moving up through the ranks, gathering laurels, are the younger, hungrier criminal-defense guys -- Will Goldstein, Phil Eisenhauer and, of course, Niehoff.
Women are not well represented in this area of practice. Some, like Doris Jones, made a splash and moved on to other endeavors. Evelyn Lewis, whom Judge Edwards calls one of the best criminal-defense lawyers in the city, still soldiers on.
Overall, though, this is still a boys' club.
"I think it's a male-dominated field," says Terri Johnson, a former public defender who once represented Dennis Rabbitt, the South Side Rapist, but is now in private practice, "and I think when people go out to hire an attorney, generally they want a man. A man is seen as powerful, aggressive, less likely to get rolled over by the prosecution. I think when people go to hire a female defense lawyer, oftentimes they do it for a calculated reason -- it may be a sex charge or something where the defendant doesn't want to seem overly powerful. For instance, a woman standing beside the defendant, who is not afraid of him, might give a good message to the judge or the jury."
The public defender's office is a sort of nursery for future big guns in the criminal-defense field. Public defenders certainly get their baptism by fire -- defending persons accused of serious crimes -- earlier and more frequently than private criminal-defense lawyers just starting out. Yet, as the Middle Eastern proverb goes, for every bean there is a buyer. Whether it's his first trial or his 50th, there is a criminal-defense attorney out there for every pocketbook.
Before he died last year, Charlie Shaw was considered the best, the first choice if you were charged with murder -- if you could afford him.
"He was gorgeous in the courtroom. He had a facility for cross-examination. He would seize on little things and just drive a truck through them. There wasn't anything like it," says Shaw's partner of 30 years, Joe Howlett.
Shaw was already famous when he started his career in 1949. As an Army lieutenant in World War II, he escaped from a Nazi POW camp. It's been said that Shaw was the inspiration for the movie epic The Great Escape. At his funeral, the eulogizer made a small distinction: "In the movie, Steve McQueen gets away on a motorcycle. Charlie used a bicycle."
In a career that spanned 50 years, Shaw tried more than 200 murder cases. In a celebrated 1980 murder trial, Shaw argued self-defense for bar owner Tom Burnham, a character almost as colorful as Shaw himself. After a fight outside his tavern in Westport Plaza, Burnham shot an unarmed man, a karate expert who had just kicked Burnham in the head. The state's forensics expert testified that blood patterns on the ground near the victim indicated the victim had been shot in the back as he fled. During his cross-examination, Shaw had just one question: Was it possible that the impact of a bullet could have spun the victim around? It was, said the expert. Burnham was acquitted, and for years after he told the story of that shooting. He was proud of it, and he never failed to state how grateful he was to Charlie Shaw for getting him off the hook.
At the moment when a defendant accused of a serious crime hears the jury foreperson read the not-guilty verdict, he loves his defense attorney more than his mother, girlfriend and dog combined. It's a sentiment that sometimes cuts both ways.
"I have clients I feel very good about, that they're getting a second chance," Niehoff says. "Perhaps it's conceit, but I'd like to think if they would have had somebody else who didn't care enough or try enough, they wouldn't have gotten that second chance."
Niehoff is no Charlie Shaw, nor does he aspire to be. Shaw was a natural showman who wore a Stetson in the wild frontier of Clayton, his charisma potent enough to evoke the observation that by the time he sat down at the counsel table, every juror in the box was leaning his way. Although Niehoff "has enough theater" to get his point across, he is decidedly low-key. "I have kind of a minimalist approach to trials," he offers. "I concentrate on what I'm there for and leave the rest alone. The more you get up there making what I would consider frivolous objections, the more opportunity you have to shoot yourself in the foot."
What he is adept at is the legal sleight of hand routinely parlayed between prosecutor and defense attorney. Some lawyers refer to the process as a dance; others see it as a sort of chess game except that, instead of losing a rook or a knight, a false move in this game can cost a defendant -- the pawn -- years of freedom. The plea-agreement or plea-bargain process has no pat formula, no definitive protocol. What makes it challenging and idiosyncratic is a constellation of factors -- from the facts of the case to the degree of media coverage to the personalities involved.
"On a high-profile or highly emotional case, it is sort of a dance," says Terri Johnson, the former public defender. "You can play games with them about possible suppression issues or whether you would have jury sympathy. Sometimes the cases are just so horrendous that you don't have anything to offer and you're essentially begging for mercy from them. Other times, you've got things to play with."
The decision to seek a plea bargain is not necessarily beneficial to the client, especially one who insists he or she is innocent. But if a deal is sought, that ineffable quality of shrewdness -- not a subject covered in law school -- comes into play.
Says Niehoff: "I don't approach it unless the client and I talk about it and he instructs me to seek a plea agreement. It could be the day before trial, could be the day of trial, and in some cases it could be from the get-go. I'm looking for a deal because I recognize the situation."
Little wonder that some defendants see their attorney as some sort of god who holds freedom in the palm of his hand.
Terry Niehoff came to the Missouri bar with a chip on his shoulder, a grudge against the system stemming from a brush with the law some twenty years ago -- a shoplifting charge he managed to beat in court. He says he got roughed up by an off-duty cop. It gave him a healthy mistrust of those staunch protectors of law and order. This is a good thing for his clients.
"I had the shit knocked out of me and was thrown into a cell with another guy who also had the shit knocked out of him," Niehoff says. "I was able to make bond and get a lawyer because my parents had a little money. I went to trial and I was acquitted, but it made me realize that lots of people who're mistreated don't have that opportunity. So at that time I decided to go to law school and be that person who they could come to."
Niehoff also has a healthy hunger for the action of the courtroom, a thirst for the juice of taking on a tough case and winning it. Consorting with accused murderers and rapists is just the price tag attached to the high he gets from trying a case.
"As the penalty increases, the likelihood of going to trial increases, and that's why I end up with the serious cases," he says. "Trial work is exhilarating. If I couldn't try cases, I wouldn't want to be a lawyer."
It doesn't hurt to be a former prosecutor -- Niehoff did a two-year stint with the Jefferson County circuit attorney's office. It gives a lawyer valuable insight, a view from both sides of the courtroom fence.
"While I was in law school, Charlie Shaw once gave a talk," Niehoff says. "I spoke with him afterward, and he said the best defense attorneys have worked as prosecutors. They've seen the other side. They get to know how prosecutors hide the weaknesses of their cases -- and they do, from telling officers not to put certain things in their reports to not doing certain tests because it might hurt their cases and so forth. It helps you see the warts very easily, because as a defense attorney what you're doing is trying to destroy the state's case. If you could see how they build it, it's much easier to take it apart."
Apparently being a chess master also helps. "Terry Niehoff was twice Missouri state chess champion, and what the prosecutors say is, he's always two steps ahead of them," says Terri Johnson, a fellow alum of the St. Louis University School of Law. "Terry's a fantastic lawyer. I think it's scary how smart he is. If I was charged with murder, I would hire him as my lawyer."
When it comes to getting paid, lawyers are almost as famous as country doctors for what they'll take in lieu of hard cash. In less capitalistic times, lawyers took livestock as payment, or a lien on a client's home. One lawyer took a motorcycle instead of money.
Some clients prefer to pay their lawyers in an extralegal fashion.
"I represented one guy on a federal drug case," says Niehoff. "I told him how much down I wanted. Later that day, he comes into the office and says, 'I don't have the cash, but will you hold this as collateral?' And he drops a key of powder on my desk. Well, my first thought is that I'm being set up, so I start talking loudly for the benefit of whoever may be listening: 'That doesn't look like a money order or cash, so I suggest you pick it up and come back with one of those.'"
Another ethical trap: standing by while a client lies while under oath. Here's the catch -- the client has an absolute right to testify, but an attorney has an absolute duty to tell the truth in court. It's another tightrope to walk, and it often requires some cold-hearted calculation.
"What I do," says Niehoff, "is, I don't ask my clients what happened. I don't really want to know the client's version. I want to know what the evidence is going to be. For instance, if he says he did the crime and then four people come forward to say they were with him on that day, I can't call them as witnesses. That's my way of not suborning perjury.
Another day, another courtroom. Terry Niehoff stands in a corner of Circuit Judge Terry Cundiff's courtroom, Division 6, St. Charles County Circuit Court. He is dressed in a green checked sport jacket, with a white shirt, a slightly ostentatious tie, gray slacks and black wingtips. Niehoff shuffles his hands alternately from back to front, talking with a public defender he knows. He makes light conversation, laughing at some remark. At the moment, he looks more like a likable character in a TV sitcom than a lawyer.
The occasion is a preliminary hearing for his client, accused of drug trafficking. The prosecutor was supposed to have the arresting cop here for questioning, but the cop, it seems, is late and may not show at all. Judge Cundiff, the court clerk, the prosecutor, Niehoff -- everyone -- just wait. Meanwhile, two prisoners enter the courtroom through a back door, escorted by deputies. As they take seats, one prisoner blows a kiss to a woman seated in the gallery.
The defendant was caught in a hotel room with a young man. There were drugs, and the police officer decided they were her drugs. This doesn't make sense to Niehoff.
"I want to question the officer to determine what made him decide the drugs were hers," he says. "I mean, usually when a man and woman get together, it's the man who brings the bottle of wine."
Niehoff never gets a chance to question the officer. As the clock ticks on, his client decides to waive her right to a preliminary hearing, hoping to keep her options open, hoping to win probation from a sympathetic judge if she eventually decides to plead guilty to these charges.
This is no surprise to Niehoff.
"Half my life is spent waiting and having plans change at the last minute," he notes with a shrug and a "what the hell can you do?" smile.
Just as he readies to leave, a uniformed cop shows up.
"Are you here for the Jones case?" asks Niehoff.
That's right, says the officer.
"Well, she just waived the hearing."
Then Niehoff is gone, hustling to another courtroom, another prison, another trial, another part of a long, long day.