Friday, March 28, 2008


When I represented Christine the first time, she was accused of throwing a pizza pan at the manager of the Italian restaurant where she worked. The fight started when the manager told Christine that they needed her to stay at work for an extra hour, to accommodate the rush of take-out orders that were coming in on a busy Saturday night. Christine got mad and, as she told me, threw the pizza pan “in the general direction” of the manager, but didn’t mean to hit or hurt her. Luckily, the pan missed the fleeing manager, but hit a table next to her.
When a different manager (the first one retreated into the office) told Christine she was fired and would have to leave, Christine “cussed him out” and then had to be escorted out of the restaurant. Once she was outside, Christine walked across the street and screamed things like “this isn’t fucking over” and “I’ll fucking kick your ass, you bitch.”
When the police pulled up in front of the restaurant, Christine was still across the street. She even waited patiently while the police interviewed several witnesses, all of whom pointed at her as they spoke. After awhile, the cops walked over, asked Christine who she was, and ticketed her for assault and battery and disorderly conduct. She told them the ticket was “fucking bullshit” and that she
I knew, even before I met Christine, that not even Clarence Darrow could save her from a disorderly conduct conviction. Disorderly conduct meant “fighting, threatening or violent acts,” so even if I could prove to the judge that Christine “didn’t mean” to throw the pizza pan at anyone, the prosecution could prove she was being disorderly about ten different ways for the various things she did and said that night, in front of many witnesses in a busy restaurant.
The assault and battery charge, however, was a different story. There wasn’t much to fight about- since “assault and battery” meant putting someone in “imminent fear of bodily harm”- but there was at least something to fight at trial, if need be. I knew, from talking to Christine and from reading the police reports, that she was in trouble. Since each charge carried exactly six months in jail, she was facing a bench, or judge, trial only. The judge she was stuck with, whoever it would be, would be understandably upset about a person throwing things at their employer. Besides that, what judge would want to upset the owners of a restaurant chain mad, especially in an election year? I knew that if the restaurant owners were “out for blood” the prosecutors, who were also led by an elected official, would blow this case way out of proportion.
Even though Christine’s aim wasn’t very good, she could still be looking at some jail time, perhaps even several months worth, unless I could some way to “push back.” Throwing yourself on the mercy of the politically sensitive court, who would be listening to the politically motivated prosecutors was like sending your troops into a battle you knew they wouldn’t survive. I would have to scratch and claw for a way to fight these charges to create an “insurance policy” for my client, in case things got ugly for Christine as I knew they could.
I worried about the trial and arrived early for court to prepare for it. When I called out the name of the manager/victim, I recognized her as someone I knew from the few times I’d eaten in the restaurant. Instead of being “out for blood” and upset as I’d feared, she was calm and collected. She told me how she felt sorry for Christine, how she knew Christine had not had an easy life. She even described Christine coming to work one year shortly after Christmas and telling her co-workers how she hadn’t received any presents. The manager took up a collection for her and managed to raise enough to buy a night in a hotel for Christine, so she and her friends could swim in the pool and have a holiday party. When I asked the manager whether she minded if the prosecutors dropped the assault and battery charge, she said “no, I just want her to get the help she needs.”
Having heard that, I knew half of Christine’s battle was over. Because the victim of the assault was not demanding jail time, and didn’t much care what the sentence would be, the prosecutors were probably not going to recommend jail either. They had a lot of cases to deal with that morning and they knew that my client would be more likely to plead guilty- and save them from having to conduct a time-consuming trial- if they recommended a sentence of either probation or a fine.
In the strange world of County Court, the victim of a crime held a lot of power over whether the case went to trial or resulted in a plea. On the surface, this might appear to be proper but it only haphazardly resulted in justice and frequently created injustice. The problem is that prosecutors- at least the ones I dealt with- are driven by politically-motivated bosses who either like their relatively high-paying civil service jobs or else use their offices to further their own political careers. Because of this mindset, they respond to “hot victims” who threaten to call the local “if it bleeds, it leads” television news station unless their demands for swift punishments are met.
Occasionally, victims’ demands were reasonable, but the reality is that the louder you complained to the prosecutors, the harder they would push to make sure the defendant went to jail. If you didn’t much care, either did they. If you punched someone, the punishment depended less on what you did than it did with how mad they were afterwards. This was not a recipe for justice since the prosecutors reacted to their victims instead of acting according to the severity of the crime that was committed.
Christine was lucky. Because the victim of her crime was not pushing hard for jail, the prosecutors were saving their time and energy for those cases in which the victims were upset and “out for blood.” I didn’t mind this in Christine’s case, since it was my job to minimize what would happen to her- but I knew that tomorrow this political wind could easily be blowing in the other direction. Tomorrow I could be in the same courtroom, with an even less culpable defendant and the same prosecutor could easily be demanding jail time, afraid of going against the victim’s wishes and possibly getting into trouble with the boss.
Of course, getting the prosecutors to recommend a particular sentence was only half of the battle. Christine still had to get past the judge. Judges were not bound to accept plea agreements and in County Court, we rarely had the time to speak to judges “off the record” to get a sense of whether they would go along with the prosecutor’s recommendation of the or not. In Omaha, County judges had it good. They were paid six figures, rarely worked more than thirty five hours each week, and had excellent retirement packages to look forward to. Of course, like most government employees, they constantly complained about the work, even to the Public Defenders who typically worked twice as hard for one third of the money.
The only thing a County Judge in Omaha had to worry about was a retention vote. Judges were not elected, but were appointed by the governor. Every four years they were subject to a “yes or no” vote, which was easy to survive since “losing” meant that more than half of the voters had to check “no” beside your name. If you managed to avoid controversy and thus kept your name out of the papers, you didn’t ever have to leave.
How do you avoid controversy as a County Judge? It’s pretty simple, really. You keep the conservative, crime control minded newspapers happy and you get tough on crime, especially when any politically powerful person is watching. You don’t stick your own neck out, even if you are simply following the law, and you rarely put yourself in a position where the press can characterize you as “soft on crime.”
Of course, the job is not any fun if you have to work hard and stay late. If you start being too “tough on crime” less defendants will enter guilty pleas and will instead start demanding time-consuming trials. How do you resolve this dilemma and keep your job easy while also keeping your job? Simple. You act tough and thorough toward criminal defendants when politically powerful people are paying attention and you accommodate criminal defendants who save you time by pleading guilty when no one is watching. If you are willing to be Machiavellian, you punish anyone who dares to assert their right to go to trial. That way, attorneys know that if their clients plead guilty, (and save you time) you’ll be easy on their clients. Of course you also have to show them what happens when they take up your time with a trial. You let them know that you will find their clients guilty and show them that the punishment inflicted after a trial is much greater than after a plea of guilty. Pretty soon, plea bargains are being struck and you are going home early. “The easiest job I ever had”, was how one judge, who left Enron to work in Douglas County Court, described it.
Christine was lucky. The judge she drew on her trial date was not Machavellian, lazy or even mean. This judge wouldn’t stick her neck out very far to impose a just sentence when the prosecutors went too far, but she also rarely departed from the prosecutor’s recommendation, even when the facts called for a stiffer punishment than was recommended. After I spoke with Christine and we walked up to the bench to enter the plea, I was pretty sure that she would be walking out the door without her hands cuffed behind her back.
Like every case, Christine’s began as the judge read Christine’s name, case number and charges into the record. The prosecutor then stated his name and position and then described the plea bargain Christine had previously agreed to. I then stated my name and confirmed that what the prosecutor said was indeed true. The judge then described the possible penalties, informed Christine about the rights she would be giving up and retaining through a plea of guilty. Finally the judge said those words that all County Court judges say and that scare every criminal defendant: “Do you understand that I am not required to adhere to the recommended sentence and that I can impose the maximum penalty here today?” The judge then asked Christine how she pleaded. Like many clients, Christine looked at me first and silently mouthed “no contest” asking me if she was saying the right thing. After I nodded, she said it, and the judge said “factual basis.”
Christine exhaled, as if the hard part were over, but I knew that even though her “speaking part” was behind her, the hard part of her case was just beginning. By asking for a “factual basis,” the judge was asking the prosecutor for a brief description of the facts so that she could determine whether a crime had truly been committed. Of course, another purpose- in a busy misdemeanor court setting- was so that the judge could decide what the appropriate punishment should be. I was nervous for Christine because I knew the police report contained a lot of information that could cause the judge to ignore what the prosecutor and defense were asking for and throw Christine in jail. I knew the prosecutor would minimize what happened as he summarized the facts that brought us here. After all, he would have looked lazy and lenient if he requested a fine and then described a full-fledged fiasco. However, I also knew that several things could go wrong. Judges usually asked to hear from victims when they were present in court so that they could not be accused in the press of every judges nightmare, being labeled as “soft of crime” or insensitive to victims. I knew that while the manager would ask for leniency for Christine that the judge might also ask her to describe what happened. If she told the whole story, the cuffs might just come out and around my client’s wrists. While I was afraid of this, I knew the chances of it occurring were slim. The prosecutor was not about to say anything that would make the judge think people nearly got hurt. The courtroom was busy and the judge would trust the prosecutor to bring any bad facts to her attention. Since he didn’t, she wouldn’t take the time to hear from the victims since he made it sound as if this were a minor misunderstanding.
What I was more afraid of was the police reports. With just a quick glance, the judge could read the report’s summary and see that someone nearly got hurt and that only my client’s bad aim prevented this. I tried to maintain a poker face, but I carefully watched the judge mark the reports by writing on the summary page. All she would have had to do was read one or two sentences to see that neither side had told her the truth about what happened.
It was a busy day, however, and the judge had plenty of other cases to deal with. She didn’t read the report and Christine didn’t go to jail. The judge followed the recommendation and fined Christine $50. Luckily for Christine, the truth had not come out and the person she aimed at didn’t push back very hard when it was her turn to throw something back. I told Christine how lucky she was, said goodbye and moved on to other cases, hoping my words might teach her a lesson she should have learned in court.
Two weeks later, I saw Christine’s name again, typed on a new file folder the secretary placed in my “in box.” This time she faced charges of drunk driving, speeding and disorderly conduct. When I reviewed the police report I read about Christine speeding through an intersection several blocks from my own house. The police followed her, clocked her at twelve miles over the speed limit, and then pulled her over. As I read the report, my job was to look for things to fight against, for reasons to go to trial, or for problems with the state’s case against Christine.
Police officers almost always wrote their reports so that it appeared, on the surface at least, as if the state’s case against this or that drunk driver was rock solid. What could clearly be seen as slight weaving of a vehicle on a videotape would be described as “crossing over the center line on several occasions” in a report. When the Supreme Court ruled that slurred speech and alcohol odor were pertinent factors contributing to a lawful arrest for drunk driving, every police report began describing these sights and smells at every stop. Since my job was to “police the police,” I had to look beyond the officer’s conclusions to the facts and then look what an excellent defense attorney described as the goal of every good defense lawyer: an alternative explanation consistent with innocence.
I saw several problems with the state’s case, but also several problems for Christine. The alcohol content of her breath was just barely over the legal limit, but some other things came out of her mouth that night worried me deeply. Like many of my clients, if she had kept her mouth shut, I could have done much more to help her. Since she didn’t, I wasn’t sure what would happen. According to the report, as Christine was being taken to the police station for a breath test, she said, “this is fucking bullshit” and “if I was a nig***, I’d sue you for prejudice.”
Even after I read this in the police report, I still didn’t think the state had much of a case against her. I don’t like people who use words like this, but I have to defend my clients even if I don’t like what they say or do. As much as I hate talk like this, I am even more repulsed at the possibility that a country that values freedom of speech could make such speech a crime. While we rightly criminalize shouting fire in a crowded theatre for the possible injury it could inflict on innocent people, if we criminalize the use of certain offensive words, we ignore our own first amendment right to free speech. As is often said, “I hate what they say, but I respect their right to say it.”
While the prosecutors characterized Christine’s use of the “n word” as disorderly conduct, I knew they would have a hard time convincing a judge of this. Disorderly conduct meant “fighting words” that would “incite an immediate breach of the peace” not stupid, racist comments that no one wanted to hear. Since Christine was alleged to have said these things to two trained officers while she was cuffed in a patrol car, a conviction was unlikely. Even if she was convicted of this charge at trial, she stood a good chance of getting her conviction overturned on appeal.
The case looked weak and winnable to me on the drunk driving charge as well. Nebraska law requires that any margin of error in the breath test be viewed in favor of the defendant. In other words, since Christine’s test was just slightly over the legal limit, I would argue that the margin of error made her test too close to call, especially when the standard of proof was beyond a reasonable doubt.
Knowing that there were several things to talk about at trial, I knew I could either use these issues to strike a favorable plea bargain for Christine or else try to win on these issues at trial. Since the speeding carried only a fine, with no possibility of jail, I hoped to keep Christine out of there, one more time.
There was only one problem. Christine drew Judge Luke for her trial. He was fair, but he was also black. Arguing that Christine should walk away from this incident- where she used the most hateful word a white person could use against a black one- with only a speeding ticket would be asking a lot of Judge Lowe. Still, I knew Christine stood a good chance of winning on appeal as long as I made a good record of the exact words that were said and the tests that were taken. As uneasy as I felt arguing to an African-American judge that my client’s use of the “N word” was not worthy of punishment, I had a job to do and an important role to play. Christine was undoubtedly wrong to use this word but it would be even more wrong to allow the government to criminalize its use. I hated her use of the word but loved being the one to defend her right to speak her mind.
When I walked into the courtroom, the prosecutor waved to me and pointed to the paperwork that made up her case against Christine. “Does she want to plead to the D.U.I?”, she asked. “I’ve got my officers here.”
“No, that’s going to be a trial.” I told her. “That test is way too low and I don’t think you can get a disorderly out of that either.” The prosecutor- a woman who was burned out on her job and taking only the path of least resistance toward the vesting of her retirement in a few years- gave me a pouting look as she sat silently. Drunk driving cases made for very time-consuming trials and this prosecutor, who made more than twice as much money as I did, didn’t want to work any harder than she had to. Knowing this, I added “but she’d plead to a willful reckless driving right now.”
I called out Christine’s name and signaled to her to meet me in the hallway. I could tell by the look on her face that she was scared. “The cops are both here,” she told me, as if this meant the end of her hopes. I told her this wasn’t a surprise, that she should still have a trial and that she had a good chance of winning. As I was telling her that even if she lost today she could appeal the case and possibly win later on, the prosecutor walked up behind us.
“How about this,” she said, motioning me away from my client so we could talk alone. “Your girl said some pretty bad stuff that might land her in jail if we have a trial. You might be able to win later, but you might lose too. How about if I send the officers home before she pleads and I don’t say anything about what she said when he asks for a factual basis.”
“Do you mean you push this case through quickly and you talk about that one word at all?” I asked.
“I think if he hears what she said, he’ll put her in jail,” the prosecutor said and I knew she had a point. “But if she pleads he won’t hear that word from me,” she continued. “Of course, if he finds out on his own, he might still put her in jail. But he won’t hear it from me.”
I didn’t know what to do. As much as I wanted to have a trial, I knew the judge had a lot of power and if Christine could not come up with some money for an appeal bond, she might have to sit in jail while I argued her appeal. I trusted the prosecutor more than most and knew she would keep her word about not uttering “the word.” However, I also knew that Judge Luke was very unpredictable. He went to a good law school but he also had more “street smarts” than most judges. If he thought the prosecutor was keeping something from him, he could ask her for the police reports, as a factual basis for the plea, so that he could read them for himself. If he did, I knew Christine would be in trouble.
Torn between my own lawyer sense that pushed toward a resolving these legal issues at trial and my own “street smarts” that pushed toward damage control and keeping this damaging information away from the judge, I asked the prosecutor one more time. “You sure you won’t bring up the word “nigger” at all?” She nodded and I told her I would ask my client what she wanted to do, mumbling all the while about words like this not even being a crime.
I wanted a trial, but it was Christine’s life and her choice. I am ethically required to tell my clients about any plea offer made by the prosecutors for exactly this reason. They get to choose, but I get to advise them about which choice to make. When I told Christine about this offer she asked me the question I didn’t want to hear. “What would you do?”, she said.
I gave her my usual answer. “It depends on how you want to live your life. Do you want to take the safe path or take a chance. I think personally you should take the chance, but if you want to take the safe way, the prosecutor won’t say anything about what you said to the cops. That alone might keep you out of jail. But remember, even if you plead and the prosecutor keeps quiet about what you said, the judge can still find out about it, if he looks for it.”
Christine was scared and the solutions I offered her all involved maybes. Maybe we would win at trial, maybe we would win on appeal and maybe the judge wouldn’t figure out what she said. I wished that it weren’t so, but I couldn’t read the judge’s mind or predict the future. I had to guess and guesses always meant taking chances.
\Like most of my clients, Christine just wanted to stay out of jail and get this over as quickly as possible. “I just want to get it over with today,” she said. “If they won’t talk about what I said when I was drunk, I’ll just plead to it.”
“You understand that he might find it anyway?” I asked her. “It could still come back to haunt you, even if you plead to it. You could still do up to sixty days in jail on the drunk driving charge. You know that, right?”
Like most criminal defendants, Christine was adept at math. I had told her that disorderly conduct carried up to six months in jail Sixty days maximum didn’t sound that bad, especially when the prosecutor would be telling the judge to sentence you to probation instead of putting you in jail.
As Christine and I walked up to the bench so she could enter her guilty plea to the drunk driving charge, I tried to maintain a poker face. I tried to act as if I wasn’t concerned in the least about what was in the report, as if this were just an ordinary drunk driving case. I hoped the busy judge would rush the case through quickly, just as Christine’s last judge had. I knew if he looked deeply into the case, or at least past the prosecutor’s and my own abbreviated, mutually beneficial version of the facts surrounding Christine’s arrest, things could go downhill quickly.
Judge Luke was very unpredictable. He might be in a hurry and rush through a case or he might hold up an entire courtroom to lecture a person about a seemingly trivial point if the fancy struck him. He might rush Christine’s case through quickly or he might sense that we weren’t telling him something. If you were a criminal defendant, you always wanted to go last in Judge Luke’s courtroom. If he had an audience, he might relish the chance to be on stage and to entertain them at your expense, or for your benefit, depending on how you looked at it.
When Judge Luke asked for a factual basis, the prosecutor did just what she promised. She said that Christine “acted a little disorderly toward the officers” but didn’t say anything about any racist language. I knew she was trying to satisfy the judge’s curiosity about why the discorderly conduct charge was added. If she had said nothing, he would have surely looked so she was trying to slide this information by him, just as she had promised to do.
Christine stood uneasily before the elevated judge as he reached out his hand to the prosecutor. “Do you wish to have the police reports marked?”, he asked. The prosecutor said yes, since that was the normal practice, but I saw her lay the stack of papers nonchalantly on the bench as if she were telling him that there was nothing important contained in them. She truly lived up to her end of the bargain and, as I held my breath, I held her in a little higher esteem for sticking to our agreement, above and beyond the call of duty.
The courtroom buzzed quietly with whispers, as the observers spoke with their lawyers or the police officers talked quietly among themselves. Rather than calling for complete silence, as some judges did, Judge Luke allowed people to talk, but could also command them to listen to him if he were to raise his powerful, quick voice. I heard this background buzz as I watched the Judge grasp the reports that described Christine’s stupid, drunk, racist comments. I watched out from the corner of my eye, as if there were nothing to hide, but I hoped for the quick exit, the swift passing of paper from the judge to the bailiff that would make all the difference to my client. If he wanted to move quickly , Christine would walk away easily today, but if he took just a few seconds to read what the officers had written, all bets were off and the judge would be on stage, with a lot to talk about.
The judge picked up the stapled papers, attached an exhibit sticker and filled in its blanks. I waited for him to pass them to the bailiff and to follow the recommendation of probation that was commonplace for a first time drunk driver. But he didn’t grant my wish. He slowly opened the reports and glanced at the words quickly. I was worried that perhaps he had seen the hateful words, but I was also hopeful that he couldn’t have taken in much information in the quick glance that he gave the papers. His eyes looked up to meet Christine’s as he let the papers fall back closed. The courtroom still buzzed, but the prosecutor, the defendant, and the defense attorney all stood silently, hoping that this black judge wouldn’t see what none of us wanted him to see.
“Young lady, I see that you got more than a little disorderly with the officers,” the judge said, scolding the prosecutor with a glance. The courtroom quieted, sensing that the judge wanted their full attention. I knew the jig was up, that the judge had seen the word I didn’t want him to see and that Christine would be handcuffed soon. The judge paused, then said, “I see that you told these officers that ‘if you were a nigger, you’d sue them for prejudice’, is that what you said?” Christine looked at her feet like a child caught red-handed. The courtroom was dead silent.
I frequently complained about Judge Luke’s unpredictability, but I had to admit the man could be dramatic when he wanted to be. People often told them he should be on t.v., that he had a way with words, and I knew what they meant. Today was no exception. “You might want to be careful about how you refer to African-American people in the future, young lady. You never know when you’re going to end up in front of one, one who has the power to put you in jail or send you home.”
The black-robed judge paused for at least fifteen seconds, letting this truth sink in to Christine’s deeply bowed head. I felt like minutes until he spoke again. “What I’m going to do, though, is give you a chance,” he said, pausing again to leave the audience wondering what this chance would be. “I’m going to go along with the probation, but I’m going to test you for drugs and alcohol. You’re going to control both what comes in your mouth and what comes out of it. Do you understand?”
Christine said, “Yes I do, your honor, I understand” meekly, like a beaten down recruit on the second day of boot camp. I knew Christine was getting probation and that she had already learned a lot. I also knew that Christine was not only broken down, she was also down and out. She had picked up two misdemeanor cases in just a few weeks. If she could not stay out of trouble for the next nine months, she would be in violation of her probation and without a doubt going to jail. I knew he sent her a strong and dramatic message but I didn’t know if she would be able to meet it. I could only hope and of course warn her about what would happen if she didn’t change her direction right now.
Christine was sentenced to probation and, as I walked her to the probation office, I warned her repeatedly about making sure she didn’t give Judge Lowe another reason to throw her in jail. “He won’t forget about you, after what you said, so if you blow probation, it won’t matter what I say to him. If you screw this up, he’ll hammer you.” Christine swore that she learned her lesson and promised to do everything he asked her to do.
I moved on to other cases and temporarily forgot about Christine in the rush of current clients, each with their own complicated legal and personal problems. Several months later, I saw her name again. It was typed on a notice sent to me telling me about a violation of probation hearing. Christine had only met with her probation officer once and had then blown off all the requirements. It was as if she either didn’t care about finally going to jail or as if she were out of control.
At the violation of probation trial, there was nothing for me to argue. Christine had violated her probation in at least eight ways and the prosecutors had only to prove one violation to convict her and allow the judge to sentence her to up to sixty days in jail. In the hallway, before she pleaded guilty, Christine told me she wanted to go to treatment for alcoholism. I hoped it was true and told her I would ask the judge for another chance. The look on her face this time was different. She seemed to be at the end of her rope. I became very familiar with “sentencing day converts” as a Public Defender as I watched people make false promises just to stay out of jail. The more people lied to me about wanting to go to treatment or about stopping the shoplifting or about doing well on probation, the less I believed in people in general.
But for some strange reason, I believed Christine. Her eyes told me she was serious about going to treatment, and my eyes read the letter she had from a treatment center that accepted her. I knew the judge wouldn’t give her that chance though, and I couldn’t blame him for this. I was her defender but he had to judge her. He had already been soft on her despite her racist language and asking for another chance felt like asking for too much.
It was my job to ask him for what my clients wanted or needed so I did it anyway. I knew the judge wouldn’t listen if I whined about what a rough life Christine had lived. I knew he heard this line every day. Instead, I cut right to the chase. I said that Christine didn’t deserve another chance but that she truly needed treatment. “She’s like water for chocolate,” I said. “She’s ready to go there and they have a bed with her name on it.” I hoped that if the judge didn’t listen that perhaps Christine would still go there after she got out of jail.
As expected, Judge Luke shook his head no. He treated us with respect, but he rightly said that actions had to have consequences. He sentenced Christine to 30 days in jail. She howled as they led her away in handcuffs. I followed and told her she could still go treatment when she got out of jail. She didn’t tell me whether she would go, she just bawled, hard like a lost child.
Although I expected to, I never saw Christine again.

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