Friday, March 28, 2008


I was appointed to represent people only when they went to their arraignments, or first appearances, and pleaded not guilty. The judge then made a quick determination about whether they were indigent and, if they were, the Public Defender’s Office was appointed. The usual arrangement for people who weren’t in jail was that the person would be sent to the Public Defender’s Office from court to fill out some paperwork and set up an appointment a few weeks in advance. Usually I found out about my clients when a file folder was placed in my mailbox, but occasionally an actual person would be waiting for me, with a story that just couldn’t wait until an appointment was set up. Godfrey’s was one of those stories.

There was a note waiting for me this particular morning telling me that Godfrey Sellers was waiting for me in the lobby and had to see me now. The note went on to explain that Godfrey worked as an over-the road truck driver and only made it to Omaha every so often. He lived on the East coast and had arranged to be in town today for his arraignment. He wanted to see me now to “get this thing over with” and to avoid having to come back for both an interview and a trial. Godfrey was a large black man in his mid-forties. When he shook my hand in our lobby, I noticed his strong grip, the kind you’d expect a big truck driver to have. Of course, I knew nothing about his case until we got back to my office and he began to tell me the story that brought him to see me.

I looked on the computer for information about Godfrey’s case and saw he was charged with indecent exposure and lewd conduct. He told me that he was at a Target store about a month ago, just sitting in the parking lot drinking a coke, when two police officers arrived and asked him to come inside the store with them. He told me this happened at night, after dark, but didn’t explain what he was doing there, alone. I asked him if he was in his truck, thinking that he must have been, but he told me that he was in a regular passenger car. I wondered how a trucker from another state would get a car to drive around in, but Godfrey didn’t seem to want to go into this so I left it alone for a little while. He went on to explain that when the officers arrived, they told him he had to come inside the store with them and took him to see the manager. The manager said “that’s him” and explained to the officers that a surveillance camera, which was monitored by a security officer, showed Godfrey masturbating in the front seat of his car. Godfrey told me he didn’t say much to the officers, that his rights were not read to him, and that was ticketed for lewd conduct and released that night.

I wanted to ask Godfrey why he would sit in his car in a parking lot at night, “drinking a coke,” but it was a little awkward to sit in a small, closed room with another man and discuss such things. Still, it was my job to hear my client’s explanation and advise him about what his chances were of succeeding at trial and what he would likely face if he chose to take a plea bargain and plead guilty before trial. With Godfrey, the look of embarrassment on his face told me that while he may have deserved a lecture or some jail time to learn about behaving properly, what he needed from his court-appointed lawyer was professional advice about what would likely happen to him now that he was in the legal system. I walked through parking lots like this one every week with my own kids and thus I was repulsed by the image (and the implications) of a man playing with himself in front of ordinary shoppers. But I was not a person in the crowd at Godfrey’s trial but a professional who had to look at the case from Godfrey’s perspective, despite the disturbing image that the facts brought to mind.

I didn’t have the police reports yet, so my only source of information was Godfrey. He claimed to have been only “drinking a coke” but the sheepish way he claimed this told me that he offered this explanation as a way of minimizing he awkwardness between us and that he knew, as well as I, that this explanation wouldn’t fly very high with a judge. Godfrey told me that he had a clean record and that he’d been a trucker for the last twelve years. “It’s a good job,” he said, “and they’ll fire me if any kind of charges are on my record, like lewd conduct or indecent exposure.” I wanted to say, “you should have thought of this before you pulled it out in the parking lot!” but I didn’t. I knew Godfrey was saying that the stakes were high and that he was more worried about spending the next few years without a job than about spending the next six months in jail.

I told him I would do what I could but that I couldn’t promise anything. I said that maybe we could talk the prosecutors into reducing the charges to something like disorderly conduct, which wouldn’t look as bad on his record, but I also said that the prosecutors would have to have a good reason for doing so. Like always, I told him that these were his rights and that it was his call about whether to go to trial or to plea guilty. Godfrey said that he didn’t want a trial, he didn’t think, and that he wanted me to “just talk to the prosecutors, see what you can do.” He said he’d be back in town in a few weeks and would set up an appointment to see me then. We said goodbye and I noticed that Godfrey didn’t offer his hand for me to shake, which was fine by me, now that I knew where that hand had been.

When I copied and reviewed the police report, things looked even worse, but I saw a ray of hope for Godfrey. The officers described finding some type of lubricant cream on Godfrey’s hands when they found him in his car. They also claimed that a woman and her child could be seen on the videotape walking by Godfrey’s car while he was sitting in it, drinking his coke. Perhaps I was becoming overly cynical, but I had serious doubts about whether this mother and her child really existed. The reason for this was that Omaha’s lewd conduct city ordinance prohibited conduct that was visible and offensive to people “intended or likely to witness it.” After the police officers saw a few trials in which the defendant, and his attorney, claimed that no one saw the bad act except the hardened, not easily offended police officer who made the arrest, more innocent, unnamed bystanders started appearing in police reports. In “getting their man” a lot of cops were willing to twist the truth to keep those judges and, worse yet, those defense lawyers, from letting them walk away scot-free.

The ray of hope I saw for Godfrey was that it looked like perhaps the evidence presented by the state at trial wouldn’t be enough to prove Godfrey’s guilty beyond a reasonable doubt. This was not because Godfrey couldn’t be proven guilty but because both the prosecutors and the police didn’t build as solid of a case as they could have. They could have proven Godfrey guilty several ways but they put all their eggs into one basket and I could capitalize on this mistake if things played out the way I thought they would.

The problem was that the videotape was not booked into property, as it should have been. This would have allowed the judge, after proper foundation was laid, to see exactly what the camera operator saw, and would have been the best evidence that the state could have presented. If the prosecutors did this, a picture would indeed have been worth a thousand words toward proving Godfrey’s guilt, assuming the tape was as bad as it was described on paper. I could have filed a motion to force the prosecutors get the tape for me, so I could see for myself, but I knew this would mean that they would have it for trial when I gave it back. Like in medicine, the first rule of criminal defense was “do no harm.”

Of course, if the camera operator showed up for trial with the tape, Godfrey and I would both have to live with what was on it and what he had seen. But I knew from past experience that twenty-something, college kids who worked security at Target often didn’t make it to court at nine in the morning, especially when they thought their appearance was not necessary for a conviction. In Godfrey’s case, the police report told me that the Target employee saw the action live and then played the tape for both officers to see. Godfrey had not made any admissions to the officers and they had not personally seen any lewd conduct or indecent exposure. This meant that the police officers could offer very little evidence themselves, even though they would be left wondering why they couldn’t just tell the judge what they saw on the tape.

The reason for this was something called the best evidence rule. In general, this rule prevents a witness from testifying about he content of a writing when the witness merely observed eh content of the writing in the same way that a judge or jury could see it. In other words, letting the cops tell the judge what they saw on the videotape is not the “best evidence” because why should the finder of fact hear someone else’s impression of a what was written on a note or what was recorded on a videotape when the judge could see the writing or view firsthand. This rule requires the person offering such evidence to explain why the original source of the evidence was not available before calling a witness to discuss what was seen or read. I knew that most judges wouldn’t allow the prosecutors to testify about what they saw on the tape if the only reason they could give for not having the tape was that they didn’t think it was necessary or couldn’t find a Target employee.

With this possible trial strategy in mind, I put the police report aside and wrote “trial” next to Godfrey’s name in my appointment book. I knew it was a longshot, but it was also something to hope for in what had been a hopeless case. I knew there was no use in seeking a plea bargain before trial because Godfrey expected a miracle and the police report described a mother and her child seeing Godfrey in his car. The prosecutors would not want to take a chance that this mother would show up on the trial date (or in the newspaper) mad as hell that they “let this guy off” after he exposed her daughter to a nightmarish sight without consulting her first. Because of this fear, the prosecutors would not offer us much before trial and would want to resolve it on the trial date so their witnesses could appear and be heard.

Godfrey came in to see me as promised and I told him not to get his hopes up but that I saw something that might allow him to keep his job. He was not happy about having to wait two more weeks for trial and to make another trip back to Omaha. When I told him that we could easily take care of it right now, with a plea to either the lewd conduct or the indecent exposure, he agreed to come back on the trial date. I told him he was asking for quite a bit when he wanted me to get two “ugly”charges converted into one relatively benign one, keep him out of jail and also accommodate his busy schedule. I wanted to remind him that he wasn’t paying me a dime and that the county was paying me to represent him and three hundred other people, but I stopped myself and instead said, “I don’t have a magic wand you know, Godfrey.” He seemed to get the message and he thanked me. I had seen a lot of basically good clients who lashed out at their attorneys because they were frustrated. I had also seen bad clients who lashed out at their attorneys because they were assholes who lashed out at everybody. Godfrey seemed like the first type. He was sick of not knowing what the future would hold and whether his job would still exist. When I told him I didn’t know yet, and that he shouldn’t get his hopes up, for a minute he forgot that he got himself into this mess and had to be reminded just what he was asking me to do. I told him I couldn’t promise him anything, that he might go to jail and he might want to give me a high five in the hallway. It didn’t help Godfrey to hear me say that his trial judge was a good one who wouldn’t let “bad” evidence in against him but also wouldn’t’ hesitate to put him in jail if he saw the videotape and it was bad. I wondered if perhaps the tape was bad because Godfrey cringed at this news and left my office as if he had just been diagnosed with cancer and was expecting the results soon.

Godfrey got lucky. The police showed up but the Target employee slept in and the mom was nowhere to be seen. The prosecutor was smart and, unlike the other prosecutor who filed these charges, knew that no matter what the police had seen, they weren’t going to be able to talk about it, at least not to this judge who knew the rules of evidence well. The prosecutor called Godfrey to the bench to dismiss the case before I had a chance to explain what was going on. Godfrey stood up, sweating profusely, thinking about his job when his name was called and he was motioned to stand before the black-robed judge. Panicked, Godfrey looked at me for help but all I could do was whisper “dismiss” quickly and quietly in his ear. When the judge said to the prosecutor, “Your motion is granted. The charges are dismissed without prejudice,” Godfrey stood for a minute, not knowing what to do. The judge said, “you’re free to go, Mr. Sellers. I t’s your lucky day.”

Godfrey didn’t give me a high five in the hallway, as I’d prophesized. Instead, he exhaled a genuine “thank you” as if a long-held pressure were being released from deep inside him. He also warmly extended a hand for me to shake. For a split second I hesitated, remembering the police officer’s description of the lubricant he found on those hands. But I couldn’t disrespect Godfrey or anyone else who genuinely offered me their hand, no matter what I knew about where it had been. I wonder if Godfrey fathomed how close he came to jail and unemployment that day. I hope he learned his lesson, that the threat of jail made him stay out of parking lots and courtrooms in other cities and other states. Hopefully he would keep both hands on the wheel and stay out of trouble in the future.

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