In Omaha, ninety-percent of the attorneys are graduates of Creighton University School of Law, a local Catholic University just a few blocks from the Courthouse in downtown Omaha. Creighton made it to the N.C.A.A. College Basketball tournament in 2002, but they weren’t expected to get very far.
The first round was played on a Wednesday afternoon and the library of the Public Defender’s office was packed with a few female and almost every male attorney, surrounding the t.v. and watching the game on E.S.P.N. The room thinned out when court started at 1:00 p.m., just as the game went into the first overtime period. I stuck around, with a few of my coworkers, since I was lucky enough to have no scheduled court appearances that afternoon.
Creighton jumped out to an early lead in overtime, but the other team came back quickly. Things looked bleak for Creighton, though, when star player Kyle Korver fouled out. Even without their star, Creighton hung in the game and tied it up to send it into double overtime. With Korver out, all heads turned to Terrell Taylor, an excellent player who had demonstrated extreme talent but who had also been benched periodically throughout the year by coach Dana Altman for undisclosed “disciplinary problems.”
Taylor played very well and kept Creighton close, but Florida held the lead throughout most of the second overtime period. Spirits were down in our library as the few remaining people began to suspect that, without Korver, the lead would hold and we’d all be talking about other teams and next year.
With less than a minute left, Florida led by two and had the ball, but turned it over without scoring, giving Creighton the last twenty seconds to tie or win. Creighton couldn’t set up the shot, however, and the ball was knocked out of bounds, off Florida, with just three seconds left. One last, slim chance for a team that had been outplayed and was without its star.
If you watched the news that night, you probably saw what happened because it showed up on every highlight reel on every sports channel and every network that evening. Terrell Taylor, back in his hometown of Chicago, took the inbounds pass. With Jordanesque quickness, and with two people on him, he drove right, then left, hitting an off-balance, long three pointer for the win, just as time expired. Even the quietest secretaries were high-fiving each other in our library. We were just co-workers, but watching this perfect ending unfold was a better climax than we’d ever seen from Hollywood. Being there had to have been incredible, but just being able to watch this moment in real time was magical.
The local news was filled with images of Terrell Taylor’s shot and all of Omaha was talking about Creighton’s and Taylor’s miracle. Later, ESPN’s sportscenter led off their first round coverage with a clip of the shot and then spent several minutes covering the story behind it. Terrell described growing up in Chicago, idolizing Michael Jordan and even driving by Jordan’s statue as Terrell pulled up with his team to play, in Jordan’s house, for the first time. I remember Taylor’s voice most of all, carrying over the dozen microphones in his face, describing how he always wanted to be “like Mike” and finally got a chance to do it in his first NCAA tournament.
The moment was incredible, but Creighton’s luck didn’t hold for long They lost by a bunch in the second round, but the memory of Taylor’s shot hung around Omaha, giving us a consolation prize for this year and something to look forward to next year, as Taylor came back for his senior season.
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A few weeks later, I was waiting in Courtroom 26 for one of my clients to be sentenced by Judge Swartz. I was making some notes in the file and casually whispering to the other attorneys when the judge called out, “State of Nebraska versus Terrell Taylor.” I didn’t look up, not because I didn’t recognize the name, but because I was a little preoccupied and didn’t stop to consider that it could be the same person.
Then I heard the voice, the same voice I’d heard on ESPN a few weeks earlier, and realized this was “him.” He was in court to cancel two warrants and to be sentenced on some relatively minor charges, including driving under suspension and failure to appear in court. I listened in and heard that Taylor had managed to make this relatively small problem much bigger by getting in more trouble while he was on Judge Stephen Swartz’s “watch.” Apparently, Judge Swartz had placed Terrell on probation several months ago, meaning that the new charges he was facing could possibly get him in “double trouble” by causing him to both face new charges and to face a possible violation of probation for engaging in unlawful conduct while on probation.
Judge Swartz was known as a good trial judge but a harsh one for sentencing. He was a rare example, at least in Douglas County Court, of a judge who still believed in making the prosecution prove its case beyond a reasonable doubt. If they didn’t, he would find you not guilty, no matter the facts, the political winds, or what he thought of you personally. But while Judge Swartz could be the best judge your client could hope for if a case went to trial, he was not the judge you wanted your client in front of if the person could not follow a few simple rules. Judge Swartz took the law and the concept of beyond a reasonable doubt seriously, but, once he found you guilty, if you were lucky enough to be placed on probation, you either stayed out of trouble or you went to jail.
Evidently Judge Swartz had given Taylor a chance at probation several months back, had ordered him to get an alcohol evaluation, to refrain from drinking or using drugs and to refrain from unlawful conduct. Now Taylor was having to explain why he received new charges that involved driving during suspension, possession of marijuana and driving while intoxicated, and why he had missed the court dates for these charges. It wasn’t hard for him to explain why it had been difficult to be in court, since everyone knew he’d been on the court a lot for the last several months of basketball season. However, the fact that he was busy with basketball was sort of a double-edged sword because while it explained why he missed court, it didn’t excuse the fact that new charges had been filed that involved both drugs and alcohol. Terrell could say that he’d been busy with basketball, but the judge could counter by saying “you weren’t too busy to get drive drunk or to smoke marijuana though, were you?”
Terrell had a private lawyer and had done a few things (besides win the game) that I knew Judge Swartz would like. He had an alcohol evaluation in his hand (I wondered when he’d had time to do it) and wasn’t making up the type of lame excuses that I knew Judge Swartz hated. Terrell’s apologies and willingness to take his punishment seemed to put his own “hat in his hand,” so to speak, and I knew that this, and the alcohol evaluation, were the only thing keeping him from going to jail that day.
Judge Swartz was a very smart judge, and while I often disagreed with his harsh attitude toward people with chemical dependency problems, I respected his thorough understanding of the law and his willingness to work hard to interpret and dispense it. He would "max you out" in a heartbeat if he thought you deserved it, but. unlike some other ex-prosecutors on the bench, he wouldn’t take shortcuts in reaching that conclusion.
For Terrell, this looked like bad news because he had not followed a few simple rules. Judge Swartz wouldn’t care about Terrell’s recent fifteen minutes of fame, wouldn’t care how the team would fare, and wouldn’t care how the public would react. If he thought a person deserved to go to jail, they went there, no matter how much money they made, political pull they had, or athletic ability they demonstrated. He was the polar opposite of a rubber stamp and would politely listen to both sides, taking in all the evidence, and then impose whatever verdict or punishment the evidence warranted. He would find the scummiest defendant not guilty if the evidence wasn’t’ beyond a reasonable doubt and could also send the star player to jail, just before the big game, if he thought the defendant deserved it.
Judge Swartz tore into Terrell, telling him he watched the game, saw the amazing shot and saw the replay on ESPN. “But the whole time, Mr. Taylor” Judge Swartz cautioned, “I wondered if everybody watching would have been so amazed if the had known what I knew.” “Would they have fallen all over you if they’d known, like me, that you were in trouble, back in Omaha, were maybe on your way to jail, because you couldn’t stop driving when your license was suspended, couldn’t stop drinking when the court told you to, and couldn’t quit smoking marijuana when it’s against the law and against your probation for you to do so.”
From many intense moments before him, with clients by my side, I knew Judge Swartz well enough to know that what really upset him wasn’t the driving or the missed court dates, but the fact that Terrell had the nerve to get a drunk driving charge while he was on Judge Swartz’ probation. “Not only did you not do what I told you to, which was to get your license reinstated, you went out and got drunk and drove and got caught and missed court and now you want me to give you another chance,” Judge Swartz would have intoned.
This stunt, as Swartz would see it, was not only an indication of a bad attitude, but was like thumbing your nose at the court and then asking for a favor. Judge Swartz had no sympathy for those with alcohol problems believed that jail was a good alternative to treatment, especially when a defendant didn’t take advantage of a chance at probation. Unless a defendant gave him a good reason to believe in probation, jail was just a quick signature away if a person violated their probation.
Today was no exception. Terrell didn’t go to jail, but he may have wished he would have. The fact that he had an evaluation saved him from a swift, severe punishment. Since Terrell was pleading guilty to violating his probation, he could have gotten up to six months in jail, just as he could have gotten for the original charges. Judge Swartz crafted a new probation with just a few simple rules and a rough ending. Terrell was ordered to stay away from drugs and alcohol, and be tested for this , for the next year. He was also ordered to stay out of trouble and to get his license reinstated. Rather than send him to jail today, Judge Swartz sentenced Taylor to begin serving thirty days in jail on a date about eleven months in the future: March 1, 2003. This was known as a “show cause” sentence, and it could be waived by the judge, but the defendant had to “show cause” why he shouldn’t go to jail when he came to court that day.
“It’s really simple, Mr. Taylor,” Judge Swartz said. “You either stay out of trouble the rest of this year and the first part of next year, or you miss the thing that you and your team dream of, the Big Dance, the NCAA tournament.” “Don’t let your team down, don’t let yourself down, Mr. Taylor.”
“You had your fifteen minutes of fame, Mr. Taylor, and I was amazed at your talent, the body control you had, the way you handled yourself on the court. I don’t know if that was just a gift or if it was something from your brain or what, but it was amazing to watch. Basketball will be over someday, though, and you’ll have to live in this world just like everybody else. We know you’re better than almost everybody else on the basketball court, but in this court, you’re no different than the rest of us and the same rules apply to you that apply to me and everybody else in this room. So you’re not going to jail today, but I’m giving you the keys to your own jail cell. If you stay out of trouble and tget it together off the court, you’ll be playing on the court next year. If you don’t, you won’t. It’s up to you.”
With that, it was over and Terrell Taylor walked out of court with his attorney. At the time, I wondered if Terrell would be able to live up to these rules and also wondered if Judge Swartz would be able to follow through with this promise next year, especially if it looked like the local team would be getting some national exposure. But I never got to find out. Terrell Taylor transferred to another school over the summer and undoubtedly ignored the requirements of his probation. Because of the transfer, he had to sit out of basketball for a year. Creighton did well the next year, even without Terrell Taylor. Although no announcers called out Terrell’s name during the month of March, I heard it one more time. I was back in courtroom 26 on March 1, 2003 when Judge Swartz called out Terrell’s name. Of course, he wasn’t anywhere near Nebraska, but Judge Swartz had sentenced him to appear in court on that day to show cause why he shouldn’t go to jail. Since he wasn’t there, and thus wasn’t able to show anything, the Judge ordered him to serve the thirty days and issued a warrant for his arrest. I knew the warrant would stay active for two or three years, meaning that if Terrell Taylor ever paid a visit to or played a game in Nebraska, he’d end up staying a little longer than he imagined.
UPDATE:
This post has been up for years, but hasn't received much attention until someone commented on it at the Bluejay Cafe. Reading the comments, I see they are right and there are probably many inaccuracies regarding who Creighton played (it was Florida and I had originally put Northern Illinois) and even about the descriptions of the game. I'm not a basketball fan but wish I was as I miss out on a lot of March Madness fun every year, having not followed college or pro basketball all year.
I hadn't planned on writing about the game until months later when I heard Taylor's voice in court so I described the game as best as I could, which wasn't very accurate. If I was writing on a sports blog and not in a journal of an (ex) public defender I would have double checked the game descriptions. Actually, I probably should have anyway and shouldn't have tried to describe an event months later. As I'm a big football and baseball fan, I can see how inaccurate descriptions would have annoyed me and made me question the author's credibility.
Still, the point wasn't to illustrate the game as much as the court hearing that came later. I wrote about that, too, from memory because, guess what, as a p.d. I couldn't afford to pay for the transcription costs to get exact quotes. I described it as I remember it, hopefully better than I did the game.
So, sorry if I tried to sound like both a basketball and a Creighton fan when I really watch about one game a year. I wanted to tell the story about what happened to Terrell in Court but messed up in the way I described what he did on the court.
I was hoping for a more positive reaction, but shouldn't have expected either bloggers or hardcore college basketball fans to hold back on inaccurate descriptions. But I'm glad somebody's reading this stuff!
(If you have any corrections you want me to fix, leave me a comment and I'll make the change. )
Copyright, David Tarrell, All Rights Reserved, 2006
Monday, April 03, 2006
Mario
Mario had short, dark hair and a small diamond earring that caught my eye when I called out his name in our reception area. He followed me back to my office and, when I pulled his file and looked at the computer system, I saw that he was charged with D.U.I. second offense, wrong way on a one way street, and failure to appear. As we talked about who he was and how he came to be stopped and arrested for D.U.I., I saw that Mario was very self-confident, but not quite cocky, at least not now. He was about twenty-five years old, a native of Mexico, and had a well-paying but tough job as a supervisor at a local packing plant.
It’s unlawful for me to inform the court if I learn that my clients are not truly “indigent,” or wealthy enough to be able to afford their own lawyer. The theory is that it would interfere with my duty to represent their legal interests if I was also checking their finances to see if they really qualified for my “free” legal advice. It might also cause my clients to hide things from me and, as a society, we want to encourage people to talk openly to their lawyers, without fear of being “ratted out.” I wondered, though, if Mario truly qualified for a public defender. This wasn’t because of the way he dressed- although he had on brand new name brand shoes and the kind of clothes that kids get held up for. It was because I wasn’t used to seeing clients with well-paying jobs, who were called “boss” by their employees. Mario was young, but he’d held this job for five years and risen up the ladder quickly.
I was used to seeing my “indigent” clients dressed in expensive, name brand clothes, the kind with the designer’s name boldly displayed across the front. While this was frustrating to a public defender who bought all of his suits secondhand, I knew that a name brand shirt didn’t mean a client wasn’t truly poor. Somehow a lot of my clients thought that a $60 shirt was what they really needed, instead of a license plate renewal or an insurance policy for their car. I saw a lot of clients who couldn’t afford a $500 bond, but had $500 worth of jewelry and clothes in their property at the jail. It wasn’t that they were secretly rich, in most cases, they just chose to wear their money, literally, on their shirt sleeves. At least I hoped my clients truly paid for and didn’t steal these clothes.
Mario was single with no kids, which meant that he was even less indigent than most of my clients who had children to support. He spoke with no trace of an accent and told me he was “legal” when I asked him if he was a U.S. citizen. I’m required to ask this question of all my clients, since their immigration status can be affected by convictions for certain crimes. I took Mario’s “legal” answer to be a no and told him, as I’m required to do, that his immigration status could change if he was convicted of certain crimes. He didn’t seem worried about this and told me, again, that he was “legal.” I explained that anything he told me was a secret, that I could lose my bar license if I told anyone about it, and Mario told me that he was not yet a citizen but that he’d lived in Texas since he was little. He was now a legal resident with a valid “green card.”
As we reviewed the police reports I explained that there was very little to fight about in his case. The police didn’t always do this, but this time the cops thoroughly documented Mario’s poor performance on field sobriety tests and received a breath test that was well above the legal limit. Mario was on the way home from a barbecue, at a family member’s house, got confused in an unfamiliar area, and turned the wrong way down a one-way street. As soon as he realized he was going the wrong way, the police cruiser lights came on and the smell of alcohol led to an arrest for driving while under the influence or D.U.I.
Mario was charged with second offense D.U.I., which meant that he had to spend a minimum of two days in jail if he were placed on probation and at least thirty if he did not. I knew probation was likely since Mario had a minimal record, a good job and had generally cooperate with the police during his arrest. Mario was very concerned with keeping his job and very worried about how this misdemeanor charge would affect his job and his ability to drive legally in the future. I was thrilled to have a client who actually wanted to participate in their own “treatment” and liked Mario’s attitude. He seemed smart, motivated and hard-working, and I loved to help people like this get out of trouble and on with their productive lives.
Before Mario left my office, I arranged an “early plea” hearing date about two weeks in the future. This way I could pick a judge who was likely to give Mario probation. In the meantime, Mario could make arrangements with his employer to miss a couple days of work. I told him to get an alcohol evaluation, which cost about $100, and attend a few A.A. meetings, which cost $1 if he chose to put money in the hat they passed. These two steps were helpful to let the judge know Mario was serious about wanting to stop drinking and driving and to show that judge that Mario was capable of helping himself without being told. I had learned that a little work before probation helped to lessen its requirements and helped insure that a defendant was serious enough to complete it.
When I remarked that he could even get a sponsor through A.A. if he thought he had a problem with alcohol, Mario blurted out, “”Oh I know I have a problem.” This surprised me because I had talked to hundreds of seemingly hard core drunks whose lives had crumbled but who still believed, in the face of overwhelming evidence, that they didn’t have a problem. It was rare to see a person who seemed “together” and who also realized what the source of his legal problems was. It wasn’t my job to decide- and I wasn’t capable of determining- whether Mario was an alcoholic. But if he believed he was, I was going to help him and not argue with him. I didn’t have time to help him much myself, but if this young, proud, slightly-guarded Mexican-American sitting before me wanted help, I could tell him where to get it. Since few of my clients asked for this type of help, and even fewer seemed, like Mario, capable of making the most of it, I decided Mario was worth investing extra energy in. To hear him admit to this middle aged, balding gringo in a tie that he had an embarrassing but common problem made me trust him, want to fight for him, and want to see him stay out of trouble.
As we shook hands, I was reminded how conveying respect for a person, through handshakes, body language and general respect, could allow two strangers to trust each other in just a few short minutes. As he left, the smile on his face told me he trusted me and trusted my ability to help him. I would have felt a lot of pressure if I was not fairly sure that the judge would see what I saw- a smart young man who truly wanted help.
Two weeks later, at his “early plea” hearing, Mario and I talked in the hallway outside the courtroom. He was very worried about having to go to jail that day and about how his sentence would affect his job at Nebraska Beef. I was a little surprised at this because I’d already explained that two days in jail were almost inevitable. He muttered something about missing too much work lately and wondered if there wasn’t a way to do this without having to miss any more. I told him I would see what I could do. Maybe the judge would allow “work release” and he could go back to work today. What I hadn’t told Mario was that two days “in jail” didn’t necessarily mean wearing an orange jumpsuit. The jails were so full and the D.U.I. cases so common, that it wasn’t unusual for a client sentenced to two days to complete these two days on “house arrest” (at home) or on “work release” (in a less-restrictive setting at night and at work during the day.). I hadn’t told him this because it wasn’t guaranteed and it was always better to surprise a client with good news than with bad. Mario’s request was possible, he just didn’t know this yet, and the fact that he expected this possibility surprised me. His request didn’t upset me though. I was used to clients with unreasonable expectations. Most of the time I ignored these demands as the natural product of desperate people. They knew they were facing severe consequences; they were just so far down that they hoped for a break, even when they knew it was unlikely.
It wasn’t unusual for my clients to have other court case pending either. But it was important for me to know what these other cases involved so I could “play their hand” in the best possible way. For example, if Mario had new D.U.I. charges, I could help him tremendously by scheduling the cases for a plea on the same day. That way he could be facing two second offense D.U.I’s, with a potential license suspension of one year, instead of a third offense D.U.I. with a potential fifteen year license suspension. I could only help him if I knew the whole story, and if I didn’t he could be in a lot more trouble and I told him this when I asked him what new charges he faced. He started to tell me, then stopped. He said it wasn’t here in Omaha, it was down in Kansas, and he’d talk to me about it after court. Knowing this, I was comfortable going ahead with Mario’s plea. The chances of helping his Kansas case through the way we “played” this one or of Kansas even finding out about this one, were slim. Two bureaucracies rarely work together quickly, in other words.
Mario was placed on probation, as we both hoped and expected. He was fined $500 and was ordered to serve two days “in jail” (on work release) beginning the following Monday. He walked out of the courtroom a temporarily free man with a fairly bright future. He had gotten a good deal: a free lawyer, a chance at probation after his second D.U.I. in three years, and he hadn’t missed more than a day of work. I was optimistic about his chances on probation and optimistic about him as a potential citizen of the United States. He had made some mistakes, but his two D.U.I. convictions still totaled less than the President (1) and the Vice President’s (2) total number of drunk driving convictions. I thought Mario would successfully complete his probation and would probably become a citizen soon afterward. He seemed well on the way to addressing his alcohol problem and capable of taking care of himself in the future. In a nation formed by immigrants and populated by many people with substance abuse problems, such a person would made a good addition, I believed.
In the hallway, Mario asked me if I could help him with the charges he faced in Kansas. “I got picked up in Kansas last week and spent a couple days in jail. That’s why I couldn’t miss work anymore,” he said as he pulled out a crumpled piece of paper. He told me it was a tiny town, Russell, and laughed when I remarked that Bob Dole was born there. As I unfolded the paper, the grin on Mario’s face remained, but the feeling of accomplishment inside me melted away. The paper was a federal indictment, from Federal Court in Kansas, charging Mario with possession of cocaine with intent to deliver. I saw that his bond had been set at $5000 cash and that he had posted it. The fact that my “indigent” client could post such a bond didn’t shock me as much as the amount of cocaine allegedly found in his possession: 2.75 pounds. When I saw the quantity of drugs I couldn’t believe they let Mario out of jail for this relatively low amount of money. I also couldn’t believe that Mario was still worried about getting probation, and not missing work, for what was now a minor, almost insignificant, misdemeanor charge. I suddenly realized the work I had done Mario was like a doctor bandaging a cut on a man doomed to walk the plank. Mario would never finish probation in Omaha and, wouldn’t have trouble with staying sober since booze was hard to come by in federal prison. There was a hearing scheduled at the end of next week where Mario was scheduled to enter a plea of either guilty or not guilty.
As I read the paper, Mario said something about driving his car down to Texas with a friend, getting pulled over for speeding and then letting the officer search the car after being asked. He said he didn’t’ think the state trooper would look in the glove box and thought he’d get in more trouble if he didn’t agree to let the trooper search his car. They hadn’t found all the coke yet, he said. More was hidden in the trunk, but nobody said anything about that to him thus far.
I worked on misdemeanors and knew only enough about federal criminal law to get myself in trouble. But I did know that the federal sentencing guidelines mandated sentences that were sometimes described in decades and that federal criminal defense work is often described as a “race to the prosecutor’s office” as favors are given to defendants who “talk.” Before long Mario would be faced with the choice of whether to inform on his friends (now more appropriately called his “former friends”) in exchange for a lesser sentence. Since he wasn’t a citizen, deportation (or “removal” as it’s now called) would probably be inevitable if he was convicted of cocaine possession. In other words, Mario’s likely future was moral dilemmas, a long prison term, and a one-way trip back to Mexico.
As my eyes looked again at the paper, and these thoughts rushed to my brain, Mario still smiled, as if he had just gotten one case down and had one to go. He asked me if I could defend him on these other charges (he even offered to pay me) and I told him that not only was I not allowed to proactive in Kansas, but that he would want someone with more experience than me. I was already shocked by what I was reading, but Mario’s next question made my jaw drop. Should he fight these charges with an attorney or just plead guilty? I knew that even with an attorney his chances looked terrible and that “just pleading guilty” would be like fighting terminal cancer with Tylenol.
I should have told him this, should have told him that he was in for the fight of his life and that he could go to prison for almost as long as he’d been alive. But I didn’t. His girlfriend was with him and they seemed so hopeful, so optimistic. I knew he’d go back to Kansas and likely face the end of his life as he now knew it. I knew that at the end of that car ride, someone would have to break this news to him, but I didn’t want to be the one. Ethically, as Mario’s lawyer, I should probably have laid it on the line for him right then, so that he knew what he was facing. But I couldn’t ruin today for him, when it had started out so good and when tomorrow seemed so bleak. I quickly decided to let Mario and his girlfriend have today to themselves and I “passed the buck” to his future attorney to have to tell him the tragic news.
I told him to go to Kansas City right away, to find an attorney who specialized in federal criminal defense work, and not to get his hopes up. When he heard this last comment, he looked at me strangely, as if I must not have known what I was talking about. He promised me he would get on this right away, but he said it like a teenager telling his dad he’ll check the oil. He said he was even willing to spend the whole $5000 “if that’s what it takes” and seemed impressed to have this much money to talk about. I knew, though, that while that was a lot of money to a public defender or a packing house supervisor, it wouldn’t impress anyone where Mario was going.
I was like a doctor who realizes his patient has an incurable disease, a disease the patient hasn’t even felt yet. I knew his current life would be virtually over soon, that this seemingly hard-working, vibrant, confident immigrant would probably be enjoying one of his last few weekends in which he had both his freedom and his youth. Should I have taken him in the corner, grabbed him by the shirt and told him to run back to Mexico and forget about the five grand? I didn’t. I couldn’t ethically advise someone to disobey a court order to appear and I didn’t want to advise someone about a case until I knew all the facts and thus all their possible defenses. From what I knew, Mario’s future looked bleak, and all I told him was to find another lawyer, quickly, so he could begin to prepare for this sobering future.
Maybe I should have told Mario more about the extent of his problems. But looking at his naïve face, with his beautiful, smiling girlfriend in the background, I just couldn’t. As a professional I should have, but as a person I decided not to. I knew this weekend, he’d be with his family, just like he was when he got his D.U.I. charge, and that he’d be having a few beers as he got ready for jail on Monday and for what he thought would be a long probation term without alcohol. I knew he would be meeting another attorney soon and that the stark reality of his federal charges would be setting in soon enough. So I told him I was serious about his getting in touch with an attorney soon and I left it at that. He thanked me, we shook hands, and he said he really appreciated my help. As I walked away, I said my traditional “good luck” but I said it with a lot more feeling than normal. He didn’t notice this, but I did. The case, and Mario’s face, haunted me all weekend.
I was back at work on Monday and was soon busy enough to have other cases and people to occupy my time and thoughts. I didn’t ever find out what happened to Mario. I checked the computer screen a few months later and saw that he served his two days in jail and then never reported to probation again. A violation of probation was filed and a warrant for his arrest would remain active for two years in Douglas County. I knew, though, that if he hadn’t come back yet, he wasn’t going to. I can guess that he’s either in federal prison, awaiting deportation, or in Mexico hiding from Uncle Sam and wishing he had those five thousand dollars to live on. Mario seemed smart and confident, but someone had played him for a fool and had promised him some “easy” money for being a “mule.” That’s probably where Mario go the $5000. Someone probably flashed more cash than he’d ever seen and promised him $5000 for moving “just a suitcase” of cocaine a thousand miles. Mario probably thought that for a couple days’ drive he could earn more than he made in two months at his job. He probably didn’t stop to think why such an “easy” job was worth so much until he heard how high the stakes were if you got caught. Like a lot of guilty, but lowly, people in the drug hierarchy, he probably ended up doing a lot of time since he didn’t know enough about the organization or its members to be much help to the government. So he either wised up and ran for his life or ended up fighting for it for years in prison.
I still wonder where Mario was and what he thought when he finally realized how bad things were for him and how much worse they could get. I wonder if I should have told him about it myself or if I made the right call to let him live, ignorant of this reality, a little longer.
Copyright, David Tarrell, All Rights Reserved, 2006
It’s unlawful for me to inform the court if I learn that my clients are not truly “indigent,” or wealthy enough to be able to afford their own lawyer. The theory is that it would interfere with my duty to represent their legal interests if I was also checking their finances to see if they really qualified for my “free” legal advice. It might also cause my clients to hide things from me and, as a society, we want to encourage people to talk openly to their lawyers, without fear of being “ratted out.” I wondered, though, if Mario truly qualified for a public defender. This wasn’t because of the way he dressed- although he had on brand new name brand shoes and the kind of clothes that kids get held up for. It was because I wasn’t used to seeing clients with well-paying jobs, who were called “boss” by their employees. Mario was young, but he’d held this job for five years and risen up the ladder quickly.
I was used to seeing my “indigent” clients dressed in expensive, name brand clothes, the kind with the designer’s name boldly displayed across the front. While this was frustrating to a public defender who bought all of his suits secondhand, I knew that a name brand shirt didn’t mean a client wasn’t truly poor. Somehow a lot of my clients thought that a $60 shirt was what they really needed, instead of a license plate renewal or an insurance policy for their car. I saw a lot of clients who couldn’t afford a $500 bond, but had $500 worth of jewelry and clothes in their property at the jail. It wasn’t that they were secretly rich, in most cases, they just chose to wear their money, literally, on their shirt sleeves. At least I hoped my clients truly paid for and didn’t steal these clothes.
Mario was single with no kids, which meant that he was even less indigent than most of my clients who had children to support. He spoke with no trace of an accent and told me he was “legal” when I asked him if he was a U.S. citizen. I’m required to ask this question of all my clients, since their immigration status can be affected by convictions for certain crimes. I took Mario’s “legal” answer to be a no and told him, as I’m required to do, that his immigration status could change if he was convicted of certain crimes. He didn’t seem worried about this and told me, again, that he was “legal.” I explained that anything he told me was a secret, that I could lose my bar license if I told anyone about it, and Mario told me that he was not yet a citizen but that he’d lived in Texas since he was little. He was now a legal resident with a valid “green card.”
As we reviewed the police reports I explained that there was very little to fight about in his case. The police didn’t always do this, but this time the cops thoroughly documented Mario’s poor performance on field sobriety tests and received a breath test that was well above the legal limit. Mario was on the way home from a barbecue, at a family member’s house, got confused in an unfamiliar area, and turned the wrong way down a one-way street. As soon as he realized he was going the wrong way, the police cruiser lights came on and the smell of alcohol led to an arrest for driving while under the influence or D.U.I.
Mario was charged with second offense D.U.I., which meant that he had to spend a minimum of two days in jail if he were placed on probation and at least thirty if he did not. I knew probation was likely since Mario had a minimal record, a good job and had generally cooperate with the police during his arrest. Mario was very concerned with keeping his job and very worried about how this misdemeanor charge would affect his job and his ability to drive legally in the future. I was thrilled to have a client who actually wanted to participate in their own “treatment” and liked Mario’s attitude. He seemed smart, motivated and hard-working, and I loved to help people like this get out of trouble and on with their productive lives.
Before Mario left my office, I arranged an “early plea” hearing date about two weeks in the future. This way I could pick a judge who was likely to give Mario probation. In the meantime, Mario could make arrangements with his employer to miss a couple days of work. I told him to get an alcohol evaluation, which cost about $100, and attend a few A.A. meetings, which cost $1 if he chose to put money in the hat they passed. These two steps were helpful to let the judge know Mario was serious about wanting to stop drinking and driving and to show that judge that Mario was capable of helping himself without being told. I had learned that a little work before probation helped to lessen its requirements and helped insure that a defendant was serious enough to complete it.
When I remarked that he could even get a sponsor through A.A. if he thought he had a problem with alcohol, Mario blurted out, “”Oh I know I have a problem.” This surprised me because I had talked to hundreds of seemingly hard core drunks whose lives had crumbled but who still believed, in the face of overwhelming evidence, that they didn’t have a problem. It was rare to see a person who seemed “together” and who also realized what the source of his legal problems was. It wasn’t my job to decide- and I wasn’t capable of determining- whether Mario was an alcoholic. But if he believed he was, I was going to help him and not argue with him. I didn’t have time to help him much myself, but if this young, proud, slightly-guarded Mexican-American sitting before me wanted help, I could tell him where to get it. Since few of my clients asked for this type of help, and even fewer seemed, like Mario, capable of making the most of it, I decided Mario was worth investing extra energy in. To hear him admit to this middle aged, balding gringo in a tie that he had an embarrassing but common problem made me trust him, want to fight for him, and want to see him stay out of trouble.
As we shook hands, I was reminded how conveying respect for a person, through handshakes, body language and general respect, could allow two strangers to trust each other in just a few short minutes. As he left, the smile on his face told me he trusted me and trusted my ability to help him. I would have felt a lot of pressure if I was not fairly sure that the judge would see what I saw- a smart young man who truly wanted help.
Two weeks later, at his “early plea” hearing, Mario and I talked in the hallway outside the courtroom. He was very worried about having to go to jail that day and about how his sentence would affect his job at Nebraska Beef. I was a little surprised at this because I’d already explained that two days in jail were almost inevitable. He muttered something about missing too much work lately and wondered if there wasn’t a way to do this without having to miss any more. I told him I would see what I could do. Maybe the judge would allow “work release” and he could go back to work today. What I hadn’t told Mario was that two days “in jail” didn’t necessarily mean wearing an orange jumpsuit. The jails were so full and the D.U.I. cases so common, that it wasn’t unusual for a client sentenced to two days to complete these two days on “house arrest” (at home) or on “work release” (in a less-restrictive setting at night and at work during the day.). I hadn’t told him this because it wasn’t guaranteed and it was always better to surprise a client with good news than with bad. Mario’s request was possible, he just didn’t know this yet, and the fact that he expected this possibility surprised me. His request didn’t upset me though. I was used to clients with unreasonable expectations. Most of the time I ignored these demands as the natural product of desperate people. They knew they were facing severe consequences; they were just so far down that they hoped for a break, even when they knew it was unlikely.
It wasn’t unusual for my clients to have other court case pending either. But it was important for me to know what these other cases involved so I could “play their hand” in the best possible way. For example, if Mario had new D.U.I. charges, I could help him tremendously by scheduling the cases for a plea on the same day. That way he could be facing two second offense D.U.I’s, with a potential license suspension of one year, instead of a third offense D.U.I. with a potential fifteen year license suspension. I could only help him if I knew the whole story, and if I didn’t he could be in a lot more trouble and I told him this when I asked him what new charges he faced. He started to tell me, then stopped. He said it wasn’t here in Omaha, it was down in Kansas, and he’d talk to me about it after court. Knowing this, I was comfortable going ahead with Mario’s plea. The chances of helping his Kansas case through the way we “played” this one or of Kansas even finding out about this one, were slim. Two bureaucracies rarely work together quickly, in other words.
Mario was placed on probation, as we both hoped and expected. He was fined $500 and was ordered to serve two days “in jail” (on work release) beginning the following Monday. He walked out of the courtroom a temporarily free man with a fairly bright future. He had gotten a good deal: a free lawyer, a chance at probation after his second D.U.I. in three years, and he hadn’t missed more than a day of work. I was optimistic about his chances on probation and optimistic about him as a potential citizen of the United States. He had made some mistakes, but his two D.U.I. convictions still totaled less than the President (1) and the Vice President’s (2) total number of drunk driving convictions. I thought Mario would successfully complete his probation and would probably become a citizen soon afterward. He seemed well on the way to addressing his alcohol problem and capable of taking care of himself in the future. In a nation formed by immigrants and populated by many people with substance abuse problems, such a person would made a good addition, I believed.
In the hallway, Mario asked me if I could help him with the charges he faced in Kansas. “I got picked up in Kansas last week and spent a couple days in jail. That’s why I couldn’t miss work anymore,” he said as he pulled out a crumpled piece of paper. He told me it was a tiny town, Russell, and laughed when I remarked that Bob Dole was born there. As I unfolded the paper, the grin on Mario’s face remained, but the feeling of accomplishment inside me melted away. The paper was a federal indictment, from Federal Court in Kansas, charging Mario with possession of cocaine with intent to deliver. I saw that his bond had been set at $5000 cash and that he had posted it. The fact that my “indigent” client could post such a bond didn’t shock me as much as the amount of cocaine allegedly found in his possession: 2.75 pounds. When I saw the quantity of drugs I couldn’t believe they let Mario out of jail for this relatively low amount of money. I also couldn’t believe that Mario was still worried about getting probation, and not missing work, for what was now a minor, almost insignificant, misdemeanor charge. I suddenly realized the work I had done Mario was like a doctor bandaging a cut on a man doomed to walk the plank. Mario would never finish probation in Omaha and, wouldn’t have trouble with staying sober since booze was hard to come by in federal prison. There was a hearing scheduled at the end of next week where Mario was scheduled to enter a plea of either guilty or not guilty.
As I read the paper, Mario said something about driving his car down to Texas with a friend, getting pulled over for speeding and then letting the officer search the car after being asked. He said he didn’t’ think the state trooper would look in the glove box and thought he’d get in more trouble if he didn’t agree to let the trooper search his car. They hadn’t found all the coke yet, he said. More was hidden in the trunk, but nobody said anything about that to him thus far.
I worked on misdemeanors and knew only enough about federal criminal law to get myself in trouble. But I did know that the federal sentencing guidelines mandated sentences that were sometimes described in decades and that federal criminal defense work is often described as a “race to the prosecutor’s office” as favors are given to defendants who “talk.” Before long Mario would be faced with the choice of whether to inform on his friends (now more appropriately called his “former friends”) in exchange for a lesser sentence. Since he wasn’t a citizen, deportation (or “removal” as it’s now called) would probably be inevitable if he was convicted of cocaine possession. In other words, Mario’s likely future was moral dilemmas, a long prison term, and a one-way trip back to Mexico.
As my eyes looked again at the paper, and these thoughts rushed to my brain, Mario still smiled, as if he had just gotten one case down and had one to go. He asked me if I could defend him on these other charges (he even offered to pay me) and I told him that not only was I not allowed to proactive in Kansas, but that he would want someone with more experience than me. I was already shocked by what I was reading, but Mario’s next question made my jaw drop. Should he fight these charges with an attorney or just plead guilty? I knew that even with an attorney his chances looked terrible and that “just pleading guilty” would be like fighting terminal cancer with Tylenol.
I should have told him this, should have told him that he was in for the fight of his life and that he could go to prison for almost as long as he’d been alive. But I didn’t. His girlfriend was with him and they seemed so hopeful, so optimistic. I knew he’d go back to Kansas and likely face the end of his life as he now knew it. I knew that at the end of that car ride, someone would have to break this news to him, but I didn’t want to be the one. Ethically, as Mario’s lawyer, I should probably have laid it on the line for him right then, so that he knew what he was facing. But I couldn’t ruin today for him, when it had started out so good and when tomorrow seemed so bleak. I quickly decided to let Mario and his girlfriend have today to themselves and I “passed the buck” to his future attorney to have to tell him the tragic news.
I told him to go to Kansas City right away, to find an attorney who specialized in federal criminal defense work, and not to get his hopes up. When he heard this last comment, he looked at me strangely, as if I must not have known what I was talking about. He promised me he would get on this right away, but he said it like a teenager telling his dad he’ll check the oil. He said he was even willing to spend the whole $5000 “if that’s what it takes” and seemed impressed to have this much money to talk about. I knew, though, that while that was a lot of money to a public defender or a packing house supervisor, it wouldn’t impress anyone where Mario was going.
I was like a doctor who realizes his patient has an incurable disease, a disease the patient hasn’t even felt yet. I knew his current life would be virtually over soon, that this seemingly hard-working, vibrant, confident immigrant would probably be enjoying one of his last few weekends in which he had both his freedom and his youth. Should I have taken him in the corner, grabbed him by the shirt and told him to run back to Mexico and forget about the five grand? I didn’t. I couldn’t ethically advise someone to disobey a court order to appear and I didn’t want to advise someone about a case until I knew all the facts and thus all their possible defenses. From what I knew, Mario’s future looked bleak, and all I told him was to find another lawyer, quickly, so he could begin to prepare for this sobering future.
Maybe I should have told Mario more about the extent of his problems. But looking at his naïve face, with his beautiful, smiling girlfriend in the background, I just couldn’t. As a professional I should have, but as a person I decided not to. I knew this weekend, he’d be with his family, just like he was when he got his D.U.I. charge, and that he’d be having a few beers as he got ready for jail on Monday and for what he thought would be a long probation term without alcohol. I knew he would be meeting another attorney soon and that the stark reality of his federal charges would be setting in soon enough. So I told him I was serious about his getting in touch with an attorney soon and I left it at that. He thanked me, we shook hands, and he said he really appreciated my help. As I walked away, I said my traditional “good luck” but I said it with a lot more feeling than normal. He didn’t notice this, but I did. The case, and Mario’s face, haunted me all weekend.
I was back at work on Monday and was soon busy enough to have other cases and people to occupy my time and thoughts. I didn’t ever find out what happened to Mario. I checked the computer screen a few months later and saw that he served his two days in jail and then never reported to probation again. A violation of probation was filed and a warrant for his arrest would remain active for two years in Douglas County. I knew, though, that if he hadn’t come back yet, he wasn’t going to. I can guess that he’s either in federal prison, awaiting deportation, or in Mexico hiding from Uncle Sam and wishing he had those five thousand dollars to live on. Mario seemed smart and confident, but someone had played him for a fool and had promised him some “easy” money for being a “mule.” That’s probably where Mario go the $5000. Someone probably flashed more cash than he’d ever seen and promised him $5000 for moving “just a suitcase” of cocaine a thousand miles. Mario probably thought that for a couple days’ drive he could earn more than he made in two months at his job. He probably didn’t stop to think why such an “easy” job was worth so much until he heard how high the stakes were if you got caught. Like a lot of guilty, but lowly, people in the drug hierarchy, he probably ended up doing a lot of time since he didn’t know enough about the organization or its members to be much help to the government. So he either wised up and ran for his life or ended up fighting for it for years in prison.
I still wonder where Mario was and what he thought when he finally realized how bad things were for him and how much worse they could get. I wonder if I should have told him about it myself or if I made the right call to let him live, ignorant of this reality, a little longer.
Copyright, David Tarrell, All Rights Reserved, 2006
Richard
I heard Richard’s voice on my voice mail before I even received the file folder that informed me I was assigned to his case. On the message, I could hear the familiar background buzz of the jail and Richard’s voice, like many clients who called from jail, sounded scared and desperate. “Mr. Parro?” (most of my clients got my name wrong at first, having only heard it from the hurried secretary when they called to see which public defender they had drawn) “I need to talk to you A.S.A.P. about my case. I can’t make bond because it’s $1000 and I don’t have even $100. The failure to appear charge shouldn’t even be on there because I was in the County Hospital on my court date. The sheriffs came and picked me up at my house and took me there. I couldn’t leave. They had a Board of Mental Health Commitment order for me and I couldn’t get out to go to court. It’s a long story, but the D.U.I. charge is from this summer, about three months ago, and I’ve spent the last two months in the hospital for severe alcoholism and depression.”
The message, like a lot of them, went on for a few minutes and from it, and from the computer system, I figured out that Richard was charged with second offense drunken driving, or D.U.I., driving left of center, and driving under suspension. There was not much I could do for Richard in the short term since the bond, $1000 cash, was not that high for a second offense D.U.I., especially considering that his first D.U.I. had come just over one year ago. His bond was not likely to come down to zero, where a person like Richard could afford it.
I could have scheduled a bond review hearing, by filling out a form and filing it. This would have placed Richard and myself back before the judge who originally set his bond. The only problem was that asking to have a bond lowered, or reviewed, also gave the judge a chance to raise it. In other words, just by asking for a change in bond, a defendant risked the judge saying, “I guess you’re right, Mr. Tarrell, this bond isn’t quite right. I think $25,000 is more appropriate.” While this didn’t happen often, I knew some judges would punish you for “wasting” their time. I also knew that the level of a person’s bond determined where they were placed in jail, so that the prisoners with the highest bonds were grouped together. So, while a person who wanted to get out of jail obviously wanted to ask the judge to reconsider their bond, this person also risked having the judge raise it, and this could mean that the prisoner was moved to a different “mod” in the jail, where their access to jobs or to treatment programs changed. I didn’t want to try to help someone and then end up hurting them inadvertently.
With all the cases and clients I had to deal with, I had to pick and choose carefully when I scheduled bond reviews and other pretrial motions. If real help didn’t appear likely, it wasn’t worth my time and effort. There were plenty of things to work on, but no time to waste on slim chances. Richard wasn’t going anywhere for awhile, even if he thought he should be. I knew I would see him at the jail on Tuesday to explain where he stood and what he likely faced.
Tuesday was my “jail day,” meaning that I had no appointments scheduled with clients and, hopefully, no court appearances. This day gave me a chance to visit clients who were in jail, to copy and review police reports, to prepare for trials or motion hearings, and to complete the paralyzing amount of administrative paperwork that seemed inevitable and never-ending when working for the government. However, every week it seemed like at least one case was accidentally scheduled on my jail day or one client just couldn’t wait another day to come see me or to get into court. In short, what always started out to be a day to catch up usually ended up like any other day in the public defenders office: putting out the biggest fires as you charged from one catastrophe to the next.
On Tuesday morning I checked the jail section of my file drawer and faxed a list of prisoners to the jail so they could be brought down into the “bullpen,” or holding cell, to await my visit. When Richard walked out in his orange jumpsuit and plastic shower slippers, which were given to every prisoner, I was very surprised as the person before me looked nothing like what I expected. Richard was very slight, about fifty, with very pale skin that made him blend in with the jail’s dull, “institutional gray” walls. He led the way into the visiting room, which consisted of three slightly portioned areas each with one small table and two plastic patio chairs.
This was actually the overflow visiting room- there were three individual rooms for attorney visits- but I’d learned long ago that this overflow area was both faster and safer than the small, cramped private rooms. Richard and I didn’t have much privacy, and while this may have been bad for his case, it was preferable for me. Better to get to know Richard out here, where it was safe, than get into a room with him and discover that he was dangerous. I loved being a public defender but my first priority was always my own safety. I wanted to make it back home tonight and back to work tomorrow, in other words, and I tried to avoid any risk that I could.
When we were “alone” in the small cubicle, Richard shook my hand enthusiastically and began to smile, as if in this small safe haven in the middle of the jail he could act like himself again. He told me his age, that he was single (his skin looked as if he’d been married to alcohol for a couple decades) and that he had a master’s degree in English literature. I had one of these myself, but I didn’t tell him this. Instinctually, rather than professionally, I sensed that I shouldn’t share details of my personal life with my clients unless I absolutely had to or grew to completely trust them. Thus, no pictures of my wife or my two daughters appeared in my office. I enjoyed working with and helping my clients, but I didn’t share much information. You never knew when one of these “small time criminals” would grow into a big time killer. The less they knew about me as a person, the better, especially at first.
Richard told me, without using the words, that his life had spun out of control since his mother died two years ago. First, he started drinking heavily again, after about seven years of sobriety. I had heard that alcoholics who took years off always came back to it with a renewed passion, and Richard looked like the poster child for this rumor. Richard lost his telemarketing job as his drinking escalated, but he described this as a blessing. He was a smart alcoholic who was stuck working in a dead-end job. I wondered if I would have been driven to drink if I would have had to remain in the type of jobs that had put me through college. Is there something about having to say “do you want fries with that?” when you’re in your thirties or having to call people at home when you’re in your forties that would drive any American worker to numb themselves with booze?
Richard had numbed himself, had lost his apartment in west Omaha, and moved to a cheap place in a bad neighborhood. Even if he would have been sober in this area, he would have been a target because of his age and build. But he was rarely sober and that made him a “predatee” in the midst of predators who were both streetwise and either sober or influenced by drugs that didn’t make you pass out or stumble home. Richard told me he had been robbed by a cabdriver who had listened to his story and promised to drop him off and then drive to the store to get him some groceries. Richard gave the driver his last twenty bucks and, of course, the guy was never seen again. I wondered if Richard had indeed been ripped off or if he just passed out while waiting for his groceries. Maybe his grocery order was perhaps a loaf of bread and another bottle of cheap vodka. Either way, Richard’s hazy memory and slurred speech pattern, after seven days in jail told me that his version of events had to be taken with a gallon of salt.
True to form, Richard didn’t remember much about his D.U.I. charge, only that he hadn’t been far from home and that he was really drunk. I hadn’t yet seen the police reports that detailed his arrest, so I wrote down what little he remembered. He was also charged with failure to appear, meaning that he’d allegedly missed a court appearance that was required for this case. When he told me why, I realized why he didn’t remember much about the night he was arrested, or about the last few months in general. Shortly after Richard was arrested for D.U.I., he was picked up, while extremely drunk, at his apartment and placed in the county hospital’s detox center. After he sobered up a day or so later, he was brought before the County Board of Mental Health (B.M.H.) and ordered to be involuntarily committed to a psychiatric facility for major depression and alcoholism.
He remembered his public defender who argued, unsuccessfully, on his behalf at this hearing. Richard remembered this lawyer clearly and was sure he would be remembered too. He told me to ask this attorney about his case, but I knew that this was but one of a few hundred “B.M.H.” cases this attorney had argued. While it was a major event for Richard, it was one of several that his Public Defender had argued that day and one of several hundred that had gone through since that time. Three months was a long time ago with our caseload and thus the file would be more reliable than the attorney’s memory at this point. Still, I told Richard I’d ask his old public defender about the case and told myself to do so only if I happened to run into this veteran attorney in the hallway. I promised Richard I wouldn’t forget about him and as we said good bye, he looked at me the way a puppy in the dog pound would look at a new, prospective owner. He was pathetic, incapable of caring for himself, and badly in need of legal assistance. Even in this state, he was doing better than the bureaucracy, which had ordered him to be in court, then ordered him to be in the hospital, and then jailed him for not being in court when he was in the hospital.
Back at the office, I checked the file and found out Richard went straight back to the county hospital after he was committed there by the Board of Mental Health. From there he spent six weeks in inpatient alcohol treatment and two weeks at the “Regional Center” where he was evaluated and treated for psychiatric problems. After this, it was the Greyhound bus back to Omaha and, from the looks of it, straight to the liquor store.
Richard’s father had paid his rent while he was away, so Richard was able to return to his tiny apartment, at least for a few days. Then early one morning, the police knocked on his door and took him, partially dressed and without a coat, back to another county-run facility, jail. While he was committed to the hospital by the County Board of Mental Health, the County Judge, who didn’t know this, had issued a warrant for Richard’s arrest after he missed his scheduled court appearance on the D.U.I. charge. Richard tried to explain that he’d been involuntarily committed by the state, but he had not been quick or sober enough to grab any documentation of this when he was arrested.
I contacted the facilities where Richard had been sent and verified that he was telling the truth. After I found this out, I scheduled a bond review hearing to explain this mix-up to the judge. Since I was armed with names and could swear to the court that Richard’s explanation had checked out, Richard’s chances of getting out of jail were greatly improved. However, he was still facing his second D.U.I. in a twelve month period and was unable to post any money for bond. This told me that Richard’s best bet for getting out of jail was to change this bond review hearing into an early plea. If the police reports showed me that the state had a good case against Richard, I could see if he wanted to plead guilty to the D.U.I. charge in exchange for the state dismissing his other charges and recommending either probation or a straight jail sentence that Richard could possibly serve at home, under house arrest.
Getting Richard probation would serve him well today by letting him go home, but I had to think of the long-term effects probation would have on him. If he couldn’t comply with the terms, he would likely end up serving more jail time than if he had simply asked for a “straight” sentence right now. Sometimes judges appreciated it when a defendant was honest with them about whether there was a genuine desire to successfully complete probation. Judges who suspected that a defendant asked for probation simply to get out of jail, and then wasted the court’s, the probation office’s and the public defender’s time, could usually count on a harsher sentence than if they had simply been honest with the judge at sentencing.
On the morning of Richard’s bond review hearing, I spoke with the prosecutor about how much resistance he would put up as I requested that Richard’s bond be lowered. At this point, Richard had been in jail eight days and I knew this would be a good time to negotiate a plea bargain as the prosecutors would like to get rid of this case instead of simply addressing the bond. Since the statute for second offense drunk driving required at least two days in jail if a defendant received probation and at least thirty days in jail if not, I suspected this prosecutor would be willing to go a little easy on Richard since he had just returned from an inpatient alcohol treatment program. (Of course, I didn’t tell him I suspected Richard had already “fallen off the wagon”)
The prosecutor offered to remain silent about the sentence, and not make any recommendation, which meant that I had a good chance of convincing the judge to give Richard the minimum thirty days in jail. I didn’t want to see Richard get probation because I knew he’d violate it. As much as I wanted him to get help with his alcohol problem, my job was to minimize the damage that the legal system could do to him. Having looked into his helpless eyes, I hoped he’d get sober soon, but I suspected that if he had to get sober or go back to jail, he’d be back in an orange jumpsuit as soon as the system caught up with him again. Better to cut him loose without any obligations hanging over his head. Maybe this time in jail would be a wake-up call to him. I wouldn’t bet on it, though, and thus I didn’t want to risk having him sit for ninety instead of thirty days.
When Richard was led into the courtroom, I had a couple minutes to explain the plea bargain to him. I whispered that I thought he could get thirty days and have the matter be over and done with, but then I added, as I’m ethically required to, that if he took probation he could probably go home today. I have an ethical obligation to explain all plea offers to clients and I have to let them make up their own minds. However, in cases like Richard’s, I also strongly advised my clients to choose the option that would be the easiest to live with. I didn’t think Richard could live with probation because I didn’t think he was ready or able to live without alcohol.
I had to be the voice of reason for my clients, especially those who were, like Richard, in jail and wanting out yesterday. I knew almost everyone in his position chooses the option that gets them home the quickest, without thinking very hard about the long term risks. My job was to look out for his legal interests, to minimize the damage that could be done to him, so I had to explain that a straight sentence had a definite end, while a sentence of probation could end up costing him up to ninety days in jail in the future.
Of course Richard wanted a chance at probation, even after I cautioned him and told him I didn’t think he’d make it. I got the sense that made this choice under some duress. He was a very slight, very white man and undoubtedly jail had been rough on him. Like a child, he didn’t think his options through very deeply; he just chose the path that would keep him safe for today. Months in the future were like a lifetime to him, especially if he had to sit them out in jail. He wanted to either get away from the pain of concrete jail or really wanted to get back to the pleasure of the plastic bottle.
I didn’t know have much time to get him to change his mind. The judge called the case up to the bench and I had to quickly change from being Richard’s voice of reason to being his advocate. I warned him about the risks and now it was time to try to get him the chance he wanted. I explained to the judge what I knew about why he drank, how willing he was to get help, and how the judge would be helping him continue what his treatment program had (hopefully) started. I told the court about Richard’s college degree, his master’s of fine arts degree (in creative writing!) and about Richard’s swift decline following his mother’s death. I knew that humanizing a client- telling about his specific failures and successes in life- made it more difficult for a judge to slam him in jail. Hopefully, hearing about Richard’s higher education would persuade the judge to look at Richard as more than just another orange-suited failure and would paint him instead, as he truly was, as a addict who was trying to numb himself from the pain of this world.
I knew it would work and it did. It wasn’t so much my argument as the fact that most judges realize, through looking at the stream of alcoholics and addicts who come before the bench, that probation is usually the best place for a drug addict to start. Not only would the judge have a hammer to raise against Richard for the next year on probation instead of only the next ninety days in jail, but Richard would have to provide a urine sample each month for the next year. If he didn’t clean up his lifestyle, and his urine, he would be back in jail as soon as they found him. This incentive to clean up, the judge undoubtedly thought, would equate drinking with jail in Richard’s mind and give him ninety reasons to stop killing himself slowly and risking others’ lives suddenly.
As additional “incentives,” Richard had to pay a $600 fine and attend one Alcoholics Anonymous meeting each week for the next year. He also had to appear in about six months at a “show cause” hearing, where he would have to show why he shouldn’t go to jail. I hoped this day would be a celebration for Richard, but I suspected it would be a day when he went back into the place he was about to leave. As he was led away, Richard beamed, excited about not having to spend another night in the “stony lonesome.” I hoped for the best for Richard and moved on to other cases.
Several weeks later, a letter appeared in my mailbox with Richard’s return address typed on the top. In it, Richard pointed out in great detail how he detested twelve step program like A.A., how he had seen an investigation into their rates of relapse, and how he only needed stress management classes to give up drinking. It looked as if he’d typed to eight or so page letter on an old typewriter, the kind where the uneven letters lined up like the footprints of a wandering drunk. The dents in the paper showed that the typist had been forcing the old keys down hard, taking out their frustrations in the word’s meanings and in the letter’s depth on the page. I knew this meant trouble in Richard’s near future because the judge had handed him an absolute gift of one free A.A. meeting per week, and now Richard wanted to eliminate this gift from his list of meager requirements. I knew this attitude would start Richard off on the wrong foot with his probation officer and, justifiably, possibly lead to a new charge of violation of probation. Three weeks into a probationary period was no time to second guess the judge who just took a chance on you. If Richard didn’t grasp this simple truth, he was either too stubborn or too sick to successfully finish his probation. I had plenty of other new cases to worry about so I filed the letter away and hoped for the best.
I rarely answered my phone. The calls from current and former clients, from people who’d heard about you at jail, or from crack or meth heads who had no one to call but their public defenders, meant that the phone rang constantly and rarely brought a question that hadn’t previously been addressed. But once in a while, I picked up the receiver. A few weeks after I got Richard’s letter, I picked up my phone. No one was there and as I started to set it down, I heard a grunt that sounded like someone had fallen and couldn’t get up. It was Richard. He moaned and yelled into the phone, then calmed down and told me his name, in case I hadn’t guessed already. Then he told me his name again and yelled, not at me and not in a language that I understood, but uncontrollably, the way a street bum yells at the “government.”
Richard was very mad at something and it was painfully obvious that he would be testing positive lor alcohol at his next probation meeting, if he didn’t drink himself to death tonight. I tried to calm him down, and he said the most pathetic thing a person has ever said to me. He said, “I love you.” He didn’t say it as a compliment and I didn’t get the impression that he had the hots for me. He said it as if he was trying to pick himself up off the floor by saying something positive, the way some people would cry out for Jesus. He said it as if that was the only thing he had left in his house that wasn’t about to kill him. I don’t even think Richard knew who he’d called- he probably found my number lying around his house. He sounded as if he was too drunk to even know his own name, let alone mine. Soon the voice was quiet, and I hung up. I didn’t know what to do. As a fellow human being I wanted to call the police, the ambulance, the landlord at least. But, as a lawyer, I had been trained to think before I acted and to let intellect override instinct.
Whenever I didn’t know what to do, I found a senior attorney, who’d been there for a lot longer than me, and asked them what to do. I was worried, but I also knew that I had to think “like a lawyer” and be cool-headed instead of passionate. Leslie kept a cool head most times, when she wasn’t in trial, so I asked her in the hallway. “Unfortunately,” she said, “being drunk is a client confidence.” “You’re his lawyer, not his friend and you can’t do anything that’s going to get him violated on his probation. Your best bet- your only bet- is to let it go. If he violates, he violates, but you can’t turn him in, even if it means having to hang up on him when he’s lying on the floor.”
Maybe someday I would develop skin thick enough to carry out this advice without worrying and staying awake at night wondering whether I did the right thing and whether being a lawyer meant letting somebody drink themselves to death. I knew she was right, though; I knew I couldn’t justify turning in one of my clients in the name of helping them. I was playing a role in this drama and I couldn’t step out of character, at this stage, without paying a steep, professional price. Being Richard’s lawyer meant that I had to play my role and let other people play theirs. Other people were supposed to be monitoring Richard, checking up on him and reporting to the judge. Since I had started Richard’s drama as his lawyer, I couldn’t change roles until it was over. I took Leslie’s advice and let it go. I stayed awake a little late that night, but I had plenty of other cases to worry about and a lot of experience with worries
Richard made it through the night, but he didn’t make it through probation. He came back to court mad as hell that he’d ever been put in a twelve step program. He said something again about only needing stress management, but he backed off pretty quickly when I told him that it was too late for that. He was sentenced to serve fifty eight more days in jail. I don’t know if he had an apartment to go back to and I never saw nor heard from Richard again. He did what few clients do. He vanished. I hoped it was because he moved or got sober or got help with stress management. I am not sure I even want to know where Richard ended up. I suspect that I know what happened, but there’s still a glimmer of hope that maybe he’s o.k. somewhere. That’s the best way for my contact with Richard to end. I don’t want to know what really happened. It’s better to think of what could have happened. That hope keeps me safe, and keeps me from ending up where Richard probably did.
Copyright, David Tarrell, All Rights Reserved, 2006
The message, like a lot of them, went on for a few minutes and from it, and from the computer system, I figured out that Richard was charged with second offense drunken driving, or D.U.I., driving left of center, and driving under suspension. There was not much I could do for Richard in the short term since the bond, $1000 cash, was not that high for a second offense D.U.I., especially considering that his first D.U.I. had come just over one year ago. His bond was not likely to come down to zero, where a person like Richard could afford it.
I could have scheduled a bond review hearing, by filling out a form and filing it. This would have placed Richard and myself back before the judge who originally set his bond. The only problem was that asking to have a bond lowered, or reviewed, also gave the judge a chance to raise it. In other words, just by asking for a change in bond, a defendant risked the judge saying, “I guess you’re right, Mr. Tarrell, this bond isn’t quite right. I think $25,000 is more appropriate.” While this didn’t happen often, I knew some judges would punish you for “wasting” their time. I also knew that the level of a person’s bond determined where they were placed in jail, so that the prisoners with the highest bonds were grouped together. So, while a person who wanted to get out of jail obviously wanted to ask the judge to reconsider their bond, this person also risked having the judge raise it, and this could mean that the prisoner was moved to a different “mod” in the jail, where their access to jobs or to treatment programs changed. I didn’t want to try to help someone and then end up hurting them inadvertently.
With all the cases and clients I had to deal with, I had to pick and choose carefully when I scheduled bond reviews and other pretrial motions. If real help didn’t appear likely, it wasn’t worth my time and effort. There were plenty of things to work on, but no time to waste on slim chances. Richard wasn’t going anywhere for awhile, even if he thought he should be. I knew I would see him at the jail on Tuesday to explain where he stood and what he likely faced.
Tuesday was my “jail day,” meaning that I had no appointments scheduled with clients and, hopefully, no court appearances. This day gave me a chance to visit clients who were in jail, to copy and review police reports, to prepare for trials or motion hearings, and to complete the paralyzing amount of administrative paperwork that seemed inevitable and never-ending when working for the government. However, every week it seemed like at least one case was accidentally scheduled on my jail day or one client just couldn’t wait another day to come see me or to get into court. In short, what always started out to be a day to catch up usually ended up like any other day in the public defenders office: putting out the biggest fires as you charged from one catastrophe to the next.
On Tuesday morning I checked the jail section of my file drawer and faxed a list of prisoners to the jail so they could be brought down into the “bullpen,” or holding cell, to await my visit. When Richard walked out in his orange jumpsuit and plastic shower slippers, which were given to every prisoner, I was very surprised as the person before me looked nothing like what I expected. Richard was very slight, about fifty, with very pale skin that made him blend in with the jail’s dull, “institutional gray” walls. He led the way into the visiting room, which consisted of three slightly portioned areas each with one small table and two plastic patio chairs.
This was actually the overflow visiting room- there were three individual rooms for attorney visits- but I’d learned long ago that this overflow area was both faster and safer than the small, cramped private rooms. Richard and I didn’t have much privacy, and while this may have been bad for his case, it was preferable for me. Better to get to know Richard out here, where it was safe, than get into a room with him and discover that he was dangerous. I loved being a public defender but my first priority was always my own safety. I wanted to make it back home tonight and back to work tomorrow, in other words, and I tried to avoid any risk that I could.
When we were “alone” in the small cubicle, Richard shook my hand enthusiastically and began to smile, as if in this small safe haven in the middle of the jail he could act like himself again. He told me his age, that he was single (his skin looked as if he’d been married to alcohol for a couple decades) and that he had a master’s degree in English literature. I had one of these myself, but I didn’t tell him this. Instinctually, rather than professionally, I sensed that I shouldn’t share details of my personal life with my clients unless I absolutely had to or grew to completely trust them. Thus, no pictures of my wife or my two daughters appeared in my office. I enjoyed working with and helping my clients, but I didn’t share much information. You never knew when one of these “small time criminals” would grow into a big time killer. The less they knew about me as a person, the better, especially at first.
Richard told me, without using the words, that his life had spun out of control since his mother died two years ago. First, he started drinking heavily again, after about seven years of sobriety. I had heard that alcoholics who took years off always came back to it with a renewed passion, and Richard looked like the poster child for this rumor. Richard lost his telemarketing job as his drinking escalated, but he described this as a blessing. He was a smart alcoholic who was stuck working in a dead-end job. I wondered if I would have been driven to drink if I would have had to remain in the type of jobs that had put me through college. Is there something about having to say “do you want fries with that?” when you’re in your thirties or having to call people at home when you’re in your forties that would drive any American worker to numb themselves with booze?
Richard had numbed himself, had lost his apartment in west Omaha, and moved to a cheap place in a bad neighborhood. Even if he would have been sober in this area, he would have been a target because of his age and build. But he was rarely sober and that made him a “predatee” in the midst of predators who were both streetwise and either sober or influenced by drugs that didn’t make you pass out or stumble home. Richard told me he had been robbed by a cabdriver who had listened to his story and promised to drop him off and then drive to the store to get him some groceries. Richard gave the driver his last twenty bucks and, of course, the guy was never seen again. I wondered if Richard had indeed been ripped off or if he just passed out while waiting for his groceries. Maybe his grocery order was perhaps a loaf of bread and another bottle of cheap vodka. Either way, Richard’s hazy memory and slurred speech pattern, after seven days in jail told me that his version of events had to be taken with a gallon of salt.
True to form, Richard didn’t remember much about his D.U.I. charge, only that he hadn’t been far from home and that he was really drunk. I hadn’t yet seen the police reports that detailed his arrest, so I wrote down what little he remembered. He was also charged with failure to appear, meaning that he’d allegedly missed a court appearance that was required for this case. When he told me why, I realized why he didn’t remember much about the night he was arrested, or about the last few months in general. Shortly after Richard was arrested for D.U.I., he was picked up, while extremely drunk, at his apartment and placed in the county hospital’s detox center. After he sobered up a day or so later, he was brought before the County Board of Mental Health (B.M.H.) and ordered to be involuntarily committed to a psychiatric facility for major depression and alcoholism.
He remembered his public defender who argued, unsuccessfully, on his behalf at this hearing. Richard remembered this lawyer clearly and was sure he would be remembered too. He told me to ask this attorney about his case, but I knew that this was but one of a few hundred “B.M.H.” cases this attorney had argued. While it was a major event for Richard, it was one of several that his Public Defender had argued that day and one of several hundred that had gone through since that time. Three months was a long time ago with our caseload and thus the file would be more reliable than the attorney’s memory at this point. Still, I told Richard I’d ask his old public defender about the case and told myself to do so only if I happened to run into this veteran attorney in the hallway. I promised Richard I wouldn’t forget about him and as we said good bye, he looked at me the way a puppy in the dog pound would look at a new, prospective owner. He was pathetic, incapable of caring for himself, and badly in need of legal assistance. Even in this state, he was doing better than the bureaucracy, which had ordered him to be in court, then ordered him to be in the hospital, and then jailed him for not being in court when he was in the hospital.
Back at the office, I checked the file and found out Richard went straight back to the county hospital after he was committed there by the Board of Mental Health. From there he spent six weeks in inpatient alcohol treatment and two weeks at the “Regional Center” where he was evaluated and treated for psychiatric problems. After this, it was the Greyhound bus back to Omaha and, from the looks of it, straight to the liquor store.
Richard’s father had paid his rent while he was away, so Richard was able to return to his tiny apartment, at least for a few days. Then early one morning, the police knocked on his door and took him, partially dressed and without a coat, back to another county-run facility, jail. While he was committed to the hospital by the County Board of Mental Health, the County Judge, who didn’t know this, had issued a warrant for Richard’s arrest after he missed his scheduled court appearance on the D.U.I. charge. Richard tried to explain that he’d been involuntarily committed by the state, but he had not been quick or sober enough to grab any documentation of this when he was arrested.
I contacted the facilities where Richard had been sent and verified that he was telling the truth. After I found this out, I scheduled a bond review hearing to explain this mix-up to the judge. Since I was armed with names and could swear to the court that Richard’s explanation had checked out, Richard’s chances of getting out of jail were greatly improved. However, he was still facing his second D.U.I. in a twelve month period and was unable to post any money for bond. This told me that Richard’s best bet for getting out of jail was to change this bond review hearing into an early plea. If the police reports showed me that the state had a good case against Richard, I could see if he wanted to plead guilty to the D.U.I. charge in exchange for the state dismissing his other charges and recommending either probation or a straight jail sentence that Richard could possibly serve at home, under house arrest.
Getting Richard probation would serve him well today by letting him go home, but I had to think of the long-term effects probation would have on him. If he couldn’t comply with the terms, he would likely end up serving more jail time than if he had simply asked for a “straight” sentence right now. Sometimes judges appreciated it when a defendant was honest with them about whether there was a genuine desire to successfully complete probation. Judges who suspected that a defendant asked for probation simply to get out of jail, and then wasted the court’s, the probation office’s and the public defender’s time, could usually count on a harsher sentence than if they had simply been honest with the judge at sentencing.
On the morning of Richard’s bond review hearing, I spoke with the prosecutor about how much resistance he would put up as I requested that Richard’s bond be lowered. At this point, Richard had been in jail eight days and I knew this would be a good time to negotiate a plea bargain as the prosecutors would like to get rid of this case instead of simply addressing the bond. Since the statute for second offense drunk driving required at least two days in jail if a defendant received probation and at least thirty days in jail if not, I suspected this prosecutor would be willing to go a little easy on Richard since he had just returned from an inpatient alcohol treatment program. (Of course, I didn’t tell him I suspected Richard had already “fallen off the wagon”)
The prosecutor offered to remain silent about the sentence, and not make any recommendation, which meant that I had a good chance of convincing the judge to give Richard the minimum thirty days in jail. I didn’t want to see Richard get probation because I knew he’d violate it. As much as I wanted him to get help with his alcohol problem, my job was to minimize the damage that the legal system could do to him. Having looked into his helpless eyes, I hoped he’d get sober soon, but I suspected that if he had to get sober or go back to jail, he’d be back in an orange jumpsuit as soon as the system caught up with him again. Better to cut him loose without any obligations hanging over his head. Maybe this time in jail would be a wake-up call to him. I wouldn’t bet on it, though, and thus I didn’t want to risk having him sit for ninety instead of thirty days.
When Richard was led into the courtroom, I had a couple minutes to explain the plea bargain to him. I whispered that I thought he could get thirty days and have the matter be over and done with, but then I added, as I’m ethically required to, that if he took probation he could probably go home today. I have an ethical obligation to explain all plea offers to clients and I have to let them make up their own minds. However, in cases like Richard’s, I also strongly advised my clients to choose the option that would be the easiest to live with. I didn’t think Richard could live with probation because I didn’t think he was ready or able to live without alcohol.
I had to be the voice of reason for my clients, especially those who were, like Richard, in jail and wanting out yesterday. I knew almost everyone in his position chooses the option that gets them home the quickest, without thinking very hard about the long term risks. My job was to look out for his legal interests, to minimize the damage that could be done to him, so I had to explain that a straight sentence had a definite end, while a sentence of probation could end up costing him up to ninety days in jail in the future.
Of course Richard wanted a chance at probation, even after I cautioned him and told him I didn’t think he’d make it. I got the sense that made this choice under some duress. He was a very slight, very white man and undoubtedly jail had been rough on him. Like a child, he didn’t think his options through very deeply; he just chose the path that would keep him safe for today. Months in the future were like a lifetime to him, especially if he had to sit them out in jail. He wanted to either get away from the pain of concrete jail or really wanted to get back to the pleasure of the plastic bottle.
I didn’t know have much time to get him to change his mind. The judge called the case up to the bench and I had to quickly change from being Richard’s voice of reason to being his advocate. I warned him about the risks and now it was time to try to get him the chance he wanted. I explained to the judge what I knew about why he drank, how willing he was to get help, and how the judge would be helping him continue what his treatment program had (hopefully) started. I told the court about Richard’s college degree, his master’s of fine arts degree (in creative writing!) and about Richard’s swift decline following his mother’s death. I knew that humanizing a client- telling about his specific failures and successes in life- made it more difficult for a judge to slam him in jail. Hopefully, hearing about Richard’s higher education would persuade the judge to look at Richard as more than just another orange-suited failure and would paint him instead, as he truly was, as a addict who was trying to numb himself from the pain of this world.
I knew it would work and it did. It wasn’t so much my argument as the fact that most judges realize, through looking at the stream of alcoholics and addicts who come before the bench, that probation is usually the best place for a drug addict to start. Not only would the judge have a hammer to raise against Richard for the next year on probation instead of only the next ninety days in jail, but Richard would have to provide a urine sample each month for the next year. If he didn’t clean up his lifestyle, and his urine, he would be back in jail as soon as they found him. This incentive to clean up, the judge undoubtedly thought, would equate drinking with jail in Richard’s mind and give him ninety reasons to stop killing himself slowly and risking others’ lives suddenly.
As additional “incentives,” Richard had to pay a $600 fine and attend one Alcoholics Anonymous meeting each week for the next year. He also had to appear in about six months at a “show cause” hearing, where he would have to show why he shouldn’t go to jail. I hoped this day would be a celebration for Richard, but I suspected it would be a day when he went back into the place he was about to leave. As he was led away, Richard beamed, excited about not having to spend another night in the “stony lonesome.” I hoped for the best for Richard and moved on to other cases.
Several weeks later, a letter appeared in my mailbox with Richard’s return address typed on the top. In it, Richard pointed out in great detail how he detested twelve step program like A.A., how he had seen an investigation into their rates of relapse, and how he only needed stress management classes to give up drinking. It looked as if he’d typed to eight or so page letter on an old typewriter, the kind where the uneven letters lined up like the footprints of a wandering drunk. The dents in the paper showed that the typist had been forcing the old keys down hard, taking out their frustrations in the word’s meanings and in the letter’s depth on the page. I knew this meant trouble in Richard’s near future because the judge had handed him an absolute gift of one free A.A. meeting per week, and now Richard wanted to eliminate this gift from his list of meager requirements. I knew this attitude would start Richard off on the wrong foot with his probation officer and, justifiably, possibly lead to a new charge of violation of probation. Three weeks into a probationary period was no time to second guess the judge who just took a chance on you. If Richard didn’t grasp this simple truth, he was either too stubborn or too sick to successfully finish his probation. I had plenty of other new cases to worry about so I filed the letter away and hoped for the best.
I rarely answered my phone. The calls from current and former clients, from people who’d heard about you at jail, or from crack or meth heads who had no one to call but their public defenders, meant that the phone rang constantly and rarely brought a question that hadn’t previously been addressed. But once in a while, I picked up the receiver. A few weeks after I got Richard’s letter, I picked up my phone. No one was there and as I started to set it down, I heard a grunt that sounded like someone had fallen and couldn’t get up. It was Richard. He moaned and yelled into the phone, then calmed down and told me his name, in case I hadn’t guessed already. Then he told me his name again and yelled, not at me and not in a language that I understood, but uncontrollably, the way a street bum yells at the “government.”
Richard was very mad at something and it was painfully obvious that he would be testing positive lor alcohol at his next probation meeting, if he didn’t drink himself to death tonight. I tried to calm him down, and he said the most pathetic thing a person has ever said to me. He said, “I love you.” He didn’t say it as a compliment and I didn’t get the impression that he had the hots for me. He said it as if he was trying to pick himself up off the floor by saying something positive, the way some people would cry out for Jesus. He said it as if that was the only thing he had left in his house that wasn’t about to kill him. I don’t even think Richard knew who he’d called- he probably found my number lying around his house. He sounded as if he was too drunk to even know his own name, let alone mine. Soon the voice was quiet, and I hung up. I didn’t know what to do. As a fellow human being I wanted to call the police, the ambulance, the landlord at least. But, as a lawyer, I had been trained to think before I acted and to let intellect override instinct.
Whenever I didn’t know what to do, I found a senior attorney, who’d been there for a lot longer than me, and asked them what to do. I was worried, but I also knew that I had to think “like a lawyer” and be cool-headed instead of passionate. Leslie kept a cool head most times, when she wasn’t in trial, so I asked her in the hallway. “Unfortunately,” she said, “being drunk is a client confidence.” “You’re his lawyer, not his friend and you can’t do anything that’s going to get him violated on his probation. Your best bet- your only bet- is to let it go. If he violates, he violates, but you can’t turn him in, even if it means having to hang up on him when he’s lying on the floor.”
Maybe someday I would develop skin thick enough to carry out this advice without worrying and staying awake at night wondering whether I did the right thing and whether being a lawyer meant letting somebody drink themselves to death. I knew she was right, though; I knew I couldn’t justify turning in one of my clients in the name of helping them. I was playing a role in this drama and I couldn’t step out of character, at this stage, without paying a steep, professional price. Being Richard’s lawyer meant that I had to play my role and let other people play theirs. Other people were supposed to be monitoring Richard, checking up on him and reporting to the judge. Since I had started Richard’s drama as his lawyer, I couldn’t change roles until it was over. I took Leslie’s advice and let it go. I stayed awake a little late that night, but I had plenty of other cases to worry about and a lot of experience with worries
Richard made it through the night, but he didn’t make it through probation. He came back to court mad as hell that he’d ever been put in a twelve step program. He said something again about only needing stress management, but he backed off pretty quickly when I told him that it was too late for that. He was sentenced to serve fifty eight more days in jail. I don’t know if he had an apartment to go back to and I never saw nor heard from Richard again. He did what few clients do. He vanished. I hoped it was because he moved or got sober or got help with stress management. I am not sure I even want to know where Richard ended up. I suspect that I know what happened, but there’s still a glimmer of hope that maybe he’s o.k. somewhere. That’s the best way for my contact with Richard to end. I don’t want to know what really happened. It’s better to think of what could have happened. That hope keeps me safe, and keeps me from ending up where Richard probably did.
Copyright, David Tarrell, All Rights Reserved, 2006
Darius
I recognized the name “Darias Johnston” when I pulled the five new client files down from my mailbox. I had represented Darias on a previous driving during suspension charge and I knew him as a trustworthy, fiftyish African-American gentleman who worked as a freelance mechanic in North Omaha. I ordered the police reports, noticing that Darias was charged with assault, disorderly conduct, and discharging a gun within the city limits. That didn’t sound like the Darias I knew from before, but put the file aside until I got the police reports about ten days later.
The reports looked bad, as they almost always did. Several witnesses had heard and seen Darias shoot a gun at an eighteen-year old boy as the boy ran from Darias’ house. The report stated that a witness told the police that Darias was mad about the boy dating his daughter.
I met with Darias about a week after I received the police reports and he told a different story. He came home to the house he shared with his girlfriend and her three kids at about 7:00 at night. His girlfriend was at the hairdressers, but he could hear the music coming from one of the kids’ bedrooms. It was loud enough that they could not hear his knock, so he opened the door to tell them to turn the music down. When he opened the door he saw his girlfriends’ three teenage kids, their cousin Antoine and a couple kids from the neighborhood. He also smelled marijuana, as he had several times in the past when Antoine was around.
Darias yelled at the unknown kid who was playing with the stereo. When that kid finally turned the music down, Darias asked who was smoking pot, but nobody owned up to it. Darias asked Antoine if he was the one, and Antoine “got smart with him.” I asked Darias what he meant by this and he explained that the boy called him “a female dog” and told Darias he could “whoop his ass.” Darias told him to leave (not in those exact words, I’m sure) and followed him down the stairs, telling him “get on out the door” and not to come back.
On his way out, Antoine grabbed a ceramic vase off the kitchen table and threw it at Darias’ head. Darias ducked, the vase shattered against the wall, and Antoine ran outside, slamming the front door behind him. Darias followed him out, yelling at him not to come back.
According to Darias, he picked up a snow shovel that was laying on the front porch, held it up and told Antoine not to come back around. Darias said that the loud bang described by the witnesses was the heavy iron door being slammed.
The police picked Darias up about fifteen minutes after they were called as Darias was driving away from the house in his pickup truck. The truck was searched, and Darias was arrested, but no guns or snow shovels were found.
It is difficult to know who to believe in a situation like this. Darias told me there was no gun and he struck me as someone who had lived honestly and whose face and eyes told the truth. But I also knew that Darias was a survivor who had been educated far from the insulated suburbs. To him, I was probably just another white man in a tie who grew up far from his home and who worked for the County- the same County that ran the jail and the courts. I couldn’t blame Darias if he chose to test out the snow shovel story on me to see whether the judge- who would probably be another white man or a carefully-chosen person of color- would believe it.
I gave Darias my usual speech about how I could get in trouble for disclosing anything that he told me about the case and how it was important that we get everything out on the table now, so we didn’t have any surprises at trial. “I give you advice based on what you tell me. So if you don’t tell me everything or tell me something that’s not true, my advice is going to be bad. I have to know about all the details so I can be ready for trial. If there are bad things that are going to come out at trial, I need to know about them now so I can be prepared for them.” I told him, without mentioning names, about the client who ended up in jail because he told me the truth in the middle of a trial, when it was too late to change his fate and too late to deal with what the witnesses had to say. “That man went to jail over a case that could have ended with a small fine,” I told Darias, hoping that he would not want to end up like this guy and would tell me what he knew so hat I could tell him how best to deal with it.
But Darias stuck to his guns, or to his snow shovel. When I asked him how the witnesses could have heard a gunshot, he said, in a way that made me believe him and want to help him: “I can’t speak for them other folks. All I know is that I don’t own no guns and I didn’t have no gun that night.” Darias was a mechanic, and he struck me as the kind of man you’d want to work on your car. He couldn’t read or write but he was smart enough not to speculate on what somebody else would say or why they would say it. He didn’t waste his breath trying to convince me that they were lying and he wasn’t. He either told me the truth or didn’t trust me with it. He wanted a trial and wanted to put his word against theirs that no gun was drawn or shot that night.
It was Darias’ life and not mine that would be affected by the trial, one way or the other. I believed him, or rather believed in him, and would help him tell his story about the snow shovel. I didn’t’ suspect that he was lying and he didn’t give me any indication that he was. It was my job to advise him about how to proceed in his case. If he was comfortable going to trial when the police report and the witness list showed several people who told the police they saw him with a gun, then so was I.
Reading this, in the safety of a book, it probably sounds as if Darias had a gun and now wants to lie about it in court. It probably also sounds like I was willing to help him commit this “second sin” in the courtroom. After all, three people in the police report allegedly told the police they saw Darias with a gun. How could three people be mistaken, you might be asking, and how could I think of taking Darias’s case to trial when three eyewitnesses would have to be painted as mistaken or lying in order to win?
The answer to these questions is that life is different in the part of town where most of my clients came from. In the suburbs, it’s easy (and overly tempting for most people) to assume that the police rarely lie and that three eyewitnesses couldn’t all be mistaken. But I had seen enough of a courtroom to know that a cop writing about three eyewitnesses and a prosecutor producing them at trial were two very different things. I knew that often police reports are written not as an investigation of what happened but as preparation for convicting someone, as if the real trial took place on the street and the courtroom was just a rubber stamp process. Some of the police that I dealt with would put their own spin on what a witness said based on who they were trying to convict. I was familiar with at least a few officers who believed so strongly in the “truth” of a suspect’s guilt that they weren’t afraid to lie to get a conviction.
I also knew that witnesses- especially in Darias’s neighborhood- couldn’t always be counted on to tell the police the whole truth and nothing but. Some people would have an “ax to grind” and would say anything to protect a family member, a friend or someone who could later give them something they wanted. Good cross examination could bring this bias to light in court. Only a few judges I appeared in front of seemed to care about how bias often brings lies into court, so I was hoping Darias drew one of these judges for his trial.
Just as witnesses couldn’t always be counted on to speak the truth to the police, they often didn’t ever make it to court to speak to the judge. Some people would say whatever the police wanted to hear and then never appear in court, perhaps being cooperative with the police as possible to avoid a possible arrest or check for warrants themselves. Prosecutors tended to view not showing up in court as fear of revenge by the accused, but I thought there were often other explanations behind this. Sometimes people didn’t care about a case, weren’t intimidated by a subpoena, or didn’t want to take time off of work. Sometimes it was group loyalty, as if a person from Darias’s neighborhood coming to the courthouse to help the police put a neighbor in jail was only necessary when people got shot and not when they just got shot at. Whatever the reason, witnesses, especially in relatively low level cases like Darias’s, often stayed away from the courtroom. This made me want to see who showed up before I gave up on Darias’s case based on what the officer wrote down.
Darias wanted a trial, it was his right, and I told him that having one was a good idea, as long as he would help me, and himself, by making sure we could get witnesses at trial so we could counterattack, and hopefully counterattack, the state’s case against him. I also knew that this was a good case to take to trial because, even if Darias was lying about picking up a shovel, I knew that we went to trial, we could show the judge what came before the alleged gunshot / snow shovel climax. If Darias simply pleaded guilty to any of the charges, he would not get as good of a chance to explain why he finally snapped and picked up the snow shovel (or the gun.) I also knew that Darias would be a good witness. He had a job despite not being able to read and would appear honest to the judge. Besides that, Darias assured me that one of the witnesses had seen Antoine throw the vase, had heard him swearing, and had heard him talking about getting high that night. Another witness listed on the police report, Darias told me, was a neighborhood kid who would say anything for Antoine- his older, role model friend. Darias didn’t think this boy had even been at the house that night, at least not until after the police arrived.
About a week before trial, I finally caught Darias’s “star witness” Lakeisha at home. She was Darias’s girlfriend’s daughter and had seen the whole incident. My eyes lit up when she told me that she heard Antoine talking about getting high that night, that his eyes were red and bloodshot, and that she’d seen him throw the vase at Darias’s head. She even described Antoine as trying to fight with Darias and told how it was Antoine, not Darias, who was the aggressor that night. She sounded confident about what she had seen and heard and, at this point, I thought of her as a great witness who could help me win Darias’s case outright.
But good witnesses often cut both ways. The more I spoke with her, the deeper she cut into Darias’s case. Lakeisha was confident that Antoine provoked Darias, but also confidently told me that she saw Darias go to his truck when he got outside and that she heard a loud bang right after this. She didn’t see him with a gun, had never known him to own a gun, but somehow a loud bang had come from the general direction of his truck. This caused Antoine, who was by then standing in the street yelling at Darias, to run away for good. Lakeisha would be a good witness initially, but on cross examination, even a mediocre prosecutor could make his case with her words. She cut both ways, in other words, and would help us show that Darias had a reason to be mad but would also help the prosecutors show what Darias most likely did when he got mad that night. I decided to send her a subpoena and then let Darias decide, on his trial date, whether he wanted to risk calling her as a witness.
I understood Darias’ snow shovel story at this point, even though I didn’t believe it anymore and knew the judge wouldn’t either. Even though I was his lawyer, Darias probably saw me as another white man who lived in the suburbs and never knew what it was like to live in his neighborhood. He probably thought that if he told the truth, no judge or lawyer would understand and that these people would only send him to jail. He had his story and he was going to stick to it.
It occurred to me that Darias had probably simply had enough, had gone to his truck and had shot the gun in the air to show this kid that he also had a breaking point. I wished Darias would have called the police that night, before he lost his temper, but I’d never even been to Darias’s neighborhood, even in daylight. If he had called the police, I would have been defending Antoine on a charge of disorderly conduct or destruction of property. The thought of Antoine go to jail seemed to be a more just outcome, but I probably wouldn’t have seen it this way if it was Antoine sitting across from me.
I didn’t have time to think about what ifs. Darias was looking at up to eighteen months in jail if the trial didn’t go well. He was also one of those clients who made you proud to be a public defender because he couldn’t afford to hire a private attorney to tell his side of the story. Darias’ story needed to be told well because the prosecution, with the power of the police on its side, would be labeling this eighteen year old, vase-throwing, pot-smoking punk as a helpless victim being chased by my gunwielding client. I knew Darias was no angel, but he was also not the black-hatted villain the state would melodramatically describe him as. There was culpability or guilt on both Antoine and Darias’ part in this case, but Antoine hadn’t pulled out a gun and had won the race to call 911. What Antoine wanted to do with the vase that night was what he would be trying to do to Darias in court: knock the old man out of the picture so he could get high and get to the old man’s daughter. I was not going to let that happen to Darias, at least not without a fight.
Trial was held on a Monday. The judge, growing impatient with a long day in court, called out “State v. Darias Johnston” and all ten or so of us walked up to the bench. The witnesses were “sequestered,” or sent out into the hall to keep them from hearing each others’ testimony. That left only the lawyers, the testifying witness, Darias, and a few spectators standing before the judge.
The first witness was Antoine. He was about my height and looked older than his eighteen years. When he talked, though, he seemed not as tough as his expression tried to be, and he seemed a little humbled by the courtroom and its formality. He told of boldly defending himself against this crazed old man, as the prosecutor asked him questions. He admitted to throwing the vase, but insisted that it was in self defense after Darias had pushed him down. He also told of Darias pointing a rifle at him as he stood in the street. I knew this image would be a hard one to get out of the judge’s head, even if we could show what led up to this.
My first question for Antoine was, “you were smoking a little marijuana that night, weren’t you?” He tried to act shocked, and denied it, as if he was not the type to smoke pot. However, his expression, if it could have spoken, seemed to be saying “damn, why’d he ask about that?” I asked this question first because I wanted to start off on a strong note, wanted him to know I wasn’t going to allow him to lie, and wanted to see if he would show the judge the temper Darias told me about. It didn’t work as well as I had planned because Antoine regained his cool and hung onto it throughout the questioning. He didn’t come across as totally truthful, especially about the marijuana and the vase, but also didn’t show himself to be a hothead who fought against all authority. After Antoine testified, the State had started to show both what I was afraid of and what I wanted the judge to see: the prosecution made it look like Darias grabbed a gun but also that he probably had a good reason for grabbing it.
The next witness for the state was the fifteen-year-old boy who would say anything for Antoine. Lakeisha told me that he had been there that night but that he hadn’t been close to the house when the gun supposedly went off. He was only fifteen, but he had a marijuana conviction on his record. I couldn’t introduce this conviction, but I could impeach him with it if he denied ever smoking marijuana. He told me that he and Antoine were not smoking marijuana that night, but admitted that he had in the past. He also said he saw a black object that looked like a rifle in Darias’s hands as he stood in the street. The kid also told of hearing a loud “bang” before he ran. I knew things were not going well for us, but also knew that it was not even “halftime” yet, and that there were many more stories to be told.
The police officer was next and was the last witness for the state. He hadn’t seen much that night and his report was based on what Antoine and others told him. I did not attack him, but only tried to show that he was unable to find a gun in a search of Darias’s car, house and yard. Still, I knew the judge wouldn’t have to hear about a gun being found to believe the witnesses who saw and heard it. The state rested and I was thankful that for once I did not have had to attack the police officer, as this sometimes came across as armchair quarterbacking a uniformed public servant.
The state’s witnesses established that a loud bang occurred, but they also revealed that they were not the kind of people who would listen to a command to leave a person’s house. The two kids also showed the judge that they were not being the best houseguests, smoking pot and throwing vases in Darias’ rented house.
I made a customary “halftime” motion to dismiss the case, knowing that it would undoubtedly be denied by Judge McCarthy. It was denied and I quickly asked Darias what he wanted to do. We talked earlier about whether he wanted Lakeisha called as a witness and we decided to wait and see how things went. I told Darias we didn’t have much to lose, but, looking back I shouldn’t have said “we.”
I called Lakeisha to the stand and she quickly blurted out that Antoine was “high” that night and the prosecutor quickly snapped, “objection, foundation.” The judge sustained or agreed with the objection and “struck” the Lakeisha’s remark from the record. This meant I had to backtrack and show that her conclusion that Antoine was “high” was reasonably accurate. I asked her if she was familiar with marijuana and its effects, if she had seen people before and after they had smoked it, and if she observed these effects on Antoine that night. The prosecution again objected but this time the judge let her answer stand. I considered this a small victory because now, even though the prosecution created a loud bang with their evidence that was difficult for us to explain, we had now hung a cloud over their case that probably wouldn’t affect the verdict but would undoubtedly help mitigate the sentence that followed. The judge, who was about Darias’s age, could place himself in Darias’ shoes and picture what it was like to come home to the smell of marijuana and the sound of a loudmouth punk under its influence, in your home.
Lakeisha went on to say that Darias never physically touched Antoine, even after Antoine hurled the vase at his head. She told about an argument that started in her bedroom when Darias came in to tell them to turn the music down. According to her, Darias did ask Antoine if he was the one smoking marijuana, but she also said that Antoine “got smart” with Darias and called him an old “female dog.” I asked her what she meant by this, and told her she wouldn’t be in trouble for swearing in court, but she couldn’t bring herself to say the word. She went on to describe Darias telling Antoine to leave and following him down the stairs as he left. She said Antoine grabbed a vase off the kitchen table and barely missed Darias’s head. Still, she said, she never saw Darias lose his temper that night.
She talked fast, and she started talking about what happened outside, on the porch, before I could slow her down. I had always heard that if something bad has to come out about your client’s case, it should come from your client’s or your witness’ mouth, so you have a chance to explain it and don’t appear to be hiding it from the judge or jury. If you ignore an obviously damaging piece of evidence, the story goes, the other side can pull it out as evidence that your client is lying about the evidence and lying about his guilt. With this in mind, I let Lakeisha explain what she heard outside. She said she couldn’t see Darias at the time, but that she heard a loud bang after she saw him walk to his truck. I knew this was bad for Darias, but also thought explaining it ourselves was better than letting the prosecution bring out this “bang” that she heard, on cross examination. Looking back, I think I gave the prosecution too much credit. They had their hands full that day and were probably not nearly as familiar with the case as I was. There was probably a good chance they would not have asked Lakeisha about what she had heard, but now I had done their work for them in trying to work for Darias.
Darias wanted to take the stand, and I knew that he would be a good witness. He told me he could not read or write, and, before trial, I noticed that he couldn’t even spell out his daughter’s names when I asked him about them. Sometimes, though, people without much formal education come across as more credible than the Harvard-educated expert or the Armani-clad corporate attorney. Darias was a mechanic who learned to read engines by the way they hummed. He was credible to the judge because he didn’t try to be slick and spoke as he was: a simple man with a simple explanation of what happened that night.
At one point, the prosecutor thought she had Darias pinned down in a lie. Darias was hard to understand and stated that he stopped to see his girlfriend’s “ladyfriend” on the way home, to fix her car as a favor. I heard him say this clearly, and I think the judge did too, but the prosecutor hadn’t heard him say “ladyfriend.” The prosecutor thought Darias contradicted himself, because he had previously told the judge that he hadn’t seen his girlfriend that night until after he argued with Antoine. The prosecutor then tried to make Darias look like a liar, by bringing up his earlier statements, but Darias calmly repeated what the judge and I had both heard. The result was that the educated prosecutor looked “slick” and manipulative in questioning the word of this simple working man. The truth was that the prosecutor had just heard him wrong, but it looked like she was trying to create a reason to attack him, as if she did not have a real reason for doing so.
Darias, on direct examination, told of grabbing a snow shovel off the front porch as Antoine yelled at him from the street. He denied it just as forcefully as he had in my office and denied having a gun ever, let alone that night. I thought this was a good note to end on, so I cut him short. The prosecution asked a few minor questions, and we rested.
The prosecution summarized by pointing out that three witnesses heard a loud bang that night and that we hadn’t explained this. I remembered Darias’ explanation that this was probably the iron storm door slamming, and concluded again that bringing this explanation into evidence would probably have hurt and not helped out Darias’s case. If we had discussed the “storm door excuse” it would have only reminded the judge that we had no real, plausible explanation for the bang several witnesses, including our own, heard.
When my turn came, I tore into Antoine and the boy’s lack of credibility. I asked the judge to put himself in Darias’ shoes, coming home after work to find some kids getting high with your daughter in your house. When he tells them to turn the music down, they refused, yelled and threw things at his head. I used this summary because at this point, a conviction was likely and these words were chosen not to claim innocence but to show justification. I knew a conviction was coming and was trying to cushion the blow. While I had the judge’s attention, I spoke about Darias’s innocence (“They hadn’t proven he had a gun”) but was really addressing Darias’s position (“These boys had it coming”).
I failed at beating the state’s case against Darias but succeeded in keeping him out of jail. The judge “split the baby,” finding Darias guilty of shooting a gun in the city limits, but not guilty of the assault and the disorderly conduct. The judge, a good one known to say in two sentences what some lawyers said in two pages, simply said, “I think you lost your temper. I order you to pay a $300 fine plus the court costs.”
Nearly everyone was happy with this verdict. The prosecutors got their conviction, the “victims” got to see Darias lose something, and I got some valuable trial experience that can only come from being in court. Darias was thrilled, but he didn’t let this show until we got outside. His had been a rough life, and he had probably expected to go to jail, at least for a little while, even if he was innocent. I didn’t know whether to take his reaction as a sign that he really shot his gun that night or simply as a relief that it was only money and not time that had to be paid. I took Darias’s smile as a rare, but fulfilling victory in itself, however.
Copyright, David Tarrell, All Rights Reserved, 2006
The reports looked bad, as they almost always did. Several witnesses had heard and seen Darias shoot a gun at an eighteen-year old boy as the boy ran from Darias’ house. The report stated that a witness told the police that Darias was mad about the boy dating his daughter.
I met with Darias about a week after I received the police reports and he told a different story. He came home to the house he shared with his girlfriend and her three kids at about 7:00 at night. His girlfriend was at the hairdressers, but he could hear the music coming from one of the kids’ bedrooms. It was loud enough that they could not hear his knock, so he opened the door to tell them to turn the music down. When he opened the door he saw his girlfriends’ three teenage kids, their cousin Antoine and a couple kids from the neighborhood. He also smelled marijuana, as he had several times in the past when Antoine was around.
Darias yelled at the unknown kid who was playing with the stereo. When that kid finally turned the music down, Darias asked who was smoking pot, but nobody owned up to it. Darias asked Antoine if he was the one, and Antoine “got smart with him.” I asked Darias what he meant by this and he explained that the boy called him “a female dog” and told Darias he could “whoop his ass.” Darias told him to leave (not in those exact words, I’m sure) and followed him down the stairs, telling him “get on out the door” and not to come back.
On his way out, Antoine grabbed a ceramic vase off the kitchen table and threw it at Darias’ head. Darias ducked, the vase shattered against the wall, and Antoine ran outside, slamming the front door behind him. Darias followed him out, yelling at him not to come back.
According to Darias, he picked up a snow shovel that was laying on the front porch, held it up and told Antoine not to come back around. Darias said that the loud bang described by the witnesses was the heavy iron door being slammed.
The police picked Darias up about fifteen minutes after they were called as Darias was driving away from the house in his pickup truck. The truck was searched, and Darias was arrested, but no guns or snow shovels were found.
It is difficult to know who to believe in a situation like this. Darias told me there was no gun and he struck me as someone who had lived honestly and whose face and eyes told the truth. But I also knew that Darias was a survivor who had been educated far from the insulated suburbs. To him, I was probably just another white man in a tie who grew up far from his home and who worked for the County- the same County that ran the jail and the courts. I couldn’t blame Darias if he chose to test out the snow shovel story on me to see whether the judge- who would probably be another white man or a carefully-chosen person of color- would believe it.
I gave Darias my usual speech about how I could get in trouble for disclosing anything that he told me about the case and how it was important that we get everything out on the table now, so we didn’t have any surprises at trial. “I give you advice based on what you tell me. So if you don’t tell me everything or tell me something that’s not true, my advice is going to be bad. I have to know about all the details so I can be ready for trial. If there are bad things that are going to come out at trial, I need to know about them now so I can be prepared for them.” I told him, without mentioning names, about the client who ended up in jail because he told me the truth in the middle of a trial, when it was too late to change his fate and too late to deal with what the witnesses had to say. “That man went to jail over a case that could have ended with a small fine,” I told Darias, hoping that he would not want to end up like this guy and would tell me what he knew so hat I could tell him how best to deal with it.
But Darias stuck to his guns, or to his snow shovel. When I asked him how the witnesses could have heard a gunshot, he said, in a way that made me believe him and want to help him: “I can’t speak for them other folks. All I know is that I don’t own no guns and I didn’t have no gun that night.” Darias was a mechanic, and he struck me as the kind of man you’d want to work on your car. He couldn’t read or write but he was smart enough not to speculate on what somebody else would say or why they would say it. He didn’t waste his breath trying to convince me that they were lying and he wasn’t. He either told me the truth or didn’t trust me with it. He wanted a trial and wanted to put his word against theirs that no gun was drawn or shot that night.
It was Darias’ life and not mine that would be affected by the trial, one way or the other. I believed him, or rather believed in him, and would help him tell his story about the snow shovel. I didn’t’ suspect that he was lying and he didn’t give me any indication that he was. It was my job to advise him about how to proceed in his case. If he was comfortable going to trial when the police report and the witness list showed several people who told the police they saw him with a gun, then so was I.
Reading this, in the safety of a book, it probably sounds as if Darias had a gun and now wants to lie about it in court. It probably also sounds like I was willing to help him commit this “second sin” in the courtroom. After all, three people in the police report allegedly told the police they saw Darias with a gun. How could three people be mistaken, you might be asking, and how could I think of taking Darias’s case to trial when three eyewitnesses would have to be painted as mistaken or lying in order to win?
The answer to these questions is that life is different in the part of town where most of my clients came from. In the suburbs, it’s easy (and overly tempting for most people) to assume that the police rarely lie and that three eyewitnesses couldn’t all be mistaken. But I had seen enough of a courtroom to know that a cop writing about three eyewitnesses and a prosecutor producing them at trial were two very different things. I knew that often police reports are written not as an investigation of what happened but as preparation for convicting someone, as if the real trial took place on the street and the courtroom was just a rubber stamp process. Some of the police that I dealt with would put their own spin on what a witness said based on who they were trying to convict. I was familiar with at least a few officers who believed so strongly in the “truth” of a suspect’s guilt that they weren’t afraid to lie to get a conviction.
I also knew that witnesses- especially in Darias’s neighborhood- couldn’t always be counted on to tell the police the whole truth and nothing but. Some people would have an “ax to grind” and would say anything to protect a family member, a friend or someone who could later give them something they wanted. Good cross examination could bring this bias to light in court. Only a few judges I appeared in front of seemed to care about how bias often brings lies into court, so I was hoping Darias drew one of these judges for his trial.
Just as witnesses couldn’t always be counted on to speak the truth to the police, they often didn’t ever make it to court to speak to the judge. Some people would say whatever the police wanted to hear and then never appear in court, perhaps being cooperative with the police as possible to avoid a possible arrest or check for warrants themselves. Prosecutors tended to view not showing up in court as fear of revenge by the accused, but I thought there were often other explanations behind this. Sometimes people didn’t care about a case, weren’t intimidated by a subpoena, or didn’t want to take time off of work. Sometimes it was group loyalty, as if a person from Darias’s neighborhood coming to the courthouse to help the police put a neighbor in jail was only necessary when people got shot and not when they just got shot at. Whatever the reason, witnesses, especially in relatively low level cases like Darias’s, often stayed away from the courtroom. This made me want to see who showed up before I gave up on Darias’s case based on what the officer wrote down.
Darias wanted a trial, it was his right, and I told him that having one was a good idea, as long as he would help me, and himself, by making sure we could get witnesses at trial so we could counterattack, and hopefully counterattack, the state’s case against him. I also knew that this was a good case to take to trial because, even if Darias was lying about picking up a shovel, I knew that we went to trial, we could show the judge what came before the alleged gunshot / snow shovel climax. If Darias simply pleaded guilty to any of the charges, he would not get as good of a chance to explain why he finally snapped and picked up the snow shovel (or the gun.) I also knew that Darias would be a good witness. He had a job despite not being able to read and would appear honest to the judge. Besides that, Darias assured me that one of the witnesses had seen Antoine throw the vase, had heard him swearing, and had heard him talking about getting high that night. Another witness listed on the police report, Darias told me, was a neighborhood kid who would say anything for Antoine- his older, role model friend. Darias didn’t think this boy had even been at the house that night, at least not until after the police arrived.
About a week before trial, I finally caught Darias’s “star witness” Lakeisha at home. She was Darias’s girlfriend’s daughter and had seen the whole incident. My eyes lit up when she told me that she heard Antoine talking about getting high that night, that his eyes were red and bloodshot, and that she’d seen him throw the vase at Darias’s head. She even described Antoine as trying to fight with Darias and told how it was Antoine, not Darias, who was the aggressor that night. She sounded confident about what she had seen and heard and, at this point, I thought of her as a great witness who could help me win Darias’s case outright.
But good witnesses often cut both ways. The more I spoke with her, the deeper she cut into Darias’s case. Lakeisha was confident that Antoine provoked Darias, but also confidently told me that she saw Darias go to his truck when he got outside and that she heard a loud bang right after this. She didn’t see him with a gun, had never known him to own a gun, but somehow a loud bang had come from the general direction of his truck. This caused Antoine, who was by then standing in the street yelling at Darias, to run away for good. Lakeisha would be a good witness initially, but on cross examination, even a mediocre prosecutor could make his case with her words. She cut both ways, in other words, and would help us show that Darias had a reason to be mad but would also help the prosecutors show what Darias most likely did when he got mad that night. I decided to send her a subpoena and then let Darias decide, on his trial date, whether he wanted to risk calling her as a witness.
I understood Darias’ snow shovel story at this point, even though I didn’t believe it anymore and knew the judge wouldn’t either. Even though I was his lawyer, Darias probably saw me as another white man who lived in the suburbs and never knew what it was like to live in his neighborhood. He probably thought that if he told the truth, no judge or lawyer would understand and that these people would only send him to jail. He had his story and he was going to stick to it.
It occurred to me that Darias had probably simply had enough, had gone to his truck and had shot the gun in the air to show this kid that he also had a breaking point. I wished Darias would have called the police that night, before he lost his temper, but I’d never even been to Darias’s neighborhood, even in daylight. If he had called the police, I would have been defending Antoine on a charge of disorderly conduct or destruction of property. The thought of Antoine go to jail seemed to be a more just outcome, but I probably wouldn’t have seen it this way if it was Antoine sitting across from me.
I didn’t have time to think about what ifs. Darias was looking at up to eighteen months in jail if the trial didn’t go well. He was also one of those clients who made you proud to be a public defender because he couldn’t afford to hire a private attorney to tell his side of the story. Darias’ story needed to be told well because the prosecution, with the power of the police on its side, would be labeling this eighteen year old, vase-throwing, pot-smoking punk as a helpless victim being chased by my gunwielding client. I knew Darias was no angel, but he was also not the black-hatted villain the state would melodramatically describe him as. There was culpability or guilt on both Antoine and Darias’ part in this case, but Antoine hadn’t pulled out a gun and had won the race to call 911. What Antoine wanted to do with the vase that night was what he would be trying to do to Darias in court: knock the old man out of the picture so he could get high and get to the old man’s daughter. I was not going to let that happen to Darias, at least not without a fight.
Trial was held on a Monday. The judge, growing impatient with a long day in court, called out “State v. Darias Johnston” and all ten or so of us walked up to the bench. The witnesses were “sequestered,” or sent out into the hall to keep them from hearing each others’ testimony. That left only the lawyers, the testifying witness, Darias, and a few spectators standing before the judge.
The first witness was Antoine. He was about my height and looked older than his eighteen years. When he talked, though, he seemed not as tough as his expression tried to be, and he seemed a little humbled by the courtroom and its formality. He told of boldly defending himself against this crazed old man, as the prosecutor asked him questions. He admitted to throwing the vase, but insisted that it was in self defense after Darias had pushed him down. He also told of Darias pointing a rifle at him as he stood in the street. I knew this image would be a hard one to get out of the judge’s head, even if we could show what led up to this.
My first question for Antoine was, “you were smoking a little marijuana that night, weren’t you?” He tried to act shocked, and denied it, as if he was not the type to smoke pot. However, his expression, if it could have spoken, seemed to be saying “damn, why’d he ask about that?” I asked this question first because I wanted to start off on a strong note, wanted him to know I wasn’t going to allow him to lie, and wanted to see if he would show the judge the temper Darias told me about. It didn’t work as well as I had planned because Antoine regained his cool and hung onto it throughout the questioning. He didn’t come across as totally truthful, especially about the marijuana and the vase, but also didn’t show himself to be a hothead who fought against all authority. After Antoine testified, the State had started to show both what I was afraid of and what I wanted the judge to see: the prosecution made it look like Darias grabbed a gun but also that he probably had a good reason for grabbing it.
The next witness for the state was the fifteen-year-old boy who would say anything for Antoine. Lakeisha told me that he had been there that night but that he hadn’t been close to the house when the gun supposedly went off. He was only fifteen, but he had a marijuana conviction on his record. I couldn’t introduce this conviction, but I could impeach him with it if he denied ever smoking marijuana. He told me that he and Antoine were not smoking marijuana that night, but admitted that he had in the past. He also said he saw a black object that looked like a rifle in Darias’s hands as he stood in the street. The kid also told of hearing a loud “bang” before he ran. I knew things were not going well for us, but also knew that it was not even “halftime” yet, and that there were many more stories to be told.
The police officer was next and was the last witness for the state. He hadn’t seen much that night and his report was based on what Antoine and others told him. I did not attack him, but only tried to show that he was unable to find a gun in a search of Darias’s car, house and yard. Still, I knew the judge wouldn’t have to hear about a gun being found to believe the witnesses who saw and heard it. The state rested and I was thankful that for once I did not have had to attack the police officer, as this sometimes came across as armchair quarterbacking a uniformed public servant.
The state’s witnesses established that a loud bang occurred, but they also revealed that they were not the kind of people who would listen to a command to leave a person’s house. The two kids also showed the judge that they were not being the best houseguests, smoking pot and throwing vases in Darias’ rented house.
I made a customary “halftime” motion to dismiss the case, knowing that it would undoubtedly be denied by Judge McCarthy. It was denied and I quickly asked Darias what he wanted to do. We talked earlier about whether he wanted Lakeisha called as a witness and we decided to wait and see how things went. I told Darias we didn’t have much to lose, but, looking back I shouldn’t have said “we.”
I called Lakeisha to the stand and she quickly blurted out that Antoine was “high” that night and the prosecutor quickly snapped, “objection, foundation.” The judge sustained or agreed with the objection and “struck” the Lakeisha’s remark from the record. This meant I had to backtrack and show that her conclusion that Antoine was “high” was reasonably accurate. I asked her if she was familiar with marijuana and its effects, if she had seen people before and after they had smoked it, and if she observed these effects on Antoine that night. The prosecution again objected but this time the judge let her answer stand. I considered this a small victory because now, even though the prosecution created a loud bang with their evidence that was difficult for us to explain, we had now hung a cloud over their case that probably wouldn’t affect the verdict but would undoubtedly help mitigate the sentence that followed. The judge, who was about Darias’s age, could place himself in Darias’ shoes and picture what it was like to come home to the smell of marijuana and the sound of a loudmouth punk under its influence, in your home.
Lakeisha went on to say that Darias never physically touched Antoine, even after Antoine hurled the vase at his head. She told about an argument that started in her bedroom when Darias came in to tell them to turn the music down. According to her, Darias did ask Antoine if he was the one smoking marijuana, but she also said that Antoine “got smart” with Darias and called him an old “female dog.” I asked her what she meant by this, and told her she wouldn’t be in trouble for swearing in court, but she couldn’t bring herself to say the word. She went on to describe Darias telling Antoine to leave and following him down the stairs as he left. She said Antoine grabbed a vase off the kitchen table and barely missed Darias’s head. Still, she said, she never saw Darias lose his temper that night.
She talked fast, and she started talking about what happened outside, on the porch, before I could slow her down. I had always heard that if something bad has to come out about your client’s case, it should come from your client’s or your witness’ mouth, so you have a chance to explain it and don’t appear to be hiding it from the judge or jury. If you ignore an obviously damaging piece of evidence, the story goes, the other side can pull it out as evidence that your client is lying about the evidence and lying about his guilt. With this in mind, I let Lakeisha explain what she heard outside. She said she couldn’t see Darias at the time, but that she heard a loud bang after she saw him walk to his truck. I knew this was bad for Darias, but also thought explaining it ourselves was better than letting the prosecution bring out this “bang” that she heard, on cross examination. Looking back, I think I gave the prosecution too much credit. They had their hands full that day and were probably not nearly as familiar with the case as I was. There was probably a good chance they would not have asked Lakeisha about what she had heard, but now I had done their work for them in trying to work for Darias.
Darias wanted to take the stand, and I knew that he would be a good witness. He told me he could not read or write, and, before trial, I noticed that he couldn’t even spell out his daughter’s names when I asked him about them. Sometimes, though, people without much formal education come across as more credible than the Harvard-educated expert or the Armani-clad corporate attorney. Darias was a mechanic who learned to read engines by the way they hummed. He was credible to the judge because he didn’t try to be slick and spoke as he was: a simple man with a simple explanation of what happened that night.
At one point, the prosecutor thought she had Darias pinned down in a lie. Darias was hard to understand and stated that he stopped to see his girlfriend’s “ladyfriend” on the way home, to fix her car as a favor. I heard him say this clearly, and I think the judge did too, but the prosecutor hadn’t heard him say “ladyfriend.” The prosecutor thought Darias contradicted himself, because he had previously told the judge that he hadn’t seen his girlfriend that night until after he argued with Antoine. The prosecutor then tried to make Darias look like a liar, by bringing up his earlier statements, but Darias calmly repeated what the judge and I had both heard. The result was that the educated prosecutor looked “slick” and manipulative in questioning the word of this simple working man. The truth was that the prosecutor had just heard him wrong, but it looked like she was trying to create a reason to attack him, as if she did not have a real reason for doing so.
Darias, on direct examination, told of grabbing a snow shovel off the front porch as Antoine yelled at him from the street. He denied it just as forcefully as he had in my office and denied having a gun ever, let alone that night. I thought this was a good note to end on, so I cut him short. The prosecution asked a few minor questions, and we rested.
The prosecution summarized by pointing out that three witnesses heard a loud bang that night and that we hadn’t explained this. I remembered Darias’ explanation that this was probably the iron storm door slamming, and concluded again that bringing this explanation into evidence would probably have hurt and not helped out Darias’s case. If we had discussed the “storm door excuse” it would have only reminded the judge that we had no real, plausible explanation for the bang several witnesses, including our own, heard.
When my turn came, I tore into Antoine and the boy’s lack of credibility. I asked the judge to put himself in Darias’ shoes, coming home after work to find some kids getting high with your daughter in your house. When he tells them to turn the music down, they refused, yelled and threw things at his head. I used this summary because at this point, a conviction was likely and these words were chosen not to claim innocence but to show justification. I knew a conviction was coming and was trying to cushion the blow. While I had the judge’s attention, I spoke about Darias’s innocence (“They hadn’t proven he had a gun”) but was really addressing Darias’s position (“These boys had it coming”).
I failed at beating the state’s case against Darias but succeeded in keeping him out of jail. The judge “split the baby,” finding Darias guilty of shooting a gun in the city limits, but not guilty of the assault and the disorderly conduct. The judge, a good one known to say in two sentences what some lawyers said in two pages, simply said, “I think you lost your temper. I order you to pay a $300 fine plus the court costs.”
Nearly everyone was happy with this verdict. The prosecutors got their conviction, the “victims” got to see Darias lose something, and I got some valuable trial experience that can only come from being in court. Darias was thrilled, but he didn’t let this show until we got outside. His had been a rough life, and he had probably expected to go to jail, at least for a little while, even if he was innocent. I didn’t know whether to take his reaction as a sign that he really shot his gun that night or simply as a relief that it was only money and not time that had to be paid. I took Darias’s smile as a rare, but fulfilling victory in itself, however.
Copyright, David Tarrell, All Rights Reserved, 2006
Alvin: One Client's Story
The first and only time I saw Alvin, he opened one of the double doors leading into the Public Defenders Office, walked up to me and stared intently at my chest. After he looked at one side and then the other he looked into my eyes and said, “I was looking for a name tag.” Alvin looked to be about seventy years old (I said sixty when he asked me to guess) and a tired-looking woman followed behind him as he walked behind me back to my office.
Alvin had on one of those hats that grandfathers in the Midwest often wear, the kind with a plastic button emblem sewed on the forehead area, a flat bill, and the ear flaps that can be pulled down in cold weather. He wore a heavy wool coat and his glasses were slightly fogged over, making it look like he just came in from a long walk in the cold.
It was a Friday afternoon and, after Alvin introduced himself, I remarked that I knew just a little about his case and that we had an appointment scheduled the next Monday. Alvin didn’t seem to catch the hint and, because the look on his wife’s face told me it hadn’t been easy for them to get here today, I agreed to take a few minutes to talk to them about Alvin’s case and upcoming trial.
There is sometimes an awkward silence between the time the door closed and I pull out the client’s file and pull up the information of the computer network. I usually break it by explaining that I will start off by asking them a few background questions before we talk about their case. Most clients are either so mad about the charges they face that they want to vent their frustrations on me as soon as my door closes or else they are so embarrassed to be in my office that they won’t say a word. I try to “break the ice” and set the tone for the interview by telling them that they will get their chance to vent in a minute and that they will do it in response to my questions, the way we would have to lay out the explanation, or excuse, for what happened in a trial.
I told Alvin that he was charged with shoplifting and that it carried a possible ninety days in jail but that he was very unlikely to go there given his clean record and age. His wife about fell over when I said “jail” but I calmed them both down by explaining that while jail was possible it was very unlikely and that if Alvin wanted a trial he could have one. It was up to him.
Alvin said, “Yeah, I want a trial and I want to take a lie detector test! I want to go just talk to the prosecutor or the judge or whoever and take a lie detector test so I can prove I didn’t steal anything. Can we set one up today?” I explained that we didn’t have a lie detector, that the prosecutors didn’t either and that the only one available was at the police station. I told Alvin that I believed him and that we could see about the lie detector later, when he got closer to trial. Inside I knew that while the police undoubtedly had one, we weren’t going to be able to use it for this misdemeanor case involving a theft of a $5 tool kit. Alvin was entitled to a free attorney but a lie detector test, the results of which would not be admissible at trial anyway, would have to be paid for out of Alvin’s own pocket. Rather than explain this to him and upsetting him even more, I postponed the issue and hoped he’d forget about lie detectors by our next meeting.
Alvin explained what happened. He was at the grocery store with his wife Dora when he wandered away from her, saw a tool kit on display. Thinking it would make a nice present for their son, Alvin picked it up and walked over to where Dora was pushing the cart to show it to her. He took about ten steps, tool kit in hand, when two security guards grabbed him, accused him of stealing and called the police. At first I was as surprised to hear this as Alvin probably was, wondering why a person could be stopped inside a store when they made no attempt to hide an item and he was obviously just looking for his wife. In my job, though, even though I was a new lawyer, I had learned quickly to believe my eyes and not my ears. I knew that people often lied, were mistaken or were just too old to remember things accurately. I appeared in front of an eighty-five year old judge all the time and I learned that, like a young child, the memory of an old man wasn’t always gospel.
As Alvin kept talking, it became clear that he was more than a little confused about what had happened that day during a routine shopping trip. He explained that he was well inside the store and that he was walking toward his wife while she waited in the checkout line when the security guards stopped him.
I looked over at Dora and saw the hint of an eye “rollback”, as if she didn’t agree with everything that Alvin was telling me. Her look was one of frustration and not mistrust, however, as if she remembered the situation differently and wished he did too. I asked Dora if this is how she remembered it and she told me that she had gone to the car, with the groceries, waited there for fifteen minutes, and then come back in the store to find Alvin being detained right by the front doors.
Something wasn’t right about Alvin’s description of what happened, but I didn’t detect any hint of dishonesty as Alvin ranted about how he just picked up the item, walked toward his wife and found himself in trouble. His tones, age, and body language told me he was innocent, but the description he gave showed me that someone was probably justified in thinking otherwise and charging him with shoplifting. But what could explain such a credible claim of innocence by Alvin and an attack on an old man by the store security? What was missing?
Alvin explained the story again, not in more detail, but in exactly the same words that he told me the first time, as if maybe I didn’t hear him and an exact repetition would help set him free. I asked him about his background and found out that he was actually in his early eighties and had been married for sixty years. Alvin went on to tell me that he retired from the packing house twenty years ago and he and his wife raised three sons together in South Omaha.
With this background, he obviously seemed an unlikely shoplifter. I had heard stories about socialite kleptomaniacs who appeared grand but who actually had records as thick as their bifocals. Alvin didn’t seem like one of these outwardly upstanding, inwardly criminal types, however. He didn’t have a spotless record, though, because one shoplifting charge had been filed, and later dismissed, some fifteen years earlier.
Dora, Alvin’s wife, sat quietly through the interview, only speaking when she was spoken to and occasionally sighing or rolling her eyes as Alvin told me about that day. She reluctantly told me that she waited in the car for Alvin and, only after I questioned her, told me that Alvin was right by the outside doors when she came back in to find him. She clearly did not want to contradict or embarrass her husband in front of me. As I pressed her for information, to see if she could verify what Alvin was telling me, she didn’t seem evasive, just preoccupied and perhaps overwhelmed. While Alvin seemed worried, she seemed to have weathered challenges like this before. I thought this was a strange reaction from a woman whose husband was facing a criminal charge, but went on with the interview.
Alvin told me more about his background, in more detail this time and would have rambled on for hours about the past if I hadn’t steered him back to today and to the day when he got in trouble at the store. He told me the year he bought his house, his retirement date, the year he graduated from high school, and even the location of this school, long since torn down.
I asked him some more questions about what happened in the store, hoping to be able to answer the many questions I had about this strange case. I wanted more details to answer the legal questions such as whether the prosecution could demonstrate an attempt to conceal the item or an attempt to leave without paying for it. Alvin started the story again, from the beginning, but told me, in almost the exact same words, what had happened to him. Dora spoke up this time: “You already told him that, Alvin!” and Alvin gave her a puzzled look, as if this were news to him. I had witnessed many clients telling the same stories over and over, as if trying to convince themselves and me of a story that explained their behavior, but Alvin was the first client I’d ever encountered who repeated things and yet didn’t remember telling me the first time.
Alvin paused, seemed to gather his thoughts, and then began telling the exact same story again, as if for the first time. Dora once again said, “You already told him that, Alvin!” and placed her finger on her temple. “Alvin’s been having trouble remembering things lately and Dr. Haeberle thinks it’s probably Alzheimer’s,” she said. I asked her for the name again, as the puzzle in this case suddenly became crystal clear. I knew that a note from a doctor with the word “Alzheimer’s” on it would help me get Alvin’s case dismissed and let Alvin and Dora go home without having to come back or worry about jail. Alvin chimed in and asked her, “don’t you mean Dr. Samuelson?” Dora’s face once again took on that weathered, yet patient look and she said, “Alvin, he’s been dead for twenty years, I mean your new doctor.”
Hearing this, and seeing the genuine look of puzzlement on Alvin’s face, suddenly showed me what had most likely happened. Alvin was probably standing inside the store, on his way out, when he picked up the tool kit and followed his wife as she walked to the car. In his private world of Alzheimer’s disease, he was simply following his wife, and on his way to show her, proudly, what he found for their son, not realizing that he was walking toward the exit with an item he hadn’t paid for. The tired look on Dora’s face, the honest old man with a shoplifting charge, suddenly made sense.
What didn’t make sense was that the case had gotten this far without anyone realizing we were dealing with brain disintegration and not sudden, octogenarian deviance. The only explanation I could think of for the store wanting to prosecute and the prosecutors following through was the fact that Alvin seemed lucid and intelligent until you spent about ten minutes with him and heard him repeat himself. The shoplifting charge from ten years ago probably convinced the prosecutors that they may have been dealing with a person who didn’t learn his lesson. I wondered if this latest charge didn’t represent the later stages of Alzheimer’s and the earlier charge didn’t signify the early stage, fifteen years ago.
From my brief experience in County Court, I knew that you could always talk to a prosecutor about a plea bargain, (since that made their job easier and kept their conviction rate high), but could rarely talk a prosecutor into dismissing a case, especially before the trial date. A lot of cases were dismissed on the day of trial, when witnesses didn’t show up in court, but very few were dismissed before trial, when there was little incentive for the prosecutors to do so.
Alvin’s case, since it involved Alzheimer’s disease, seemed like the case that would be the exception to this rule and be dismissed, but, like always, I was merely the one that was allowed to argue a position and not the one who decided the outcome. I would have to convince a prosecutor that Alvin should go home before he was able to.
I decided that rather than tell the prosecutor about Alvin, I show them him in the flesh. It was often more difficult to say no to a face than to a faceless police report, especially when the face looked old and innocent like Alvin’s. Alvin and Dora waited for me while I interviewed my other clients and the three of us went to the City Prosecutor’s Office over the lunch hour to make our pitch.
As we stepped into the crowded elevator, I knew our chances were good as long as one particular prosecutor was not assigned to the window over the lunch hour. Of course, as we turned the corner, there he was and it was too late to turn back without having him recognize what had “scared us off.” Besides that, even this prosecutor would recognize the difficulty they would have in proving an intent to steal against a man who was old and affected with a degenerative brain disease. David, the prosecutor, searched through the wall of file cabinets, found the police report that detailed the state’s case against Alvin, and glanced at Alvin’s brief prior record. “I see you were picked up for shoplifting in 1987 and the charges were dismissed? Do you remember that?” David patronized. Alvin couldn’t remember this (for once his ability to remember the past and forget the present failed him) and I quietly told the prosecutor that Alvin had recently been diagnosed with Alzheimer’s. I then asked the rhetorical question, “I wonder if maybe he’s actually had it for awhile?” I was hoping the prosecutor would see that no prior record for sixty five years and two theft charges in the last fifteen might be attributable to Alvin’s recent diagnosis. I asked Alvin to show the prosecutor his driver’s license, so this man could see that Alvin was over eighty now and was thus over sixty five when the last charges were filed.
“Well, the problem I have,” David slowly observed, taking advantage of all the power he had been given through his job, “is that we’ve already dismissed one of these charges.” He paused again, almost savoring the fact that he had a large part of this old man’s future in his hands. “Here’s what I’m willing to do for you,” he said. “I’m going to hold onto this case for awhile, and if you’re not picked up again, I will make it go away. But if you are, you’ll be going to jail.” I knew this was an idle threat, that it was the judge who would decide if the old man would go to jail, but I was willing to let Alvin have to hear it if it meant getting these charges dismissed. Of course, there was more to the prosecutor’s offer to Alvin.
“No more going shopping on your own, Mr. Cross.” David paused so that the words would sink in. Alvin looked puzzled and childlike, hearing that he could never look at another tool kit again. “Ever?” Alvin asked, pathetically, like a kid hearing a threat from an overpowering parent. “But how am I supposed to…”
“Ever!” interrupted the prosecutor. “You can’t leave her side. You can’t walk off and pick up things on your own anymore. You’ll have to just follow her around and if you see something, you let her pick it up. Do you understand me?”
I thought about interrupting and telling this prosecutor where he could put this threat, but I knew it was an idle one and that an outburst from me, at this point, would only hurt my client. I knew this because I had also seen the prosecutor write “dismiss” on his paperwork and I did not want to say anything to change this powerful man’s mind, especially when he had decided to let one of “my people” go home.
Alvin looked defeated as we walked away, but Dora looked relieved. She told him they could still go shopping, that they’d just stay close together and that he wasn’t going to get in any trouble or have to come back here ever again. She told him this wasn’t so much different than their current routine and that they could make it work. I told them that this was just an idle threat and that the important thing was Alvin’s current case was done. I started to explain to them that in a few months Alvin’s case would have to be dismissed, because of his right to a speedy trial, but simplified it and told them that if Alvin stayed by her side, in a few months, this case would be dismissed, even if the prosecutors got mad at him again.
We paused in the hallway and I carefully asked Alvin how he felt about what the prosecutor had done for him and to him. I thought he’d probably still be embarrassed or upset.
“Just fine!” Alvin told me, seeming to be puzzled as to why I even asked. Evidently Alvin’s Alzheimer’s-infected mind had already moved back two decades to times that were more easily understood and less painful to remember. Alvin and I shook hands and I knew probably never see him again and that it wouldn’t be long until I would read his name in the obituary section of the Sunday morning paper.
When I said goodbye to Dora, she hugged me as tightly as my own grandmother would. The look in her eyes was of such genuine gratitude that I suddenly realized that the real victim of Alzheimer’s wasn’t Alvin, it was her. Alvin was safely back in his old days, but she had to deal with the here and now, with the shopping and the shoplifting.
When I got back to the office, I set Alvin’s file off to the side and made a mental note to be at the hearing to make sure the charges were properly dismissed. Alvin and Dora had been through enough lately. I wanted to make sure they could truly forget about this case and simply deal with what their brief future together had to offer.
Note: I went to court and Alvin's case was dismissed, as it obviously should have been. A couple months later, I called Alvin, to see how he was doing. Sounding sad but almost relieved, Dora told me he was gone. Evidently his Alzheimer's was worse than even I imagined.
Alvin had on one of those hats that grandfathers in the Midwest often wear, the kind with a plastic button emblem sewed on the forehead area, a flat bill, and the ear flaps that can be pulled down in cold weather. He wore a heavy wool coat and his glasses were slightly fogged over, making it look like he just came in from a long walk in the cold.
It was a Friday afternoon and, after Alvin introduced himself, I remarked that I knew just a little about his case and that we had an appointment scheduled the next Monday. Alvin didn’t seem to catch the hint and, because the look on his wife’s face told me it hadn’t been easy for them to get here today, I agreed to take a few minutes to talk to them about Alvin’s case and upcoming trial.
There is sometimes an awkward silence between the time the door closed and I pull out the client’s file and pull up the information of the computer network. I usually break it by explaining that I will start off by asking them a few background questions before we talk about their case. Most clients are either so mad about the charges they face that they want to vent their frustrations on me as soon as my door closes or else they are so embarrassed to be in my office that they won’t say a word. I try to “break the ice” and set the tone for the interview by telling them that they will get their chance to vent in a minute and that they will do it in response to my questions, the way we would have to lay out the explanation, or excuse, for what happened in a trial.
I told Alvin that he was charged with shoplifting and that it carried a possible ninety days in jail but that he was very unlikely to go there given his clean record and age. His wife about fell over when I said “jail” but I calmed them both down by explaining that while jail was possible it was very unlikely and that if Alvin wanted a trial he could have one. It was up to him.
Alvin said, “Yeah, I want a trial and I want to take a lie detector test! I want to go just talk to the prosecutor or the judge or whoever and take a lie detector test so I can prove I didn’t steal anything. Can we set one up today?” I explained that we didn’t have a lie detector, that the prosecutors didn’t either and that the only one available was at the police station. I told Alvin that I believed him and that we could see about the lie detector later, when he got closer to trial. Inside I knew that while the police undoubtedly had one, we weren’t going to be able to use it for this misdemeanor case involving a theft of a $5 tool kit. Alvin was entitled to a free attorney but a lie detector test, the results of which would not be admissible at trial anyway, would have to be paid for out of Alvin’s own pocket. Rather than explain this to him and upsetting him even more, I postponed the issue and hoped he’d forget about lie detectors by our next meeting.
Alvin explained what happened. He was at the grocery store with his wife Dora when he wandered away from her, saw a tool kit on display. Thinking it would make a nice present for their son, Alvin picked it up and walked over to where Dora was pushing the cart to show it to her. He took about ten steps, tool kit in hand, when two security guards grabbed him, accused him of stealing and called the police. At first I was as surprised to hear this as Alvin probably was, wondering why a person could be stopped inside a store when they made no attempt to hide an item and he was obviously just looking for his wife. In my job, though, even though I was a new lawyer, I had learned quickly to believe my eyes and not my ears. I knew that people often lied, were mistaken or were just too old to remember things accurately. I appeared in front of an eighty-five year old judge all the time and I learned that, like a young child, the memory of an old man wasn’t always gospel.
As Alvin kept talking, it became clear that he was more than a little confused about what had happened that day during a routine shopping trip. He explained that he was well inside the store and that he was walking toward his wife while she waited in the checkout line when the security guards stopped him.
I looked over at Dora and saw the hint of an eye “rollback”, as if she didn’t agree with everything that Alvin was telling me. Her look was one of frustration and not mistrust, however, as if she remembered the situation differently and wished he did too. I asked Dora if this is how she remembered it and she told me that she had gone to the car, with the groceries, waited there for fifteen minutes, and then come back in the store to find Alvin being detained right by the front doors.
Something wasn’t right about Alvin’s description of what happened, but I didn’t detect any hint of dishonesty as Alvin ranted about how he just picked up the item, walked toward his wife and found himself in trouble. His tones, age, and body language told me he was innocent, but the description he gave showed me that someone was probably justified in thinking otherwise and charging him with shoplifting. But what could explain such a credible claim of innocence by Alvin and an attack on an old man by the store security? What was missing?
Alvin explained the story again, not in more detail, but in exactly the same words that he told me the first time, as if maybe I didn’t hear him and an exact repetition would help set him free. I asked him about his background and found out that he was actually in his early eighties and had been married for sixty years. Alvin went on to tell me that he retired from the packing house twenty years ago and he and his wife raised three sons together in South Omaha.
With this background, he obviously seemed an unlikely shoplifter. I had heard stories about socialite kleptomaniacs who appeared grand but who actually had records as thick as their bifocals. Alvin didn’t seem like one of these outwardly upstanding, inwardly criminal types, however. He didn’t have a spotless record, though, because one shoplifting charge had been filed, and later dismissed, some fifteen years earlier.
Dora, Alvin’s wife, sat quietly through the interview, only speaking when she was spoken to and occasionally sighing or rolling her eyes as Alvin told me about that day. She reluctantly told me that she waited in the car for Alvin and, only after I questioned her, told me that Alvin was right by the outside doors when she came back in to find him. She clearly did not want to contradict or embarrass her husband in front of me. As I pressed her for information, to see if she could verify what Alvin was telling me, she didn’t seem evasive, just preoccupied and perhaps overwhelmed. While Alvin seemed worried, she seemed to have weathered challenges like this before. I thought this was a strange reaction from a woman whose husband was facing a criminal charge, but went on with the interview.
Alvin told me more about his background, in more detail this time and would have rambled on for hours about the past if I hadn’t steered him back to today and to the day when he got in trouble at the store. He told me the year he bought his house, his retirement date, the year he graduated from high school, and even the location of this school, long since torn down.
I asked him some more questions about what happened in the store, hoping to be able to answer the many questions I had about this strange case. I wanted more details to answer the legal questions such as whether the prosecution could demonstrate an attempt to conceal the item or an attempt to leave without paying for it. Alvin started the story again, from the beginning, but told me, in almost the exact same words, what had happened to him. Dora spoke up this time: “You already told him that, Alvin!” and Alvin gave her a puzzled look, as if this were news to him. I had witnessed many clients telling the same stories over and over, as if trying to convince themselves and me of a story that explained their behavior, but Alvin was the first client I’d ever encountered who repeated things and yet didn’t remember telling me the first time.
Alvin paused, seemed to gather his thoughts, and then began telling the exact same story again, as if for the first time. Dora once again said, “You already told him that, Alvin!” and placed her finger on her temple. “Alvin’s been having trouble remembering things lately and Dr. Haeberle thinks it’s probably Alzheimer’s,” she said. I asked her for the name again, as the puzzle in this case suddenly became crystal clear. I knew that a note from a doctor with the word “Alzheimer’s” on it would help me get Alvin’s case dismissed and let Alvin and Dora go home without having to come back or worry about jail. Alvin chimed in and asked her, “don’t you mean Dr. Samuelson?” Dora’s face once again took on that weathered, yet patient look and she said, “Alvin, he’s been dead for twenty years, I mean your new doctor.”
Hearing this, and seeing the genuine look of puzzlement on Alvin’s face, suddenly showed me what had most likely happened. Alvin was probably standing inside the store, on his way out, when he picked up the tool kit and followed his wife as she walked to the car. In his private world of Alzheimer’s disease, he was simply following his wife, and on his way to show her, proudly, what he found for their son, not realizing that he was walking toward the exit with an item he hadn’t paid for. The tired look on Dora’s face, the honest old man with a shoplifting charge, suddenly made sense.
What didn’t make sense was that the case had gotten this far without anyone realizing we were dealing with brain disintegration and not sudden, octogenarian deviance. The only explanation I could think of for the store wanting to prosecute and the prosecutors following through was the fact that Alvin seemed lucid and intelligent until you spent about ten minutes with him and heard him repeat himself. The shoplifting charge from ten years ago probably convinced the prosecutors that they may have been dealing with a person who didn’t learn his lesson. I wondered if this latest charge didn’t represent the later stages of Alzheimer’s and the earlier charge didn’t signify the early stage, fifteen years ago.
From my brief experience in County Court, I knew that you could always talk to a prosecutor about a plea bargain, (since that made their job easier and kept their conviction rate high), but could rarely talk a prosecutor into dismissing a case, especially before the trial date. A lot of cases were dismissed on the day of trial, when witnesses didn’t show up in court, but very few were dismissed before trial, when there was little incentive for the prosecutors to do so.
Alvin’s case, since it involved Alzheimer’s disease, seemed like the case that would be the exception to this rule and be dismissed, but, like always, I was merely the one that was allowed to argue a position and not the one who decided the outcome. I would have to convince a prosecutor that Alvin should go home before he was able to.
I decided that rather than tell the prosecutor about Alvin, I show them him in the flesh. It was often more difficult to say no to a face than to a faceless police report, especially when the face looked old and innocent like Alvin’s. Alvin and Dora waited for me while I interviewed my other clients and the three of us went to the City Prosecutor’s Office over the lunch hour to make our pitch.
As we stepped into the crowded elevator, I knew our chances were good as long as one particular prosecutor was not assigned to the window over the lunch hour. Of course, as we turned the corner, there he was and it was too late to turn back without having him recognize what had “scared us off.” Besides that, even this prosecutor would recognize the difficulty they would have in proving an intent to steal against a man who was old and affected with a degenerative brain disease. David, the prosecutor, searched through the wall of file cabinets, found the police report that detailed the state’s case against Alvin, and glanced at Alvin’s brief prior record. “I see you were picked up for shoplifting in 1987 and the charges were dismissed? Do you remember that?” David patronized. Alvin couldn’t remember this (for once his ability to remember the past and forget the present failed him) and I quietly told the prosecutor that Alvin had recently been diagnosed with Alzheimer’s. I then asked the rhetorical question, “I wonder if maybe he’s actually had it for awhile?” I was hoping the prosecutor would see that no prior record for sixty five years and two theft charges in the last fifteen might be attributable to Alvin’s recent diagnosis. I asked Alvin to show the prosecutor his driver’s license, so this man could see that Alvin was over eighty now and was thus over sixty five when the last charges were filed.
“Well, the problem I have,” David slowly observed, taking advantage of all the power he had been given through his job, “is that we’ve already dismissed one of these charges.” He paused again, almost savoring the fact that he had a large part of this old man’s future in his hands. “Here’s what I’m willing to do for you,” he said. “I’m going to hold onto this case for awhile, and if you’re not picked up again, I will make it go away. But if you are, you’ll be going to jail.” I knew this was an idle threat, that it was the judge who would decide if the old man would go to jail, but I was willing to let Alvin have to hear it if it meant getting these charges dismissed. Of course, there was more to the prosecutor’s offer to Alvin.
“No more going shopping on your own, Mr. Cross.” David paused so that the words would sink in. Alvin looked puzzled and childlike, hearing that he could never look at another tool kit again. “Ever?” Alvin asked, pathetically, like a kid hearing a threat from an overpowering parent. “But how am I supposed to…”
“Ever!” interrupted the prosecutor. “You can’t leave her side. You can’t walk off and pick up things on your own anymore. You’ll have to just follow her around and if you see something, you let her pick it up. Do you understand me?”
I thought about interrupting and telling this prosecutor where he could put this threat, but I knew it was an idle one and that an outburst from me, at this point, would only hurt my client. I knew this because I had also seen the prosecutor write “dismiss” on his paperwork and I did not want to say anything to change this powerful man’s mind, especially when he had decided to let one of “my people” go home.
Alvin looked defeated as we walked away, but Dora looked relieved. She told him they could still go shopping, that they’d just stay close together and that he wasn’t going to get in any trouble or have to come back here ever again. She told him this wasn’t so much different than their current routine and that they could make it work. I told them that this was just an idle threat and that the important thing was Alvin’s current case was done. I started to explain to them that in a few months Alvin’s case would have to be dismissed, because of his right to a speedy trial, but simplified it and told them that if Alvin stayed by her side, in a few months, this case would be dismissed, even if the prosecutors got mad at him again.
We paused in the hallway and I carefully asked Alvin how he felt about what the prosecutor had done for him and to him. I thought he’d probably still be embarrassed or upset.
“Just fine!” Alvin told me, seeming to be puzzled as to why I even asked. Evidently Alvin’s Alzheimer’s-infected mind had already moved back two decades to times that were more easily understood and less painful to remember. Alvin and I shook hands and I knew probably never see him again and that it wouldn’t be long until I would read his name in the obituary section of the Sunday morning paper.
When I said goodbye to Dora, she hugged me as tightly as my own grandmother would. The look in her eyes was of such genuine gratitude that I suddenly realized that the real victim of Alzheimer’s wasn’t Alvin, it was her. Alvin was safely back in his old days, but she had to deal with the here and now, with the shopping and the shoplifting.
When I got back to the office, I set Alvin’s file off to the side and made a mental note to be at the hearing to make sure the charges were properly dismissed. Alvin and Dora had been through enough lately. I wanted to make sure they could truly forget about this case and simply deal with what their brief future together had to offer.
Note: I went to court and Alvin's case was dismissed, as it obviously should have been. A couple months later, I called Alvin, to see how he was doing. Sounding sad but almost relieved, Dora told me he was gone. Evidently his Alzheimer's was worse than even I imagined.
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