Friday, March 28, 2008


In the years that I have worked as a Pubic Defender I have slowly lost touch with a lot of my friends, whether they live across town or across the country. I always feel busy, am quite frequently mentally exhausted at the end of the day, and have a new perspective in conversations that is often unsettling to people who live in safe, suburban neighborhoods and picture themselves miles away from “those people” that I see every day.
I don’t know if this withering of friendships happened because I started this job right out of law school, when I was so busy studying and taking care of my kids that my friendships began to slip away anyway. Perhaps this is something that happens to everyone as they hit middle age and focus on careers and family, naturally letting go of outside attachments. I try to stay in touch with childhood and college friends, and e-mail has helped with this, but the conversations don’t come as quickly as they once did. The miles between us and the newly forming lines on our faces seem to highlight to different paths we chose and the resulting differences in our lives. I miss my old friends, though, and know that we could rekindle that which brought us together with a few hours and a few beers to help us reconnect.
But while my past friendships have faded, my job has allowed me to connect with complete strangers, sometimes in just a few minutes, in an entirely new way. Of course, there are those people who absolutely hate me when they realize the role I play or see who I stand beside. Even my own clients hate me occasionally, blaming the closest person for their problems and reaching out, pulling me down, the way a drowning person panics and can kill a person who tries to pull them to safety.
Once in awhile, though, I get the chance to help someone in a such a way that we each walk away smiling, as if we know each other very well despite the fact that we barely know each other’s names. Sometimes the real drama of the courtroom, the possibility of a life-changing sentence, or a liberating acquittal, mean that my clients and I get quickly down to the essences of who we are as people. When this happens, it highlights the fact that, at some level, we are all very similar, and that our fates are all tied together, the way all religions try, and usually fail, to teach us.
Enrique and I were probably the same age. He spoke very little English and I very little Spanish, his native language. Consequently, when I met him for the first of two times, we were in my office with an interpreter. I told Enrique, on this Monday morning, that he missed his court date the previous Friday and that a warrant had been issued for his arrest. I assured him that while this was a problem, the fact that he was here meant it was a problem we could fix relatively easily, since the letter telling him of his court date had come back undelivered. I knew I could explain to the judge that Enrique’s presence, the undelivered letter, and the obvious language barrier, meant that he was not avoiding court but simply unaware.
Still, as I told Enrique about the warrant, his shoulders slumped and he looked frightenly at the floor. To make matters worse, I had to tell Enrique that the charge he faced, falsely reporting information to a police officer, carried up to one year in “la carce” (the jail) and that it could lead to him being removed from the country by the immigration authorities. I tried to sugar coat this even worse news, telling him that perhaps we could convince the prosecutor to dismiss that more serious charge and allow him to plead guilty to the lesser charge of possessing a false piece of identification. I knew that charge carried a maximum of 90 days in jail and that, because of this, it would be much less likely to lead to deportation.
I told Enrique about the possibility of deportation because a new law required me to warn him, and all my clients, that if they were non-citizens, a conviction could result in deportation. The intent of this law was clear: to ensure that non-citizens did not plead guilty to crimes in state court that could send them home via federal court without first knowing about this possibility. Though the intent of this law was good, its effect on Enrique was typical. His eyes grew even more round as I told him, as I was required to, that he not only faced up to fifteen months in jail, he could also be shipped back to El Salvador where there were children who needed the dollars he religiously sent them few jobs but few jobs to provide this.
I tried to calm Enrique down, telling him that while these penalties were scary, he was presumed innocent and had the right to a lawyer. My words had the effect of telling a condemned man that at least he had a good meal to look forward to. I assured him that while he could go to jail that there was also a possibility that we could win his case together and that he could go back to work without any expense or penalty. Hearing about this possibility, and seeing me in my cramped office, in my nice used clothing store suit, didn’t seem very reassuring to Enrique. I knew that while acquittal was possible, the judge who was assigned his case would punish us for taking up his time with a trial if he lost.
While I always worried about losing the trial and having to watch my client go to jail, thinking about them having to leave jail and catch an I.N.S. bus back to the border was a new fear for me. I worried, but tried not to let it show as I kept talking. Enrique needed confidence, so that he could sleep at night and so that he would look to the judge or jury like the worker he was and not like a border-hopping criminal, as the I.N.S. might label him if were convicted of the more serious charge.
I had to model confidence too, so Enrique would trust me and so that look like a judge or jury would listen to us, if it got to that point. If I let my fear of Enrique’s deportation show on my face, a judge or jury could sense this and perhaps wrongly conclude that because this man’s lawyer looked afraid and unbelieving, he must guilty. Poker faces were essential in my job.
I had to laugh at myself a little for being so concerned, not because Enrique’s case was minor, but because my fears- and Enrique’s possible fate- were relatively minor compared to the fears other lawyers I passed in the hallway faced every day. After all, I was a “misdemeanor” public defender. I defended clients whose individual charges carried at most one year in jail. While judges had the power to sentence my clients to more than one year in jail, if they plead or were found guilty of multiple charges, I never saw this happen. Judges reminded us often that they had this power, to make sure we kept up the plea bargaining that typically sent them home around three o’clock, but they rarely used it.
When I saw my boss in the hallway, in a suit and without his usual fun-loving Irish musician expression, I knew he must be doing another murder trial, with his client’s life in his hands. When I read the newspaper’s account of the trial he was involved in that evening, I had to laugh at myself for losing sleep over a misdemeanor case. How would I react when instead of one year of my client’s life being at stake, the client’s life itself were? Perhaps I didn’t really want to “move up” to felonies as much as I imagined. Such a move would help my career, but could I sleep at night facing that kind of pressure?
I was afraid for Enrique, not because I thought he would go to jail but because I knew how ineffectively the “justice system” bureaucracy often worked. I long ago learned that bureaucracy and justice were like oil and vinegar. If they were not constantly agitiated, shaken up by strong advocacy, they would soon naturally separate. Enrique was charged with the worst type of misdemeanor, the kind that carried up to one year in jail. I didn’t know much about the case yet- since the prosecutors had not yet given me the police reports I asked for- but I suspected that son Enrique had been charged this way not because what he was alleged to have done was particularly bad, but because he happened to have been ticketed in Ralston, a suburb of Omaha where Omaha’s law didn’t apply. The “RAL” next to the officer category on the computer screen told me he was ticketed in Ralston. I had seen countless cases like this, and I suspected Enrique was charged with the more serious false reporting because the prosecutors were unable to charge him with false information, which carried a maximum of only six months in jail.
For Enrique, the difference was immense. If he was found guilty of the charge carrying up to a year, he could be bussed back to El Salvador. Maybe someone in the federal bureaucracy would read up on Enrique’s case before they started “removal” proceedings against him and see that Enrique was not a criminal but simply a man who wanted to work. But I had seen enough of bureaucracies to know that that the system would flow, like water, down the easiest course, even if it drowned real people along the way.
I worked in the center of a massive bureaucracy and I saw it struggle to be efficient and also saw it sacrifice effectiveness along the way. My role was to slow this process down, to get judges and prosecutors to focus on making the system effective as caseloads grew steadily and the need to work quickly became necessary. It wasn’t easy. Judges saw me constantly and grew sick of my face as I slowed down the proceedings to tell them my client’s stories, either after a during a trial or before sentencing. I couldn’t blame them, but this was also a job they appointed me to do. I didn’t want them to like me, only respect me. I tried to “pick my battles,” to stay efficient, and to get to the point quickly. But the ever-increasing number of cases and my place at the end of the “pecking order,” beside my indigent client made me and my clients a convenient scapegoat in a system bursting at the seams.
What lies behind such an overburdened system? Politicians from both sides of the aisle promised to “put more cops on the street” and voters lined up behind them. But more cops meant more cases and more demand “downstream” in the justice system. Voters weren’t told this and were also promised “no new taxes.” They wanted to have their “cake and eat it too” and no one told them this wasn’t possible, without serious side effects. They wanted the “security” of more police presence but didn’t want to pay the higher taxes that more judges, court personnel, prosecutors, and public defenders required. More police meant more tickets, more cases and more overtime for police officers. It also meant overflowing courtrooms, overworked public attorneys and overwhelmed justice systems. Judges could either work longer hours or more cases through more quickly. Which path do you think they chose, with a slim chance of being voted out of office and politically-powerless defendants paraded before them?
Enrique faced up to a year in jail for conduct in the suburbs that- five blocks away in the city- would have carried only six months in jail, and not led to a potential trip back to El Salvador. Hearing this information, Omaha probably sounds like a nice place to live, since the punishment for Enrique’s alleged crime is half as severe in the city compared to the suburbs. While this was true in Enrique’s case, the reason behind this had nothing to do with leniency or effectiveness. Once again, the bureaucracy ran only on efficiency. All misdemeanors committed in Omaha carried only six months in jail because any crime carrying more jail time required a trial by jury. Our founders mistrusted governmental bureaucracies and believed that we were all endowed by our creator with inalienable rights, such as the right to a jury of our peers in criminal cases. However, the Supreme Court determined that this right only applies to “non-petit” offenses, which carry (you guessed it) more than six months in jail. The City of Omaha thus set the maximum penalty for all misdemeanors at that same level, so that our judges could order jail for half to year and yet our City would not have to pay for expensive, potentially-time consuming jury trials.
The efficiency of such a system was undeniable, but the ineffectiveness was inescapable. Judges conducted misdemeanor trials without even allowing the attorneys to take the time to sit down at counsel tables. That took too much time. All but a few of the twelve County Court judges I practiced in front of made the attorneys stand directly before the bench, so that the witness giving testimony stood between the prosecutor and the defense attorney. The Defendant was asked to move to the other side of his or her attorney, so that there were four people standing before the judge. Things moved very quickly this way, but the process looked more like an assembly line than a judicial proceeding. Like a Wal-mart clerk working in the return department, judges routinely called out “next” when a trial was finished or a sentencing concluded.
Most people in Omaha, and in society in general, kept a distance from the criminal justice system, the way people never want to inside of a jail. After all, that is where we dal with the “bad people,” the people who lead the six o’clock news. From this safe distance, the system appeared to run smoothly. After all, your taxes stayed low and the judges treated you nicely, if by some twist of fate you appeared before them for a seat belt violation or a speeding ticket. Of course, they saw you in your suit and tie, and knew that- unlike my clients- you held political power. If you made a complaint, people would listen. Judges understood this instinctively. After all, they were appointed by the Governor. They were charged with interpreting the law of the land, but they got there by knowing the unwritten golden rule: know the right people, treat them well and don’t take chances.
Only those of us who stood beside the politically powerless, clients whose cases made up the bulk of the misdemeanor cases knew that while the wheels of the system turned efficiently for people with political power, the system itself was ineffective much of the time. After all, people without political power represented a huge majority of the cases it ran on. Public Defenders saw our clients ground beneath the wheels of the system while we tried to save and defend them as best we could. After a few years of this, we usually listened to our mothers who told us not to be public defenders because “you’ll get tired of dealing with those people.” My mother was indeed correct. I did get sick of “those people.”
However, it was judges, for the most part that, I grew sick and tired of. They had a chance to pursue justice, to keep police power in check and to treat people fairly. They had six figure salaries and no real fear of losing their jobs. They had contests to see who could get done with court the quickest, like boys racing on their bikes. They didn’t care that the “Minority and Justice Task Force” found that our county’s court system treated Blacks and Hispanics worse than white ones or that our city seemed only one incident away from a race riot. Judges had money, power and personal friendship with the “tough on crime,” Republican governor who gave them their jobs. Why would they care about politically powerless, poor clients paraded before them? Taking your frustrations out on criminal defendants was both politically savvy and convenient. The papers and the voters would leave you alone if you appeared “tough on crime” and while you saw the problems with the system itself, there was always a pock-Mikeed, poor defendant before you who had broken some law, even if it was only driving to work on a suspended driver’s license. Better to focus on and punish this person’s problem- which seemed simple from your suburban, melodramatic, “let them eat cake” perspective- than to focus on the complex issues that plagued the system itself.
Judges had to know that the system was not working and that it was infallible. Most police officers wouldn’t lie, but the ones who did lie were often not even creative about it. They knew the judge would believe them over my clients, even if I caught them in a blatant lie. The judge would slide me a sly smile, find my client guilty and hand out sentence that typically carried a “trial tax,” which was a commonly-understood penalty for having a time-consuming trial instead of an efficient plea of guilty. The message to my clients- and to the police officers- was obvious. My clients learned that trials before judges were “slow guilty pleas” with harsher punishments than fast ones. Police officers, who often referred to giving sworn testimony as “testi-lying,” learned what they had to say to get a conviction and that the judge would believe anything they said, no matter how bad any cross examination made them look. “Next,” the judge would say, and they would have the last laugh as the defendant was led away in cuffs, by another uniformed, unionized officer.
Judges had to know that some officers were willing to lie to get a conviction. Judges also knew that police officers were paid four hours of overtime pay for each court appearance they made. This gave officers an incentive to arrest people for minor charges. They could then come to court, watch the judge take quick, efficient, guilty plea, and then go home, laughing all the way as they drove past the bank. Police officers made a lot of boat payments by working “court overtime,” which meant coming to court for minutes and then taking advantage of the union contract which guaranteed four hours of overtime pay. What a deal. Who could blame them for taking advantage of it?
However, when judges saw the same small group of police officers that I saw every day in court- who typically added 50% to their salaries through court overtime- they had to know how suspect the credibility of these offices was. Judges knew the game that was being played, knew that the officers were more interested in making boat payments than in protecting society, but they usually went “along for the ride.” Better to not stick your neck out for justice. Somebody- like the powerful police union or the “if it bleeds, it leads” press of this Republican dominated city might cut it off. Focus on efficiency, not effectiveness. Let the Public Defenders and the other defense attorneys rant about that. If they say too much, take it out on their clients. They’ll get the message soon and “go along for the ride,” just like you learned.
- - -
When I looked into Enrique’s eyes, I saw fear of going to jail and of being sent home to his family without the money he went away to bring back. I was frustrated by the system, but I had to try to make it work for him. I couldn’t use him to fight my own political battles or to make my points. As frustrated as I was with the system, Enrique was stuck in it, at least momentarily. I was too. Like the song says, “despite all my rage, I am still just a rat in a cage.” I didn’t have boat payments to make and I didn’t get paid overtime. My suit was nice, a designer label. I bought it at the Salvation Army, but it was nice enough that nobody knew but me. I had essentially nothing, but I also had nothing to lose. As much as a I wanted to tear the system down, I also knew how it worked, and how to minimize the damage it did to my clients. Enrique was unique, a client who broke the law but did it only in the name of feeding his kids. His crime wasn’t taking something from someone else or hurting someone else, but in having documents with a fake name on them, so that he could go to work. He was technically a criminal, but he was only trying to feed his family. I couldn’t let the bureaucracy crush him beneath its wheels and then throw him back to where he came from. I was frustrated with the system I was stuck in, but he gave me something to fight for.
I told Enrique what I though would happen. I would set up a “cancel capias” hearing to get rid of the warrant that was now telling the police to arrest him. At that hearing, I assumed that the prosecutor would be too afraid to cut Enrique a decent “deal” since I knew that prosecutors were often disciplined by their boss for giving out good “deals” without good reasons. I assumed that I would have to push Enrique’s case to the brink of a jury trial, to get the prosecutor to give us the deal that would save Enrique from any possibility of deportation: dismiss the charge that carried a year in jail and have him plead to the lesser one- the one that could not get him deported- for a small fine.
I probably sound like a bad lawyer for considering a deal like this without first looking at the police report. I was religious about never pleading my clients guilty without thoroughly reviewing the police report. Doing so was not only malpractice, it was also sloppy and hackish, the kind of thing sleazy ambulance chasers did. While I would later review the report before I did anything with Enrique’s case, I also wouldn’t “play with fire.” If I had a chance to secure a plea bargain which dismissed Enrique’s deportable charge for a plea to the other one and an almost guaranteed fine, I would pounce on it. I knew the system was infallible and the stakes were too high for Enrique to demand a trial on the serious charge, when the wrong verdict would send him home, penniless, to those two babies. I clung to principles, but I was more worried about practicalities, especially when deportation was a possibility.
I said goodbye to Enrique at 12:30 p.m. and told him I would meet him in courtroom 28 in one hour to cancel his warrant. I knew this wouldn’t be a problem because while the judge in that courtroom was harsh for sentencing, and rarely followed plea agreements, I knew he would see the letter in the court file, stamped “return to sender” and know that Enrique had not been given proper notice of his hearing. This judge’s strict adherence to rules, his 1950’s belief system in radically-different reality- would work to Enrique’s advantage. We would never see this judge again, for trial or a plea (the sentence he might give Enrique was not worth the risk) but he wold give us what he wanted today: a chance to go home without a warrant and the ability to fight these charges another day.
But the courtroom was full, and the judge closed it to all new requests, like the one I turned in for Enrique. I had to go with “plan B.” My favorite judge was in another courtroom. I knew he was busy, that a trial had run into his lunch hour, but Enrique’s fate was worth going out on a limb for. I approached the judge, asked him if he would sign a form allowing Enrique to come before him, and saw the look that said, “you ought to know better than to ask for this today” as the judge reluctantly signed it. I found Enrique in courtroom 28, counted Spanish on my fingers to tell him “viente siete”, or 27, as he followed me into the new courtroom.
Enrique’s fate had now changed. I now had him before an extremely busy judge (who might be in a bad mood) but he was before a judge who would listen to me, whom I trusted with his fate. I now had the chance to send Enrique to his home in Omaha with a small fine and no chance that he would be forcibly returned to his real home in El Salvador. The chances were still slim that I could convince a prosecutor to give me what I wanted and what Enrique needed, since the timing wasn’t right for Enrique to be making any demands. I assumed we would have to use Enrique’s right to a jury trial, and the “inefficient use of time” that such a trial represented to the prosecutor’s office, to get what we wanted.
But I was wrong. The prosecutor who picked up the paperwork representing their case against Enrique was a good friend. She had dreams of escaping the office and was working on her Ph.D in English literature in her spare time. She was reasonable, fair, hard-working and smart. She knew how to separate the real criminals from the ones who were simply brought into court because they drove to work on a suspended driver’s license in the wrong part of the city. She was constantly in trouble with her boss for these things. He was a politician who tested the political winds every time he got up out of his chair. She was a prosecutor who judged case not by the political power of the victims but by the relative blameworthiness of the defendant, and whether a case was worth her time to pursue.
I asked her for the paperwork and reviewed the police report. It told me Enrique had been seen “prowling” in the day time near a high school under construction, very near my home, and that he was stopped for running a stop sign. Enrique told me earlier that he had been sent to a job site in an area of town he’d never been to before. He said he saw the construction and drove by it, looking for the man who, earlier that day, had given Enrique an address and had promised to pay him cash for his labor. The officer, after stopping Enrique, looked at his driver’s license. Everything was in order. The officer had then asked both men to exit the vehicle and searched it. Underneath the seat, he found a fake driver’s license, with Enrique’s picture on it, as well as a fake birth certificate. Enrique told me earlier that, desperate for work and for food, he bought these documents from a man. “The thing was,” Enrique told me through the translator, “I didn’t ever use them because I found work in my real name shortly after that.”
I had known there was a lot worth fighting for in Enrique’s case. Now I knew there were a lot of things I could fight against. The stop of Enrique’s car seemed suspicious. After all, the officer had gotten a call that Enrique was “acting suspicious.” How convenient that, upon contact, the suspect vehicle ran a stop sign. Enrique told me earlier that he met the officer at a four-way stop, and that the officer waved him through, before turning and stopping his car just up the street. Enrique would be a convincing witness, who would come off, as I had seen him, as an honest working man. I could file a motion to suppress the stop of Enrique’s car. Winning it would be difficult, since it would be the officer’s word against Enrique’s, but it might be worth a shot.
While winning a motion to suppress the stop of Enrique’s car would be difficult, winning one to suppress the search of the car seemed probable. Enrique’s car had been searched because he ran a stop sign, a charge that didn’t exactly give rise to the reasonable belief that the car contained bad things. I knew the only way the officer could justify this search was by telling the judge he was suspicious of Enrique because of what the radio dispatcher told him, that someone had reported Enrique as “acting suspiciously.” While the officer could act on such a tip, the prosecutors would have to find the original caller and bring him or her to court to justify this stop, assuming that the officer didn’t see enough, on his own, to justify the search. I knew this was the law in Nebraska, but also knew few prosecutors and only half the judges knew this. Like always, I would probably have to file an appeal to get the judge to follow the law.
As I reviewed Enrique’s police report, I considered these tactics for winning his case. But I had long ago, worn down by too many cases and too many bad judges, realized that winning in these courtrooms was not getting the judge to follow the law to your client’s benefit. In Douglas County, winning was getting what you wanted. While the “bad” stop and “bad” search issues I spotted in Enrique’s case were significant, and could be used like clubs if necessary, they were also useful tools to get the prosecutor to give us what we wanted now: to let Enrique go back to work without having to worry about catching the I.N.S. bus home.
I was prepared to explain these issues to the prosecutor, to tell her that I could make this case last a long time and probably even win it unless she worked with me and Enrique. While I got along with this prosecutor and she saw me a friend, she also knew that I could be a pain in the ass, when necessary.
But I didn’t need to be one. She was extremely busy and in a particularly good mood. Her bosses had been “off her back” lately because turnover in their office had forced them to leave their offices, where they normally stayed, and to make rare appearances in the courtrooms. Forced to walk in the her shoes, they were more forgiving of her perceived leniency. The time was right, she undoubtedly knew, for her to get rid of minor cases like Enrique’s, where real culpability was hard to find.
I started rambling on about Enrique, how much I liked him and how I could fight back. She gave me the “shut up” look. “Tell me what you want, Dave,” she said.
“Plead to the “possession of false documents. Dismiss the “false reporting. Small fine?” I asked. I knew this judge would follow the prosecutor’s recommendation and that this plea offer would mean no possible deportation.
“Okay,” she said, as she called out Enrique’s name. I didn’t even have a chance to explain this to Enrique, but I didn’t mind acting fast and accommodating this prosecutor who had given us what we came for.
Enrique looked at me wide-eyed as the judge called the case and the translator quickly tried to put this efficient-looking process into a language he understood. He looked in to my eyes, questioning silently, when the judge asked him how he pleaded. I nodded and he said the same thing almost all my clients said after a similar nod. “Guilty,” the translator told the judge.
Enrique still looked at me, questioning and worried. After all, just over an hour ago, I told him that being found guilty meant possible deportation. He trusted me, but he was understandably worried about what he had just done. I wished I would have had time to talk to Enrique, to explain what was going on. I knew, though, that this would end well and that my client’s were rewarded when I kept the system flowing in an efficient manner. I didn’t look like an effective advocate, standing beside a confused foreigner, nodding him into a guilty plea he didn’t understand. I knew, though, that he would be floored by the news, when I explained it afterwards in the hallway.
After the judge said he found Enrique guilty of the lesser charge, he asked me if I had anything to say for sentencing purposes. I knew I didn’t have to convince the judge to go along with the recommendation of a fine, but I also knew that saying the right thing might mean Enrique paid $25 instead of $250. I knew the difference would be tremendous for Enrique. After all, $225 bought a lot of food and clothes in El Salvador. That’s why he set out for America in the first place.
I kept it short, since the judge would appreciate this and since a few facts would do it. “Judge, he’s a working man. He did something I don’t know if I could do. He kissed two little babies, and one wife goodbye in El Salvador, found his way here and looked for a job, to take care of those two little babies. He got some fake documents in case he couldn’t find work, but he didn’t even need them. They found them under the seat of the car, after he showed them his real, valid driver’s license. He was just trying to work.”
I knew the judge was a grandfather, that, like Enrique, he was willing to work hard for his family. I just pointed out things that this Italian, seventy-year old ex-cop had in common with my El Salvadoran, twenty-five year old client, in an efficient manner.
“I order you to pay a fine of $25,” the judge said, giving me a slight smile.
Enrique and I moved to toward the bailiff, where he would be given a slip of paper reminding him to pay $25 plus the $41.50 in court costs by the date written on the bottom of the paper. He looked stunned. I knew the interpreter had other cases to get to, but I had to make sure he understood what else we accomplished.
“Can you tell him there’s no way he’s going to be deported for this, too?” I asked the interpreter. She was originally from Mexico and it seemed like she became more than just a translator when she told Enrique what I asked her to say. Her job normally required her to translate words verbatim, without putting feeling behind them. But she smiled along with me as she repeated my words to Enrique. Enrique looked even more stunned, as if he didn’t know what to do or where to go. I called him out in the hallway, where I normally “translated’ for my English-speaking clients, what the judge had just done to them and what this meant for them in the future.
I spoke a little Spanish, just enough to get me in trouble, but I was pretty sure I could explain Enrique’s fate to him, at least the fate that faced him today. “Viente cinco,” I said. (“Viente” was fresh in my mind from having to tell Enrique what courtroom to be in, and I counted to five, silently in Spanish, on my fingers before I told him.
“Viente cinco y forty one fifty,” I said, writing it on a file folder. I forgot how to say forty and didn’t want to confuse him in bad Spanish, when numbers worked almost universally.
“Viente cinco dolares y quarenta uno dolares y cienta centados?” Enrique asked, pointing at the numbers I had written. Then his face tightened, as if disbelief. “Es todo?” He asked.
“Es todo!” I told him, remembering this obvious phrase from Spanish class eight years ago. I remembered another easy one I knew he’d understand. “No mas!” I acted this one out, using another universal symbol. I spread my arms to make the “safe” sign an umpire uses.
Enrique then did something that made me sad- not towards him but towards the country I was born in and called home. He reached in his pocket and took out his wallet, speaking to me in English for the first time. I still didn’t think he spoke anymore English than I spoke Spanish. He just thought the universal language in America was money. Perhaps he was right. After all, he’d paid cash for the bus ticket across his country, probably paid the “coyotes’ in cash to smuggle him across the border. The construction bosses who hired him off the same street corner every morning covered their tracks and helped their own companies’ bottom lines, but paying Enrique in cash. Enrique was simply doing what he thought the golden rule in America was: money talks.
I could have used it, but defending Enrique had made me feel rich. I complained about student loans and low public defender salaries, but I kissed my own kids goodnight every day of the week. I held up my hands for stop, like a traffic cop does, and shook my head from side to side, using two more universal symbols that rarely need translation.
I walked away, saying “gracias” and “no problem” as Enrique still stood there in shock, his wallet in his hand. “Send that money home, to those babies!” I said.
I don’t know if he understood me. Something told he did. Fittingly, it’s Father’s Day as I write this story. My own babies are calling me upstairs as I type in the basement. They made homemade cards. After reliving what happened to Enrique this morning and considering what the many governmental bureaucracies might have done to him, I feel very rich and very lucky.
My children understand that I have to leave them every day, to get money for the house an dth food. But kids typically understand this only when you explain it using physical objects. If you don’t show them what rewards work give s them, it seems absurd to them.
What must Enrique’s children think this father’s day? They haven’t seen him in months, maybe even years, but, like me, he goes to work for them every day that the man shows up at the street corner he’s learned to stand on. Do his kids understand that sacrifice, when they open up the envelopes he sends them, twice a month? Is he having a happy father’s day, like I am, or do they think of their dad as only the letters on the page, the way children focus on what’s before them in deciding what is important.
Will they understand that Enrique’s absence- from their bedsides every night and for years of their lives- is for them? Will these babies ever realize that what Enrique did is what all fathers probably aspire to but that few carry out?
Happy father’s day, Enrique. Maybe someday your children will understand what you went through, when they have children of their own.


When I look back on my years as a misdemeanor public defender, Teresa’s case seems to sum in all up. She taught me how much people can accomplish and how far they can fall. She taught me to have faith and reminded me to remain skeptical. She was one of the most inspiring clients I ever represented and also one of the most depressing. She gave me hope to never giving up on people and taught me to expect the worst. Above all, she taught me that people can change with help and that even with help this change doesn’t always last.
Before I met Teresa at the jail, I read the reports describing the State’s case against her. I saw that she was charged with driving under the influence of drugs, which allegedly occurred the day she was picked up. I also read that she was facing charges for approximately twenty purse-snatching incidents over a two-month period. Each count carried up to six months in jail and each purse carried someone else’s identity, meaning that there would be twenty victims in the courtroom, crying out for justice and jail. Before I met her, I knew Teresa wasn’t going anywhere for awhile and that I had my work cut out for me to perform damage control.
When I first saw Teresa, she was laying on the floor of the jail interview room surrounded by several guards, screaming like a frightened child. I could see that she was disoriented but also could see that the guards were not beating or hurting her. One was laughing, as if he thought she was putting on an act, but the other two were helping, asking her if she was alright and telling her that she had been brought here to see her attorney.
When I walked into the room, she saw me and calmed down slightly, as if she now believed what the guards were telling her. She caught her breath and they helped her into a chair, leaving us alone to talk. When I told her my name, she repeated it several times, as if she were trying to burn it into her memory. I continued talking to her in a soft voice, the way I talked to my daughter when she woke up from a nightmare. Teresa looked at me in her addicted, drug-deprived state as if I might be her savior but I felt a little like a false prophet. To calm her down I told her it would be alright and that I was here to help, but I knew she was facing twenty separate theft charges, armed with an over-worked lawyer, three months past the bar exam.
A big part of my job was delivering bad news, but today was not the day to do it. Today, when she was coming down from the drugs, I told her everything was fine. Later, after she made it through this first ordeal and came to her senses, I would tell her the truth about what she was likely facing. Telling her the truth today felt like watching a person starve while holding bread in your hand. All Teresa needed today was something to get her through the week, a promise to hang onto until I saw her next week, when I promised to visit her again and when the drug cravings started to wear off. I cut our interview short with this promise since I knew she was in no shape to talk about anything complex. As I walked out of the room, past the guard who was walking in, Teresa repeated “next Tuesday” as if repeating it gave her hope, as if an appointment next week meant she would survive this one.
The next week, I saw a different Teresa. She was still in the oversized, drab orange jumpsuit that would make a supermodel look bad. The terrified expression on her face was gone though. She looked calm and alert, but still scrawny and weak. She moved slowly, as if in pain, but patiently answered my questions like she had nothing to hide. I asked about her background, telling her that I needed to know a little about who she was before I heard about what she did to bring her here.
As Teresa told me about her life, she seemed like a skilled, experienced liar. She told me she had a college degree, a nurse‘s license, and a heroin habit. She was about forty and her dry, blond, dark-rooted hair was matted on one side, telling me she had just pulled her head off of the cot and hadn’t made it to the beauty shop in a month or so. Her skin was sickly white and her blue eyes were sunken and vacant, as if she was missing a substance that made her feel good and look terrible.
When I told her she was charged with driving under the influence of methamphetamine, she seemed puzzled. She told me she didn’t use meth, only heroine. She told me she and “Mickey” only did “H.” She looked at my tie and explained that by “H” she meant heroin, in case I didn’t know. She said went on to tell me that she used heroin the day she was picked up, but never “crank” or methamphetamine. I told her that her urine tested positive for it, but she still insisted that she only used heroin. She showed me the track Mikes on her arm, as if this proved her point, but I knew meth users shot it in their veins as well. This didn’t make her story sound convincing, in other words. I wasn’t too worried about this anyway. We had many other, more important things to worry about besides which drug made her drive erratically and fail the field sobriety tests. I couldn’t exactly “win” her driving under the influence of drugs case by claiming that the prosecution picked the wrong drug.
When I asked her about the more worrisome problem, the twenty purse snatchings, she told me all about Mickey and that her name had changed since she married Mickey about a week before she was arrested. My file had the name “Teresa Murphy West” typed across the top, but she told me her new last name was “Maldonado,” as if this were very important. She went on to tell me about moving to Omaha with Mickey, about using drugs with him and about stealing the purses to buy more drugs. She told me Mickey would go into the grocery store first and would pretend to be shopping by himself. When he found a woman shopping alone, with a purse in her grocery cart, he would play the dumb bachelor trying to make a meal and ask her a basic question about how to cook a certain item. When the now distracted woman spoke to Mickey, Teresa would come up from behind and grab the purse.
As Teresa told me this, I remembered hearing about the wave of similar purse snatchings on the news. I hadn’t paid much attention to the story, but I remembered a report about a blonde white woman and an Hispanic male who worked together and always played the same trick. The only problem for Teresa was that every grocery store had security cameras and every local news station ran her video as its lead story in the weeks before her arrest. As if that weren’t enough, there was also the problem of the police finding roughly half of the missing purses in the van Teresa was picked up in.
Looking at skinny, blond, desperate-looking addict in front of me, I knew I couldn’t convince anyone that she was framed or that the police had the wrong woman. I knew that I couldn’t win Teresa’s case through a trial, especially since she was charged with offenses that did not entitle her to a jury of her peers. I knew that since we were stuck with a judge or bench trial only that the real work- and the only way to “win” for Teresa- was to minimize how much time she would spend in jail or on probation after she jail. I knew I couldn’t stop the prosecution from proving what Teresa had done. I knew the best thing to focus on, in a case like this, was on what Teresa could do to show the judge that she had a desire to reform herself and get back to the relatively normal life she had before the drugs pulled her down into a darker world. It was too late to change the past, but perhaps if I helped Teresa act in the present, we could both try to minimize the potential damage to her future.
Since Teresa was also facing a felony drug charge and was unable to afford her bond in either case, there were two ways to proceed. On the one hand, she could schedule a plea of no contest in the near future and I could tell the County Court judge that she had “bigger fish to fry” in District Court on the felony. This might convince the judge that he or she did not need to impose a harsh sentence because, after all, Teresa was facing more serious charges and was unlikely to be going home soon anyway. Of course, this strategy also risked the judge imposing a harsh sentence, thinking that if she wasn’t going home for awhile anyway, a long sentence would it wouldn’t matter and would look a lot better in the paper to suburban “tough on crime” voters.
On the other hand, Teresa could stay in jail on this charge and let the “heat” caused by the press coverage die down a little bit. I told her to do this since I was afraid of what a judge would do to her if we came into court now, when the case was fresh in the minds of the prosecutors, the victims and the judge. The waiting would not hurt Teresa in any way since she was also being held on other, more serious charges felony narcotics possession charges. She was not going anywhere, in other words, and I knew that Teresa’s face- which would tell a judge a lot about her future prospects and her possible success on probation- would look a lot better in about sixty days. She could begin taking attending Alcoholics pr Narcotics Anonymous classes in jail right now (and promise to continue them on the outside) to prove her seriousness and commitment to the judge.
Teresa took my advice and waited it out. About two months later I visited her in jail and she looked even better, the way she must have looked before the drugs took hold. The color was returning to her face and the grim, desperate expression was fading away. Smiles and laughter came more easily to her face, but the repeated questions about Mickey were still there. Had I heard anything about his case? Could I call his lawyer and give him a message? Could he call me and ask me questions? I told her there was a “conflict” between Mickey’s case and hers and that the reason Mickey now had a private attorney appointed was that it wasn’t proper for me tp be talking directly to Mickey, since he already had a lawyer and I couldn’t look out for both his and her interests. She looked at me puzzled, as if it were an insult to hear that there was a difference between what might be good for her and what might be good for her newly-acquired husband. I knew a little about Mickey since I reviewed his record. By looking at the dates, I saw that while Teresa was attending college, working and starting a family, Mickey was repeatedly going in and out of jail. He wasn’t a killer, but he appeared to have always been in trouble. Jail, and probably needles, were a constant in his life while these two things seemed relatively new in Teresa’s.
Part of me wanted to grab her with both hands by the jumpsuit and tell her she was crazy to stay with a scumbag like that, that she looked better now that she was away from him and the needles he offered her, that she had a good life before she was dragged down to his level by needles and videocameras. But I didn’t. I knew she was in love and that love was often blind. My job was hard enough without becoming a personal coach. As frustrating as it was to hear a once successful college graduate pine for a known, convicted drug dealer, I knew telling a person to not be in love was like telling an addict to not want a drug. It would be more productive to pound your head against a hard object. Maybe absence, in Teresa’s case, would make the heart grow less fond and maybe as Teresa’s mind cleared she would begin to see what was obvious from the outside. She married a three-time felon at a period in her life when she thought snatching purses was a way to make her life better. Maybe she would wake up to the stupidity of both decisions, and maybe she wouldn’t. I hoped she would clean up and wise up, but I had plenty of other people and cases to worry about. Teresa stood out among my clients because of the fact that she had at one time possessed a lot of the things my middle class, white world held so dear: a job, a college degree, kids and a house in the suburbs. I fought for Teresa, hoping that perhaps she could get back there someday, but I also knew that while she had once been blessed, Teresa had also injected away the gifts and privileges that my poorer clients dreamed of. I would fight to give her a fair chance to get these things back, but I couldn’t waste my time trying to change her mind. Like all my clients, I would fight to give them an opportunity, tell them to act on it, and leave the rest up to them. Three thousand cases taught me that it was essential to lead my horses to water and also impossible to make them drink it. I fought to give people opportunities to improve. They usually pissed them away. Sometimes they didn’t, though, and that kept me going. Maybe Teresa would be one of the few clients to pull herself up an away or one of the many who kept coming back to see me at the Public Defenders Office throughout their lives. Time would tell.
I spoke with Kelly, the attorney in our office who represented Teresa on her felony, one day in the hallway. She motioned me into her office and asked me what was going on with Teresa’s many misdemeanor cases. I told her the trial was coming up and that while Teresa looked better, the sheer number of charges she faced made her prognosis probably bad and difficult to estimate. Kelly told me she thought the judge who was assigned Teresa’s felony was considering reducing Teresa’s bond to around a thousand dollars given Teresa’s relatively clean past record and recent “cleaned up” look. If Teresa sought treatment, Kelly told me, she might be able to get probation on her felony. The misdemeanors, with the many victims and multiple videotapes, were her biggest obstacle at this point. If I could get a judge to give Teresa a chance on probation on the misdemeanor charges, she might be out of jail and on with her life in just a few weeks.
“What I can’t figure out,” I told Kelly, “is why a lady like that gets involved with a guy like Mickey.”
“I know,” she said, “but have you heard about the diamonds?” Kelly went on to tell me that while Teresa and Mickey were in a lot of trouble in Nebraska, they were also facing felony theft charges across the river in Council Bluffs, Iowa. Those cases probably wouldn’t go far though, she said, because the amount of the thefts wasn’t very high and the Iowa prosecutors were under the impression that Mickey and Teresa both had “bigger fish to fry” in Nebraska. This was true, of course, but it was also typical. When a person faced charges in three separate places, it was possible to minimize the damage and jail time the client faced because each separate bureaucracy would likely assume that a different one would do the real work.
Most judges and prosecutors, however honorable they were individually, enjoyed going home at five, or even three. If you gave them a reason to avoid work, they would jump on it. I knew that when I told the County Judge that Teresa faced felony charges in two states, the Judge would likely want to be done with her. What I wouldn’t tell them, of course, was that these felony charges were nearly over and that the biggest fish Teresa had to “fry” was the misdemeanor charges she faced with me. I wasn’t serving justice, I was doing what the Ethical Code told me to do, looking out for the best interests of my clients. Government is inherently lazy, in most instances, and I was taking advantage of this to help my client. While news of a new felony in another state seemed like bad news for my client, I knew we could both take advantage of a “quick fix” bureaucracy and use this to Teresa’s advantage.
I wasn’t ashamed of this type of behavior either. I justified it because I truly believed that it leveled the playing field my client was placed on. Prosecutors, who thought of themselves as the “good guys” in the white hats, were constantly willing and able to do bad things in that capacity. Whether it involved going along for the ride with certain cops who routinely “testi-lied” or tacking on unsupported charges to encourage plea bargaining, prosecutors did a lot of bad things in the name of doing good. I was aware that the public looked at my shackled, orange jumpsuit clad client as the devil they saw on the six o’clock news- with its “if it bleeds it leads,” ratings-driven format. I was also aware that the public looked at the public defender who stood by this scumbag (and in so doing, defended the individual rights that defined us as a nation) as on the same low level.
However, I was also keenly award of something the public did not know. I was reminded of this truth every day, and the truth is that the devil, while very real, also most often appears, not in an orange jumpsuit, but dressed in drag. The real, dangerous devil is not the melodramatic looking villain in the black hat or the orange jumpsuit, but the double-breasted (or black robed) charmer who is willing to do the most terrible things in the name of doing good. Just as the crusaders raped and killed in the name of God, thinking their “noble” cause gave them license to sin, some prosecutors, and some judges, were willing to trample on the Constitution they swore to uphold, if it meant going home early. “Well, he’s guilty of something” I heard one rationalize as he offered my client a plea deal, after having threatened a long jail recommendation if I dared to push my client to exercise his sacred right to a trial. These prosecutors believed not in the presumption of innocence or in the inherent infallibility of a bureaucratic justice system, but instead echoed what former Attorney General Edwin Meese once said: “rarely are suspects innocent.”
I was being sneaky, yes, by telling the judge that Teresa had “bigger fish to fry” with her felonies when I knew these cases were truly almost over. I wouldn’t lie and, if pressed, I would tell the truth about what I had been told about the probable outcomes of these cases. I twisted things this way because I felt, genuinely, that this sneakiness was “the manipulation that an inherently manipulative system produced,” to paraphrase Malcolm X. If I stood by and spoke the whole truth while the prosecutors twisted it to their advantage routinely, I was not being a good advocate and would be laughed at like a boy scout in a strip club. I knew the judge wouldn’t press me either. As long as I gave this politically-motivated, nine-to-three judge something to hang his or her hat on (so that a lenient sentence could be justified later if it his the papers) Teresa would come out o.k. The real trick was to minimize the potential political damage to the judge, minimize his or her work load, and smile all the while, as if the emperor were fully clothed. I knew how to play the game and loved to play it hard, like a jungle rat helping my client through territory that I was familiar with but that they would easily get lost in.
Back to the diamonds. Kelly told me, without telling me where she heard it, that there was a rumor that Teresa and Mickey had hidden a bunch of diamonds somewhere in Iowa. The idea was, she said, for them to serve out their jail time on the “small” thefts and then live out the rest of their lives “on the rocks,” so to speak. “Kind of like a modern day Bonnie and Clyde” I said, while Kelly and I laughed. I had to admit I was a little envious. One of my worst clients was rumored to have created a nest egg, while I still had $60,000 in student loans, $25,000 in credit card debt, and a car made during the Reagan administration. Maybe crime did pay, I wondered, though I also wondered how well two heroine addicts, who hadn’t considered the existence of video cameras, could plan a diamond heist and stash to live out their lives on. In my experience, drug addiction, in its early days, produced many grandiose plans for living on the beach and, in its later stages, usually resulted in a reality of living in a cell. I envied Teresa’s possible future, as I thought of how hard my own wife worked and how little time she got to see her kids, but I also doubted whether the diamonds were anything more than a drug-induced dream. I had plenty of other cases and no time to be envious of my clients who were in jail. Maybe Teresa would live her life out the way Tim Robbins’ character did in The Shawshank Redemption, but I doubted that this Hollywood ending would occur in real life.
I arranged an early plea hearing for Teresa, in front of one of my favorite (most lenient) judges. I stressed that Teresa had “bigger fish to fry” on her felonies, but also pointed out that she might be released soon. I did this because I knew that if I made Teresa’s future sound too bad, this judge would think that a year-long, concurrent sentence, which would be the most politically safe one, wouldn’t be “no big deal” for such a hardened criminal who was likely going “up th eriver’ for a long time. I knew Teresa’s hand could be overplayed, in other words.
The prosecutors were insistent upon making sure that the victims of the purse snatchings were taken care of. Reasonably, the prosecutor wanted to make sure that all personal and sentimental property was moved from evidence back to the rightful owners. I respected that, knowing how important the picture of my daughters that I held in my wallet was to me. The prosecutors, not surprisingly, were not opposed to Teresa being sentenced to probation. I had done them a tremendous favor by not requiring them to bring thirty witnesses into court for a trial, and probation would be a good way for Teresa to raise the money to reimburse the victims for any money that was lost. None of us really believed that Teresa was going to be able to raise thousands of dollars in the next two years, but the judge required it, since it was only fair that if Teresa could afford it, she pay the people back for what she had taken. Requiring these payments was also the politically safe thing to do, since the judge considered, as they always do, how she could spin this sentence if it became the lead story on the six o’clock news. “I put her on probation,” the justification would go, “but I did it to ensure compensation for the victims.” The early plea was good behavior by me as far as the judge was concerned, and Teresa was getting the reward for this, with a condition attached so the judge could justify this in the future if need be. After all, the judge mad six figures for less than fort hours of work a week. As a judge in Nebraska, you were virtually always elected, since the ballots had only a “retain” or “not retain” choice, as long as you stayed out of the headlines for anything else but being “tough on crime.” Since Teresa’s case was no longer the “lead story” it was politically safe and also efficient for eh judge and the prosecutor to let Teresa out. To their credit, the judge and the prosecutor also listened to me as I described the difference between the Teresa who stood before them today and the one I had first seen on the floor of the jail, screaming and coming down off heroine.
The judge was not altogether lenient, however. While Teresa was sentenced to probation, she had to wait in jail for thirty more days. While I didn’t want this for Teresa, I thought it was a good message to send. These were serious crimes and while the judge was impressed with how well Teresa had done in jail, she was telling Teresa how unafraid she was to put her back there if she didn’t take the probation seriously.
Teresa was thrilled. She now had an “out date” to focus on and knew what she had to do to avoid going back to jail. I saw a changed person, but when she asked about Mickey once again, I suspected that she could slip back to her old self fairly easily.
Next, I did something for Teresa that I rarely did for clients. I prided myself on working hard for them but also drew a bright line between my work and my home. My clients were often desperate and sometimes dangerous. As hard as I tried, my clients were usually found guilty and they most often truly were, as much as I hated to admit that the “rarely are suspects innocent” phrase was actually true. I hated a system that believed this, but I had to admit it was true. Even if my clients were often innocent of all the crimes they were charged with, they were usually guilty of something. I longed for the truly innocent client, but rarely found him or her. What killed me were the few truly innocent clients that I couldn’t save inside a system that believed they were “probably guilty of something.” I had to fight off cynicism myself amid a parade of horribles, where an occasional innocent was paraded in alongside the assholes and addicts.
While my clients were often guilty, my two small daughters were truly innocent. I felt guilty about the debts I had acquired and the low pay I brought home in a job that I had grown addicted to. The least I could do for them, and for my wife, was to make sure that my chosen career didn’t creep into their innocent world. I kept an unlisted number, kept only small family pictures at work and never discussed my kids.
Because I believed in Teresa and felt badly about what a shame it was that she had fallen so low, I asked a family friend to talk to her. My wife had a good friend, Marnie, who was a recovering alcoholic / addict whose life was now coming together completely. I knew that as a part of Marnie’s recovery, she now drove her new car to the jail once a week to conduct a meeting of Alcoholics Anonymous for females only. “Marnie” invited our family to celebrate her five year sobriety “birthday” and at the party I pulled her off to the side. I told her about Teresa, how Teresa once had it all and pissed it away as an addict. I asked Marnie if she’d talk to Teresa and to tell her that her life didn’t have to go back to the way it was with heroine. It seemed like such a shame and a waste of a life to just let her go out without any help. Since I knew Marnie’s words would mean a lot to Teresa and that, as a recovering addict, Marnie would know how to talk to Teresa in a way that a non-addicted person could never grasp, I asked for her help. I couldn’t keep Teresa from going back to using, but maybe I could give her a tool, or a person to talk to, in case she decided to reach out for some help. Marnie nodded and said she’d talk to Teresa, but only if Teresa came to a meeting. Marniee knew, as I suspected, that the first steps would have to be Teresa’s or she would be wasting her time.
The next time I talked to Teresa, I told her my friend would talk to her if she came to a meeting. The next time I talked to Marnie, which was about a month after Teresa was released from jail, she told me Teresa came to the meeting in jail, had gone to a meeting nearly every day with Marnie since she got out, and that she was now Teresa’s “sponsor.” I knew “sponsorship” was a voluntary system in Alcoholics Anonymous where a person with several years of sobriety advises a “newcomer” about things they need to do to stay sober. Since it is voluntary, it can end by either party at any time, but since the only requirement for being a member of A.A. is a sincere desire to stop drinking or using, if it ends it’s almost over anyway. Alcoholics describe alcoholism and addiction as a “cunning and baffling” disease, and sponsorship not only helps the “newcomer” stay sober, it also helps the more seasoned alcoholic or addict remember how messed up they were when they came it and how important it is to stay sober.
Teresa stayed sober. Six months later she came into see me. I hardly knew her. She looked unbelievably healthy and clean. I knew Teresa had Hepatitis C and that her health was always questionable because of this, but she still looked great. Just seeing her almost brought me to tears. I couldn’t believe the difference a few months could make. She smiled even more easily now and thanked me for what I did. She talked proudly about Mickey and said he was going to be getting out of jail soon. “He’s going to be in the program too, with me,” she said.
Just then Kelly, Teresa’s felony attorney walked by. “Teresa?” she said. “Oh my God, is that really you?” Kelly was a tough-minded p.d., but she also had a soft side and an incredible amount of empathy. I saw that Kelly was tearing up as I had, upon seeing Teresa, and I remember that moment as one of the great, rare ones that only Public Defenders get to see and live for. Kelly and I saw Teresa when she was at her “bottom” and now we saw her on the rise. Our jobs required us to see horrible things constantly and now we got to see that one of these horrible things cleaned up well and changed from looking like a corpse to looking like a colleague. We were overwhelmed to have participated in this transformation. Instead of being called names and blamed by our clients for their transgressions, we were able to hear a rare “thank you” and see its sincerity as well as the effects of our labors. Suddenly, all those student loans, all the hand sanitizer, all the ill treatment by clients, judges and prosecutors seemed worth it. My classmates were driving new cars and rising up their firm’s ladders, but I was making a difference, even if it was for only one person out of a few thousand. “I helped saved one,” I felt like saying to anyone and everyone, as Teresa walked away.
I filed Teresa away in my mind, as a success story, and it sustained me for months. I looked for more Teresa’s amongst my clients and thought of my role as both helping my clients fight for their innocence and also fighting to give them the tools they needed to stop using or drinking, if they asked for the help. I didn’t care that they called me “public pretender” or asked if they should get a “lawyer,” even though they already had one. I wasn’t so envious of the private attorneys, even the ones who knew the law only half as well as I did and yet who made four times the money. It didn’t matter so much. If my most addicted, sickly looking client could change, who couldn’t? I knew that most wouldn’t, but now it was worth trying in every case. Maybe there was someone else out there who just needed the right tools to go from dirty and drugged to clean and sober.
I thought things must be going well for Teresa, until I read the paper one night after work. It told how Teresa was involved in a drunk driving accident, and that a sixteen year old girl had been killed. Teresa wasn’t drunk, and was still staying sober, but she wasn’t altogether innocent either, unlike the sixteen year old daughter of Mickey who was killed. Mickey was there too, but he should have been somewhere else at the time. Mickey was supposed to have been on his way back to jail, from the “work release program” but he broke the rules and left work early, instead going Christmas shopping, and meeting Teresa and several of his kids at the mall. As Teresa, Mickey and two of the kids followed a car driven by Mickey’s sixteen-year-old daughter as she drove home, a drunk driver crossed the center line, struck the young girl’s car head on and killed her instantly.
Once again, Teresa and Ricky’s names were in the headlines. This time, however, they were both described, accurately, as victims of victims rather than perpetrators. Since almost a year had passed since Teresa and Ricky’s names were associated with theft, and since the newspaper needed to place either black and white “hats” on the people involved in this tragic incident to make it simple enough for the headline-reading, scandal driven public to understand, the newspapers never mentioned Ricky or Teresa’s recently checkered past history. No mention was even made in the paper of the fact that Ricky had essentially escaped from jail that night and gone Christmas shopping when he was supposed to have gone straight from work to jail.
Perhaps this omission was done out of respect for Ricky and Teresa’s loss. After all, Teresa had done well since her release and it was easy to sympathize with a family who broke the rules to go Christmas shopping together, especially when a one of their lives had been snatched tragically on the way home. I found out about Ricky’s “escape” after I told Kelly that I didn’t know he had been released from jail and she told me he wasn’t supposed to have been out at all. A check of our computer system, which told us who was in jail and when they were supposed to get out, told me that Ricky was “confined” in the work release center and not due to be released for months.
The next time I saw Teresa was several months later. She met me in my office in anticipation of her “show cause” hearing. This hearing date gave Teresa, and to a certain extent me, a chance to show the judge why Teresa should not begin serving ninety days in jail.
Teresa looked terrible. Her skin was pale again and the her eyes were again taking on a vacant look. I wondered if the pressure of watching a loved one die, and of being away from her new husband during this tough time, had not led her back to her old ways and her old drugs. Yet her clothes were still clean and she kept the appointment she had called to schedule with me, unlike most true users who typically showed up for court in orange jumpsuits after being found on the street.
I asked Teresa how she was doing and she told me that it had been “tough.” I told her that I wa sure it had been, that she had undoubtedly been through a lot of challenges as well as temptations. I asked her the one question the judge would care about: had she stayed sober so far? Teresa nodded her head. I had long ago learned to believe only the testing data submitted by the probation office to answer this question, knowing that lying and using go together. But something about Teresa’s look, even though it was unhealthy, made me believe her. I pressed her further. “You don’t look so good. Are you doing okay?”
“It’s my liver again,” she said. “I need to go see the doctor again.” I remembered the Hepatitis C and the needle usage that were described in the police report. I told Teresa she needed to get back to the doctor quickly, to make sure the judge didn’t do what I did and confuse sickness symptoms with drugs. I didn’t preach to her, though. How easy it would have been to do so, but how hard how hard had Teresa’s life been lately. Instead of preaching, I told her to do the one thing that would convince the judge to give her another chance.
“You need to get in and do a drug test, so the judge knows for sure you’re staying sober,” I told her. I knew a clean test would back up my future claim that the pale skin was from health problems and not heroin. Teresa nodded her head.
“I went down to Lincoln and talked about what happened to Nicki,” Teresa said. I remembered that this was Ricky’s daughter’s name, the one killed in the accident. I also remembered that, after the accident, a state senator capitalized on the headlines and the public outrage over the crash. He proposed a toughening of the drunk driving penalties and cited the tragic case as an example of the need for his new idea to send drunk drivers to jail instead of giving them a chance at rehabilitation and treatment.
“Who did you go talk to?” I asked.
“The whole chamber, or whatever, everybody who was voting on the law,” Teresa told me. I knew this meant the State Senator had summoned Teresa to give testimony before the legislature, asking her to tell them about what it was like to watch your stepdaughter die because of a drunk driver. I wondered if any of the obviously emotionally-touched would have voted for the new , tougher penalities (which passed by a huge majority) had they known that the eyewitness who described the tragedy for them was a recovering heroin addict, with a recent drunk driving conviction, who was herself the poster child for the potential of rehabilitation programs to help drug abuser get the chemical dependency help they truly needed.
As ironic as it was to hear about Teresa’s role as a “Mad Mother,” against drunk driving, it was my job to defend Teresa, and to keep her out of jail, so she could continue with the treatment-centered sentence that was seemingly working well for her. I knew that after I showed the judge Teresa’s (hopefully) clean drug test and told her about Teresa being called before the legislature to tell about how much tragedy comes from drunk driving, that Teresa would get another chance to continue on her seemingly-successful, rehabilitative probation.
After Teresa showed up for court with a clean drug test, and a description of the doctor’s plan to control the Hepatitis, the judge looked relieved. After I told the judge about Teresa’s family tragedy, and subsequent testimony before the legislature, the normally reserved, stoic judge’s jaw dropped. Whatever Teresa was doing, the clean drug test showed it was working and, after all, if the legislature was willing to listen to Teresa, the judge was not going to jail her. The judge “vacated” or eliminated the ninety day jail sentence from Teresa’s probation, meaning that she would simply have to stay out of trouble, and stay sober, throughout the remaining months of her probation to stay out of jail, at least on this case.
Teresa called me one day several months later and asked for my help. She told me she moved into a “halfway house” and met a friend there who needed help canceling an arrest warrant that was hanging over his head. I knew about this halfway house and knew it was a good place for people who were struggling with addiction to live while they transitioned back to life “on the outside,” away from drugs. I was glad to hear that Teresa was staying there since I knew, from talking to clients, that the only real way for real addicts to stay sober was for them to want it and for them to have a chance to talk to other addicts who were of like mind. I even knew a woman who was currently staying at this “New Creations” halfway house. I asked Teresa if she knew this person, found out that she stayed just down the hall from Teresa, and told Teresa to tell her I said “keep it up.” She told me Mickey was trying to live there too, but that for right now it was just her. She didn’t give me a lot of details but I knew Mickey was still in the picture, and evidently doing well “outside the box.”
Teresa and the friend who needed help met me in the office and I helped the man take care of the warrant. Teresa still looked sickly but I didn’t even have to ask if she was staying sober. After all, she was helping another human being with his problems. That told me she was staying sober since I had never met an addict who, without treatment and sobriety, really cared about anyone but himself or his supplier. The fact that Teresa was there for someone else told me she was taking care of herself and on her way back to the land of the living. Teresa told me her probation was over, that the probation officer terminated it early since she was doing well and had so many health and family problems to deal with.
I was happy for Teresa, knowing that no more probation meant no possibility of going back to jail on these charges, but I wondered about letting a still shaky addict, who had checked herself into a halfway house, go it alone without the threat of jail as a motivator. By this time, though, Teresa had over a year of sobriety and a support system in place. She had been before the legislature, for God’s sake, and had seen firsthand the pain that stupid, drug induced behavior could cause to innocent families. Teresa had been through so much, that maybe the probation officer was right to cut her loose. I believed in Teresa, after all, so why would I second guess a probation officer who obviously believed in her too.
I have not seen Teresa since that day. I heard nothing from her for over a year. As I watched countless other clients get probation, blow it by getting new charges or using drugs again, Teresa stayed silent. She didn’t call and I didn’t get any new files with her name at the top. She must have been doing well, unlike a lot of my clients, it seemed. She was a rare success story and she had pulled herself up off of the floor of the jail and back into her former life, clean and sober, helping addicts instead of supplying them. Carrying a purse instead of snatching them. Telling the legislature dangerous drunk driving is instead of shooting up and hitting the road herself.
I thought about Teresa when I saw hard core addicts and one day I even used her as an example to a judge who was considering whether to give a third offense drunk driver a chance at probation or a long time in jail. “Judge, this man is not the same man I met in the jail, shortly after his arrest” I said. “He is different; he isn’t blaming other people anymore, he truly wants to stay sober,” I went on. After I told the judge all about this guy, and how I truly believed in his chances on probation, I talked about Teresa.
“Judge, I don’t’ know if he’ll make it on probation and either do you, to be frank. Only he knows that. All I know is that one of my most hard-core drug using clients went from lying on the jail floor to testifying on the floor of the legislature after a judge gave her a chance at treatment and probation. If she can do it, he can too. All he is asking for is a chance to prove himself, just like she got.” I told the judge Teresa’s story and he gave the man probation. On the way out I told the man, “I went out of a limb for you, don’t let me down or the next time he’s not going to believe me, or you.”
I could not have blamed this judge if he would have rolled his eyes when I rambled on about recovery and redemption. After all, Teresa stood out as one of the few success stories I could point to amid what seemed like thousands who kept using and kept getting in trouble, no matter how many tools and chances were laid on the table in front of them. Sure there were a lot fo success story clients I could point to, but Teresa truly stood out as a seriously addicted client who turned her life around. Teresa’s case truly motivated me and I worked hard to give other people the same chances she received, thinking that everyone deserved a chance to make the same turnaround that she accomplished.
At first, I didn’t believe she could make it, but she proved me wrong. If I was wrong in her case, couldn’t I be wrong whenever I guessed that someone else was “too far down” to climb back up? If I was wrong about Teresa’s chances, shouldn’t I fight not just for the people I thought could make it but instead fight for equal opportunities, as our nation claimed to provide for everyone?
I thought so, and Teresa’s story kept me going, against the odds and the examples of blown chances that I saw every day. I watched judges, prosecutors and public defenders grow more cynical as time went on, but I tried to fight this off, using Teresa- and a few others- as examples to hold up against the thousands of failures who kept coming back to see us in criminal court.
Since I heard nothing further from Teresa, I assumed the best. While other clients came back to see me, assuming that I could help them get out of trouble and out of jail again, like I did the last time, she stayed away. She didn’t call me, didn’t stop in and, most importantly, I didn’t see her name typed on any new files in my “in” box. She must have been doing well, I assumed and believed.
One day I cut though the City Prosecutors office, past the desk of a friend I knew there who worked as a records clerk. As he told me about his new birdhouse business, I glanced down at his desk and saw Mickey’s name on a new file. “What’s this guy doing back in court?” I asked as I saw the charge of “theft by unlawful taking” typed underneath his name.
“Back to purse snatching again,” he said, “just like before.” He smiled sadly, shaking his head, at how stupid the (alleged) crime was described in the police report. “Caught on videotape in the grocery store.”
“With a woman?” I asked, knowing the answer and feeling the posture being sucked out of my shoulders. “Teresa?”
“Yep, that’s her. Wearing a blond wig,” he said.
“But she hasn’t called me?” I protested, probably taking on the look of that kid who asked Shoeless Joe Jackson, “say it ain’t so?” in the midst of baseball’s game-rigging tragedy.
“That’s probably ‘cause she’s in jail, in Iowa, on felony theft and possession charges,” he said. “She’s not coming back to Omaha for a long time.”
I returned his smile, but only half-heartedly. I liked him, but the difference between people who worked where he did and where I did was our fundamental belief in the goodness or corruptibility of common people. He was a good person, but he was a realist who looked at people like Teresa and Mickey as being at least half empty. I had to be an idealist, however, who looked at such people as being half full and capable of great things if we only gave them a chance.
We both had to smile and laugh often, as we did that day, to keep the parade of horrible examples paraded before us from dragging us down to its level. Teresa’s story had picked me up, but suddenly I was reminded that while people were capable of amazing recoveries from amazingly painful circumstances, Flannery O’Connor was right. “Everything that rises must converge.”
I was down the rest of the day, just going through the motions. Luckily all I had were “traffic” clients to represent, whose cases were mind numbingly routine, and no one went to jail because of my mood. I told myself to forget about Teresa, that there were plenty of other success stories to focus on. I reminded myself that one of these people was now rumored to be dead, amid mysterious circumstances, and I wondered if perhaps Teresa was lucky to be in jail, where she was away from drugs and close to a doctor, since by now she must be much closer to death.
I took the edge off of my attitude that night by consulting with my long time legal advisor, Samuel Adams. He was both a brewer and a patriot, and the flavor made in his name washed bad memories and broken promises away better than my own mind could. I stopped at two, though. As good as the beer tasted, I was profoundly aware, through my job, of the dangers of numbing yourself to excess with substances, whether illegal or advertised.
The next morning I was late for court. The judge yelled at me and the other public defenders pretended to care as I vented Teresa’s story to them. I couldn’t blame them. They each had heard hard luck stories all day long and knew that I was just letting off steam after a particularly big letdown.
I prided myself on being the type of lawyer who tried to crawl inside the skin of my clients, who got to know them and feel their pain or their predicament so that I could accurately describe it to a judge or jury at a trial or sentencing hearing. None of my colleagues had ever cried in court the way I had several times, except one woman who cried her way back to the office after being yelled at by a judge. I knew a lot of people quietly laughed at me, standing up in my used clothing store suit, trying to hold back tears as I told the judge about my client’s sad story. As laughable as my style could be, it usually worked. I knew that just as people laughed at me, they also respected my sincerity, and my sometimes manufactured idealism. My own style was more like a roller coaster than a merry go round. I felt my client’s pain and their successes, probably too much for the low rate of pay they gave us. But I also felt immense pleasure at seeing my clients do well, at being hugged by them or even thanked occasionally. To me, being a p.d. was not just a job, it was an adventure. I knew I couldn’t afford to stay in this job for long, so I tried to savor every moment, before financial reality set in and idealism let me down.
Teresa’s story was truly an adventure, but afterwards being a public defender felt much more like just a job. I wasn’t ready to get off of the roller coaster yet, but the safe, predictable merry-go-round, of a well-paying private sector job or a less emotionally-invested style, personal looked a lot more appealing. I wasn’t ready to give up on human nature, or on my own idealistic outlook yet, but the glass was starting to seem more empty than full, the absence more real than the presence.
Teresa still hasn’t called and i take that as a good sign. If she were the way down again, she would be reaching out to her old friend, her public defender, the way a desperate, drowning person would reach out to (and pull down) a person who tried to help. In jail, you can always call your lawyer, but Teresa has never called me. I had no real reason for this belief, but something made me believe that she didn’t call out of respect for me and the way I tried to help her, without any real success. It would have been sickening to have to hear how her life fell back into after I had seen her put it all back together so tirelessly.
I still wonder about the diamonds, though. Were they real or fabricated? Part of me still believes in fairy tales like these, but I know there are no diamonds waiting for Teresa to dig up and live happily every after on when she gets out. She would have long ago sold them, shot up the proceeds and never fallen back to snatching purses if she had anything else left to lose in her life. They were simply a myth, spun by addicts who were stuck in jail and desperate for something shiny and valuable to focus on, to soothe them through their own dull gray, confined lives. I could now see clearly, as if through a half-empty glass, what I missed before. I was a fool to have ever believed in such a sparkling, senseless story.


When I got back from court in the morning or afternoon, I walked through our lobby and usually passed people who were already waiting to meet with me about their cases. I walked on by, took a few minutes to check my voice mail, glanced through the new cases and correspondence waiting in my mail box, and made a few notes on the cases I closed that morning. I stuck these files in my “out” box, filled up my water bottle, and walked back up to the lobby to see what and who was waiting for me.
Many of the cases involved charges and issues that I could almost do in my sleep. For every case involving no proof of insurance or driving during suspension, the entire case usually boiled down to just a few important questions. Aside from questions about the stop of the automobile, my clients either had insurance or they didn’t; their license was either suspended or it wasn’t. Clarence Darrow himself was not going to “get them off” on driving during suspension if the officer saw them driving and the Department of Motor Vehicles previously suspended their licenses. I simply told these people how to fix their driver’s license problems, told them to get insurance coverage as soon as possible and sent them on their way.
The fun part about being a public defender, however, was finding the one case in a hundred that held fascinating issues or that provided a chance to argue, appeal and then clarify an area of the law that had not been previously been litigated. Because of the high caseload, if you put up with the “emergency room” like daily work atmosphere, you were also rewarded with the chance to learn criminal law thoroughly. Like being a surgeon in a M*A*S*H hospital, if you stuck around for a few years, you acquired the experience of a criminal lawyer who spent decades in private practice.
I will never forget the day a judge twenty years my senior, who was talking to a private lawyer whose car cost more than my house, turned to me and said, “You’re a public defender, you probably know the answer to this question…” AS a P.D., you learned to take the bitter with the better. You put up with screaming clients and jam-packed days to learn the law well and to learn to be a good trial lawyer. If you put up with the monotonous cases, the fascinating, groundbreaking cases would come too.
But these interesting cases often came in uninviting packages. If you didn’t look past the surface, you didn’t see the fascinating legal issues beneath it. The day I met Mike, I almost lost it on him and almost lost out on the interesting issue that his case presented. I prided myself on keeping a cool head as my clients screamed at me, but I almost lost my cool before I even asked Mike about what brought him to see me.
When I walked into the lobby to start interviewing clients, Rosanna, our twenty-year-old Spanish translator looked to be on the verge of tears. She muttered something like “one of your clients says I’m a bitch, Dave.” Since Rosanna rarely complained and had never voiced a concern like this before, I could tell that someone had crossed an important line with her. She was silently asking me to do something about it.
Through dealing with several thousand clients, I discovered, over time, that a laid back, respectful attitude worked best to deal with often irate and irrational clients. They screamed at me and I calmly spoke to them, telling them that their case needed attention. When they saw that screaming didn’t provoke a reaction in me and heard that I wanted to work on their case, they usually calmed down and we talked about their legal problems. I drew the line, though, when my clients yelled at our office workers. Secretaries like Rosanna worked hard, tolerated abuse all day, and rarely complained. I could take abuse myself, but I couldn’t stand watching someone else have take it. I usually kept a cool head, but I was starting to lose it even before I met Mike in person.
On the way back to my office, I didn’t hold my tongue. “I heard you already got into it with one of the secretaries. Why’d you call her a bitch?” Mike was walking behind me and I looked over my shoulder and into his eyes.
“She was being a complete bitch”, he said. “I was just trying to find out when you were coming out and she got an attitude with me.”
“I don’t know why you think you can come in here and act like a jack-ass…” I said. We were just walking in the doorway of my office and I turned to face him to close the door.
“Don’t call me a jack-ass,” Mike said. He was about my same height and build, but I was in my mid thirties, in a tie, while he was barely old enough to drink. For a second, I was pretty sure that I had gone too far. I thought that this might be the client makes me lose my temper, my bar license, or even a couple teeth. I knew my boss wouldn’t be too happy about a fist fight breaking out in his office between a lawyer and a client.
“Well… then don’t come here acting like one,” I said. Mike and I instinctively took a step toward each other so that our noses were inches apart.
“Don’t call me a jack-ass,” he repeated. We just stood there like kids on a playground, seeing who would blink first.
Of course, being the mature lawyer, I took the mature way out. I repeated myself. “Well, then don’t act like one. Don’t come in here and start calling people names and then bitch when you get called names” This was going nowhere, but since I was the old one in the tie I didn’t want to back down and let him have the last word.
“Don’t call me a jack ass,” Mike said, finally. We stared at each other. “Look, can we just talk about my fucking case,” he asked.
Suddenly I felt like I was the one who crossed a line. I was supposed to be the professional, with kids at home and a mortgage, and I was picking a petty fight with a kid fifteen years younger than me whom a judge had appointed me to represent. What was I going to do, fight with my client over who was going to apologize first? What would I win by having the last word? Why was it my client and not me who wanted to concentrate on his case? That was supposed to be my role and yet in trying to act tough I forgot to act professionally. All of the sudden I realized how silly I must have looked. I knew that most of my clients ended up in front of me for failing to keep their cool and here I was, about to lose mine.
“Alright, you’re right,” I said. “I shouldn’t have called you a jack-ass. We just can’t let people yell at those secretaries or call them names. It just doesn’t work.” Mike nodded and we both sat down, still mad but toned down a little bit.
I asked the first question that popped into mind. “What are you charged with?”
“Disorderly conduct.” Mike replied.
“Oh really,” I said, faking surprise. We both laughed and the ice was broken.
Mike went on to tell me what had brought him to the public defender’s office. He and some friends went to a bar with a friend who had just turned twenty one. They walked the drunken birthday boy outside to sober up and stood as a group, waiting for a friend to pick them up. Mike was holding the drunk guy up when another friend warned him that there was a police officer walking up on them.
Mike yelled “Fuck the police” and went on holding his friend up by the armpits. When the officer walked closer, Mike’s friends warned him again, but he was full of liquid courage. This time he yelled, “Fuck those police.” After the officer demanded an apology and Mike refused, he was arrested for disorderly conduct. When the officer made him sit down to await back-up, Mike yelled to his friends, “I didn’t do shit.”
After Mike told me this story, I looked at him intently. “Are you sure that’s’ all that happened?” I asked. Mike promised me that this was everything and gave me several of his friends’ names to call as witnesses to this. I told him that if this is all he did his case was winnable. I warned him that sometimes winning meant losing at trial and filing an appeal. “The prosecutors tend to think of trial as the whole story, but I like to think of it as the first chapter,” I said. I knew that a trial judge would be unlikely to agree with my argument that Mike was simply exercising his First Amendment right to free speech when he said these things. I had lost enough times at trial and won enough times on appeal to know that it wasn’t whether you lost at trial that mattered. It was whether you could lose there with style at trial and win later on appeal. Winning at trial was enjoyable, but winning on appeal was the next best thing.
As a public defender I put up with a lot of ridiculous situations and was often called on to be more of a social worker than a lawyer. But the number of cases that were thrown my way meant that I had an opportunity to learn to be a good lawyer just by paying attention. I had seen enough cases in this area and read enough opinions to know that Omaha’s disorderly conduct ordinance was susceptible to a First Amendment challenge. The ordinance was written broadly enough to criminalize speech like Mike’s that was vulgar but not illegal. What he said was not smart or nice, but what the City of Omaha tried to do in criminalizing it was unconstitutional.
While people looked down their nose at me for being a criminal defense lawyer, I took pride in my small role as guardian of the Constitution. I was not going to let case s like this, where the government was punishing people for voicing their opinion about the police, slip by on my watch. I put up with a lot of boring, run of the mill cases to find cases like Mike’s, where I could find the right case and ask the appellate court to answer an important question about the intersection between people’s free speech rights and the government’s right to regulate words that tended to incite an immediate breach of the peace.
A week or so after Mike’s interview, I copied the police report that detailed Mike’s arrest. To my surprise, the report read almost exactly as Mike described his encounter with the police officer. This meant that I could more easily create a good record for appeal because I could use the state’s witness and the report itself to show exactly what Mike said and why he was arrested. The officer would have a hard time adding on to the report and creating a better reason for the arrest, in other words.
Even though Mike and I almost came to blows, preparing for his case motivated me. Some people are born to heal the sick or to teach the young, but I felt like I was born to keep governmental power in check, even if it was a simple misdemeanor case. I didn’t care if I was in a penny ante game, I was playing a game I loved, and believed in, and honing the skills I hope to use on higher stakes cases in the future. I read case after case involving the regulation of speech, the use of vulgarity in public, and the right to voice one’s opinion about the police. The more I read, the more motivated I became. Mike may have acted like a jackass, but yelling “fuck the police” didn’t rise to the level of yelling fire in a crowded theatre. I lost a lot as a public defender, but this time I was determined to win.
I prepared arguments, I copied quotes from the Declaration of Independence, and I summarized case law to give to the judge and to use on appeal. My colleagues laughed at the energy I put into a case that could easily be disposed of with a guilty plea and a $50 fine. I loved it, though. I was finally dealt a case where there was an important point to make. I put up with a lot of driving during revocation cases to get to a case with interesting important issues, and I was not going to lose it for a lack of work. I knew I would lose at first, but I also knew I could win later. I knew the prosecutor would laugh at me, but I also knew the law would allow me to laugh last.
At the motion hearing, I was quite sure that the prosecutor would follow his usual routine. He would offer to recommend a small fine if my client plead guilty today but would ask for jail time if I drug the case out any longer. Of course, I would see through his idle threats, argue the motion and lose it. Then I would preserve the issue at trial and get to work on the appeal.
I walked into the courtroom expecting all of these things. I had a brief already prepared and had copies of cases ready to give to the judge and the prosecutor. I even had a short speech ready to give to the prosecutor when he threatened to ask for jail time for such a silly offense.
But I never got to make it and didn’t even get the chance to argue the issues. The prosecutor caught my attention when I walked into the courtroom with Mike. As I got ready to tell him there were not going to be any plea bargains, he spoke first. “I’m going to dismiss it. It should have never been filed.”
Five minutes later the prosecutor kept his word and dismissed Mike’s case. I was happy for him, but also a little annoyed at having prepared so many hours for nothing. Evidently the prosecutor, or his bosses, saw the same vulnerabilities that I had seen. As I looked for a good case to take up to the appellate courts, they didn’t want to give it to me. I should have viewed this case as a “win” but it felt more like a draw, like preparing for a game when the other team didn’t even show up. Mike was happy, and free, but I was all dressed up with no place to argue.
As I studied the police report in preparation for Mike’s case, I came across something in his criminal record that explained a lot. There are two types of entries on a person’s criminal record, “suspect” entries and “victim” entries. “Suspect” entries contain an arrest number, signifying the police department’s method for tracking arrests. “Victim” entries have no arrest number and are placed on the record when a person is either subpoenaed into court as a witness or when a person is a victim of a crime. Thus, someone with a trained eye can look at a person’s criminal record and know which both the crimes they have been charged with and the crimes in which they were either the victim or a witness.
There wasn’t much on Mike’s record. The first entry, though, told me a lot about the attitude that was coming out when Mike was in his early twenties. Nine years ago, Mike had been either a witness or the victim of a child sexual assault. It looked to me like Mike had been through a lot. He looked perpetually angry, but also looked like someone who, when he calmed down, was a pretty decent person. I had made up my mind to fight to keep another charge off of his record and had gotten my wish. I pictured the victory differently and didn’t expect it so suddenly. But a win is a win and Mike needed one.