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.