Friday, March 28, 2008


My clients came in all shapes, sizes, colors and ages, so I couldn’t draw a picture of what a typical client looked like. They were all supposed to be “indigent” or poor, but even that wasn’t universal as my clients regularly posted bonds of $5000 and occasionally up to $25,000 in cash! However, the judge who arraigned them at their first appearance in court determined that they were indigent, usually after a couple quick questions such as “how much money do you make?” and “do you want a public defender appointed?”
This was done for the sake of practicality and efficiency. The judges were busy, the courtrooms were packed, and it was more pragmatic to appoint a public defender who would advise defendants about their case and shorten the time they spent before the bench. Having watched a few “pro se” trials where the defendant was both lawyer and defendant, I realized that public defenders performed the role of moving cases along and, sadly, shutting people up. When a person who was defending themselves conducted a trial, the judge would have to explain the rules of evidence, have to steer them back to the issues before the court, as they typically tried to raise issues that were “irrelevant” according to the rules of evidence that trial lawyers tended to know by instinct. I don’t mean to imply that all “pro se” trials were ugly. Some people defended themselves honorably and made my clients look at me as if to say, “he won that trial by himself; what do I need you for?”
While my clients couldn’t be stereotyped, there were some common characteristics. Many were basically good people, but they tended to meet up with the court system, and with me, when their lives grew desperate and out of control. I saw people who had once been decent and respectable, but who now suffered from severe alcohol or drug problems, from mental illnesses ranging from severe depression to schizophrenia, and from the general problems that follow when you are poor and desperate. Most of the time you could see this pain on their faces
One of my clients, whose name I’ve long forgotten, struggled to raise the money to reinstate his license. He finally raised this money, but, in the process, failed to pay the taxes on a worthless piece of swampland his grandmother left him in her will. The land sold at a “tax auction” for around $10,000. Shortly after this, the City of Omaha announced plans to build a new convention center and guess where they wanted to put it? That’s right, in the middle of this swampland. The man who bought my client’s land at auction for ten grand sold it less than a year later for a few hundred thousand dollars. I laughed when I read this story in the paper, but it was also sad. For want of some back taxes my client missed a chance to get rich and get away from his tough life.
While my clients came in all shapes and colors, most looked down and out when I saw them in our reception area. Most looked as if they didn’t have a job and many didn’t. When I saw David for the first time, though, I thought he had sat down in the wrong reception area. He wore a tie and looked as if he had just finished a shift at Radio Shack. His brown hair was cut short, almost military short, and he was about twenty-five years old. He looked scared to be in our office, not of the other people in the waiting room, but like he didn’t want to have to talk about the problem that brought him here.

As we walked back to my office, I knew why David didn’t want to be there that day. When I pulled out his file and read aloud to him from the police report, I acted as if I were reading it for the first time, as if the facts in it were routine. I kept a straight face as we talked about his case, but the truth was that the police report detailing the charges David faced made me make a mental note to apply two or three squirts of the hand sanitizer on my shelf as soon as David left the room.
David was accused of lewd conduct, indecent exposure, false information, and driving under suspension. A married couple, along with their four-year old daughter, made a Saturday afternoon stop in the computer lab at the local community college. While mom and dad are e-mailing grandma and Grandpa, or checking out a website, the daughter wanders down the aisles, where the mostly empty computer cubicles are lined up in rows. Daddy follows, running by the one occupied cubicle, and scoops up his daughter as she playfully runs away from him. On the way back, the dad pauses as he walks by the man sitting by the computer, and notices the naked ladies on the screen. Now he looks closer and sees the hand moving around in the man’s lap. He takes his daughter back to the mom, before she knows what she’s seen, then decides to do something about what he just saw.
As if this weren’t a sad enough story, it gets worse. When the dad tells the computer lab staff about what he saw, the staff tells him “this happens all the time” and “there’s nothing we can do.” Dad didn’t give up, however. He called the police from his cell phone and, while he waited, confronted the man at the computer who is, you guessed it, David. When dad gets back to the area where David sits, David’s pants are pulled down and everything is exposed.
For some reason, David waits for the police to get there and then panics when they start asking him questions. He tells the officers that he is his brother, Mike, but they run the plates on the car he tells them he drove and the plates come back registered to David. Caught in the act, and in a lie, David then tells them who he really is and tells them he lied because his driver’s license is suspended. He tells them he doesn’t want to talk about what happened in the computer lab, but tells them that he’s studying to be a high school teacher and that he coaches junior high boys football at a local school.
In my office, David rubs his palms together nervously as I read him these details from the police report. He won’t look me in the eye as he tells me that he needs to keep these charges off his record so he can still teach and coach. As he tells me this, I know that I will be lucky to keep him out of jail and will need a miracle to keep him from either having to plead to or be found guilty of the sex-related charges he’s so concerned about. Most judges were fairly lenient with people who were caught playing with themselves or each other in the parks after dark, often giving out fines and warnings for the first offense. But David was caught doing this in front of a child, in a public building on a sunny afternoon. I knew steam would be coming out of a few judges’ ears and that no judge would slap David on the wrist, especially if the mom, dad and the four-year old showed up for David’s trial date.
David kept asking about getting the prosecutors to drop the sex-related charges. Even after I told him that this was a real “long shot,” he almost begged, telling me that coaching had been a dream of his since he was a boy. I wanted to say, “Well, what if, when you were a boy, one of your coaches was caught jacking off in the “media center.” Would you want that guy to keep coaching you?” But I kept my mouth shut. My job was to look out for David’s best interests and that meant being concerned about how the charges would affect him and his job prospects in the future. I thought it was amazing, though, a client who had been given a free attorney by the government was expecting that somehow this free attorney could someway make these ugly charges just go away. This was the “ostrich head in the sand” response. David knew that he was in a lot of trouble- legally, professionally and personally- but he was hiding behind a false hope that I could magically undo the punishment that would follow his actions. I couldn’t really blame him. One day he was thinking about his teaching/coaching career and the next he was thinking about going to jail and explaining to future employers why he had been convicted of “indecent exposure.” What David didn’t seem to realize was that between these two extremes, he had done something in public that was very unbecoming of a future teacher and coach. He seemed to think that maybe I could make everything be all right again, but I knew that turning back time in this way was something they hadn’t taught me in law school. I would carefully play David’s “cards” for him and minimize the damage that would result from these charges, but keeping his teaching career open was something that probably even Gerry Spence couldn’t promise.
I promised David that I would do what I could, that getting these charges dismissed was very unlikely, and that I would need his help to keep him out of jail. I knew a lot of people in jail and knew they wouldn’t think very highly of a college boy who was really into and “in” for his love of computers. I would follow David’s wishes and see about getting the prosecutors to allow him to plead guilty to disorderly conduct or some other crime that wouldn’t raise as many red flags in a background check. However, I was pretty sure that no matter how hard I tried, David would go job hunting with crime on his record that would raise the eyebrows of every junior high principal he spoke to.
I also told David that he could help me help him by doing some things to show the judge, and the witnesses, that he wouldn’t do this again. I wasn’t sure what to tell him to do, so I made some “Dear Abby” recommendations such as finding a therapist or a support group. David told me that he was married, that his wife knew about the charges and that he had been a victim of sexual abuse when he was a child. I didn’t know if he was just saying his as a way to explain this bizarre behavior (to make it seem as if the real “demon” of this case was his abuser instead of him) or if he truly had been a victim. David promised me he would bring me some things to show the judge, such as proof of seeing a therapist or enrolling in a support group. In turn, I promised him I would see what I could do.
A week later, I went to the City Prosecutors Office, had them pull their paperwork for the case, and spoke to a prosecutor whom I knew fairly well. The prosecutor and I both had small children at home and I knew the chances of him dismissing the sex –related charges were slim to none. I also knew that he wasn’t a “holier than thou” prosecutor who would overreact to my request and write “JAIL!” in big letters on their paperwork as a recommendation that would be made in court. Tim, the prosecutor, read the report while I editorialized his reading with my comments on what happened.
I told Tim that I thought this was a good case for probation, since the defendant was employed and had a clean record up to this point. I slipped in, casually, that I thought maybe we could dismiss the “sex” charges and have him plead to the false information and maybe a disorderly conduct? I added that he was going to therapy now and that this was way out of character and something that hadn’t happened before and wouldn’t happen again.

Tim and I were roughly the same age and had started in county court at about the same time. We got along well (sometimes too well for “adversaries”) and I respected Tim’s judgment. We could have been best friends if our jobs didn’t involve butting heads on a regular basis. I felt like he trusted me as well and that I had always been “credible” to him by asking for what was fair and not asking for what wasn’t. Today, I knew that I was pushing that envelope a little and that Tim would probably strongly disagree with me about what a fair plea bargain would be. Like used car dealers, we had both learned to “value” a case or to figure out where the prosecution and defense could properly meet to settle the case before trial. This involved looking at how the case compared to others, guessing whether the victims would show up for court or not, and estimating what each judge would typically give for a sentence.
It was my client’s right to choose whether to go to trial or to plead, but I always presented them with a choice by telling them the likely outcome of a trial and comparing it to the likely outcome of a plea bargain. I loved to go to trial, but, like all public defenders, who don’t get to choose their own cases, I spent much more time on plea bargaining than on trial preparation. This wasn’t because I didn’t like going to trial. It was good for me to go to trial every day, but doing so would have hurt my clients in a lot of cases. I loved and worked for the moments when I could tell my clients “let’s have a trial” but in most cases this was bad advice that would have left them paying the price for me acquiring trial skills. I loved going to trial, but wasn’t willing to let my clients pay the price for it if it wasn’t worth it for them. Their interests had to come before mine and this meant finding a reasonable plea bargain about nine times out of ten.
Tim raised one eyebrow after I mentioned probation and I half expected him to laugh when I mentioned amending the indecent exposure and lewd conduct into disorderly conduct. He didn’t though, and I think he understood that sometimes I was asking for what I thought was fair and others I was asking for what my client told me to ask for. Of course, I couldn’t tell him this, since this would stepping outside of my role as their advocate. He “got this” distinction though and wasn’t offended by my request to sell this car at such a cheap price. Tim and I knew each other pretty well and I had expected him to say yes to my request for probation. I also expected him to not let David “have his cake and eat it too” by dropping the sex charges and not asking for any jail time.
Just as I expected, that’s Tim did. It wasn’t that I was gifted in being able to predict this beforehand. Tim was smart, though, and we had both seen enough cases to know where this case properly fell within the spectrum of misdemeanors that were paraded by us every day. In asking on David’s behalf, I was trying to sell him on a different “placement” for it and he knew I was asking for too much. Our jobs meant that we both had to push each other and bargain over proper outcomes for cases and somewhere in this bargaining process, justice was occasionally served and a lot of court time was saved. Tim offered to dismiss the indecent exposure and the driving under suspension if David would plead guilty or no contest to the lewd conduct and false information charges. Tim also agreed to not have an objection to my request for probation, which meant that David had a much better chance of staying out of jail now. It also meant that David’s teaching career was in jeopardy, but this was nearly inevitable and was really only fair.
I made sure Tim wrote “offer” on the paperwork and didn’t cancel his witnesses, so that David could consider this offer but also still have a trial if he desired. David was lucky. Some prosecutors would have demanded a specific number of days for David or would have just agreed to leave the sentence up to the judge. While Tim’s offer to not object to probation was no guarantee that David would stay out of jail, it certainly helped David a great deal. Judges obviously got to decide the ultimate sentence and could ignore my request for probation, Tim’s offer to not fight with me over this meant that the judge would not feel so compelled to put David in jail. “After all,” they could say, “the state wasn’t seeking jail so I didn’t feel it was necessary.” I knew that about half of the judges David could face would go along with this offer or stay fairly close to it. In other words, there was now a good chance that David would stay out of jail through this plea bargain. Even though this meant he would be explaining the meaning of “lewd conduct” and the purpose of probation to his future employers, David was actually sitting pretty good, considering what he was accused of doing.
Tim wrote his offered plea bargain on the prosecutor’s paperwork, which meant that I could bring David in for a plea before his trial date and the prosecutor assigned to that courtroom would make the same recommendation. County court was structured so that a defendant could choose his or her judge by coming in for a plea of guilty or no contest at anytime and in any courtroom before the assigned trial. Sadly, a large portion of my job was spent “judge shopping” or continuing cases that were set for trial before “bad” judges and bringing people into court for pleas before “good” judges. While the judges wouldn’t admit it, this setup was made to encourage plea bargaining and to increase the number of people who plead before trial. Judges and administrators would consider this “efficiency” but I considered my role to be the person who ensures that in this push for efficiency, effectiveness was dealt with as well. There was a constant push for efficiency- made worse by increasing police and increasing caseloads- but my small but important role in the system was to counteract this push by pulling for effectiveness. I tried to filter out “good” cases and take them to trial. I constantly looked for weakneses in the prosecution’s cases and exploited them. I was an advocate for my clients going up against the advocates for the state, but, in this clash, justice was sometimes created. I had to play the game to win and had an important role to play. Bureacracy and justice were like oil and water: they required constant agitation to keep them from naturally separating.
David’s case didn’t look like a good one to take trial, but you never knew. Since I had to represent his interests and since the prosecutors had offered not to recommend jail time, David and I were in a good position. We could wait until the trial date and either accept this offer from the prosecution or ask for a trial. All I had to do was make sure that David’s case was scheduled before a “good” judge. David would have been crazy to go to trial if the witnesses showed up for trial, but I would have been derelict if I allowed him to plead guilty to these charges if no witnesses showed up. Of course, as any law student knows, an offer can be withdrawn before it is accepted, and thus the prosecutor could take this offer away until the point that I told him or her that David accepted it. I also knew that these offers were rarely withdrawn as the prosecutors tried to keep their word. Since I hadn’t given mine and had told Tim that David would think about it, I was still playing by the rules, even though I was probably pushing them a little bit.
The stakes were high in a case like David’s for obvious reasons. Several judges would be very upset and one would sentence him to six months in jail, the maximum, without blinking. While David may have deserved a tough punishment, I wouldn’t have allowed my worst enemy to appear before this one judge I could have helped it. She was perhaps the only person I had ever met who had no qualities. Although she’d been a judge for twenty years, she knew less about criminal law than I did on my first day. To her, “beyond a reasonable doubt” meant “can I find this guy guilty and not be overturned on appeal?” I admired things about certain judges that other public defenders and prosecutors detested, but I could see nothing good about this judge whatsoever. If she would have been killed in a traffic accident I would have thought what a shame it was that a perfectly good Lexus had been destroyed. I might have even toasted her death at the bar, afterwards, if I could have gotten a seat before the throng of attorneys at the bar afterwards. As long as David avoided her, and a few other judges, he would be in decent shape. While she was on the bench in a different courtroom the day of David’s trial, I checked beforehand and made sure that the judge who would be hearing David’s case would be sympathetic to him.
On David’s trial date, I walked into the courtroom, but didn’t see David or the court file for his case. When the bailiff saw me looking around she said, “if you’re looking for the “Johnson” (David’s) case, it’s in another courtroom. They accidentally scheduled it in here but they found the defendant and he’s waiting for you in courtroom 27.” My heart sank. This meant that David would be going in front of the one judge who would give him the maximum, six months in jail and a one thousand dollar fine. If I had would have known this, I could have avoided it by claiming that my client had no notice of the scheduling mix-up and could have gotten it rescheduled. But since the bailiff had found and told David of the mix-up herself, he knew about the hearing and there wasn’t much I could do about it. Suddenly David went from an almost guaranteed probation or perhaps a dismissal to an almost sure six months in jail. There wasn’t much I could do except go down swinging at a trial since this judge would have given David the maximum no matter what the state recommended. If the state was ready to go to trial, David was out of luck.
I stepped into the courtroom, saw the judge’s evil eye on me, and called out the name of the father who had witnessed David in the computer lab. This was David’s last resort and I was sure a hand would be raised when I called out this name. I couldn’t imagine that this man would go to the trouble of calling the police on own his cell phone and then fail to show up at court. Miraculously, however, no hands went up. I called out the wife’s name, then even the child’s and checked the hallway to make sure that the whole family wasn’t outside talking to the prosecutors. I even walked back to the original courtroom and scanned the hallways along the way to make sure their subpoenas hadn’t sent them to the wrong courtroom as David had. They were nowhere to be seen. Just as suddenly as the outlook for David’s case changed from probable probation to sure jail, it changed back. Now David and I were in the “driver’s seat” since the state could only prove the false information charge, and possibly the driving during suspension, without the civilian witnesses present. I knew that rather than trying David today, they would request and undoubtedly get a continuance and another chance to bring their witnesses to court. I wouldn’t fight with them on this, I would just quietly object (to preserve the running of David’s right to a speedy trial), since I wanted to avoid going to trial today just as badly as the prosecutors did.
At the bench, the prosecutor asked for a continuance and told the judge that the prosecutors sent the notices for these witnesses to appear to the wrong addresses. The state was required to show “good cause” for any continuance but I knew this judge would find it not matter what they said and knew I shouldn’t push David’s luck today. Whether he knew it or not, he had miraculously avoided going to jail because some clerk made a typo on the computer and thus sent the letters to the wrong house. I turned to look at David sitting in the courtroom and wondered if he knew how lucky he had been today. I had already worried away a few hairs and sweated off a few pounds today as I ran around preparing for his case, and followed the ups and downs. David and I talked and he seemed impatient, as if he just wanted to get it over with today. He showed me documents that proved he was in therapy, in marriage counseling and in a support group. David planned on getting this over with today and it upset him that I went along with putting it off. It was one thing to defend “jack off Jimmy” in court without so much as a thank you, but hearing David complain about this not fitting into his schedule just took the cake for me. I explained that he had narrowly avoided the maximum jail time today but David said, “I thought you said they were o.k. with probation?” Rather than argue with him, I just told him how it was.
“You’re right, David, I’m sick of this case too. Let’s just get rid of it today, like you want. I’ll go see if the judge will take your plea today, then the state will recommend probation, and the judge will give you six months in jail. If you can pay off your $1000 fine before the end of your sentence, you can be out of jail in about four months, if you get your good time.” David’s eyes widened and I completed my bluff by walking toward the door. “Come on, let’s get it over with.”
As I knew he would, David got the message. I didn’t take his incredibly ignorant attitude personally. Like a lot of my clients, David’s life had fallen apart before he came to see me and he was focused completely on himself. He was minimizing his own conduct and denying the stark reality that he was just a pen stroke away from going to jail and kissing his teaching career goodbye. My little charade reminded him that just because he went to see a counselor didn’t mean he was out of trouble. And just because I was a new, free lawyer didn’t mean he could push me around. I thought of the old saying, “no good deed goes unpunished.”
About a month later, I checked to see which judge was scheduled on David’s trial date. It was one of my favorite judges in general, and a good one to have a trial in front of, but not a good person to sentence David. Just as I would have done if I would have been a judge, he would have punished David severely for his attitude, his failure to apologize, and willingness to blame others for his own mistakes.
But I wasn’t David’s judge, I was his advocate. I had to advise him and let him exercise his rights, either to a trial or to a plea of guilty. I called David and told him that I could either postpone his trial date once more to get a different trial judge or else schedule an early plea before a judge who would likely put David on probation. I told him that a trial was sort of a question mark. He might be better off than he would be if he pleaded guilty, but he might be worse off too. I told him it was kind of like “The Price is Right.” You could either stop with what you had won or bet it all to see what’s behind door number one. If the witnesses showed up for trial, he’d be in jail, but if they didn’t he would be in a much better position, with no “sex” charges on his record. David thought about it and then surprised me by deciding to plead guilty, to the charge that would likely keep him from being a teacher, before trial. I didn’t know if he was motivated by the desire to stay out of jail, if he was as sick of this case as I was, or if he suddenly wanted to accept responsibility for what he’d undoubtedly done.
On the day David entered his plea of “no contest” to lewd conduct and false information, he looked like a different person. He had on a tie, had proof of attending “sex addiction” classes and had a letter from his therapist. The letter was very detailed and described a long road to recovery that would take much commitment, many individual sessions and much group therapy. The therapist recommended probation but also asked the judge to consider giving David some jail time if he didn’t comply with its terms. The letter was credible because it didn’t describe David as a victim but described him as a person who had been abused but who also had a responsibility to make sure the buck stopped with him.
The judge read the letter and put David on probation. It was for two years and followed the therapist’s recommendations almost exactly. Like all probation orders, David’s required him to “refrain from unlawful conduct,” meaning that he could violate his probation by receiving any new convictions or charges while on probation.
Under Nebraska law, David could technically ask the court to “set these convictions aside” from if he successfully completed probation. If he did this, he could honestly tell his future employers that he no convictions for “sex” crimes. I knew, however, while David would be telling the truth, a person reviewing David’s record would see a conviction for lewd conduct on one line and another line that said “conviction set aside.” This would be like telling a person to ignore the pink elephant in the closet. David would have a very slim chance of getting a judge to set his conviction aside in the future and an impossible task of getting a future employer to believe the charge of lewd conduct on his record in two places wasn’t anything to be concerned about.
David had escaped from one bureaucracy, County Court, without having to go to jail, but I knew he’d have a very hard time entering that other huge governmental bureaucracy, the public schools, with such a record. David had two goals when he came to me: stay out of jail and preserve his ability to teach and coach. While David’s sentence in County Court was probably fair and helped him figure out how to end this type of behavior, I secretly hoped he never realized his second goal. I knew my kids would never go to a school where he taught or coached if I could help it. But I wondered about the parents who didn’t know what I did. Would they trust that their administrators would filter out such a teacher and coach? Would the administrators really look at David’s record? Would they see the same bizarre look in David’s eye that screamed “future sex offender” to me?
I hoped David addressed both his past abuse and his current behavior, but I also hope no principal ever took a chance on him. David probably deserved a chance at probation, but no child deserves to have such a man teach them in the classroom or coach them in the locker rooms, about how to behave.

No comments: