Monday, April 03, 2006


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

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