Monday, April 03, 2006


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 na├»ve 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

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