Friday, March 28, 2008


When I got back from court in the morning or afternoon, I walked through our lobby and usually passed people who were already waiting to meet with me about their cases. I walked on by, took a few minutes to check my voice mail, glanced through the new cases and correspondence waiting in my mail box, and made a few notes on the cases I closed that morning. I stuck these files in my “out” box, filled up my water bottle, and walked back up to the lobby to see what and who was waiting for me.
Many of the cases involved charges and issues that I could almost do in my sleep. For every case involving no proof of insurance or driving during suspension, the entire case usually boiled down to just a few important questions. Aside from questions about the stop of the automobile, my clients either had insurance or they didn’t; their license was either suspended or it wasn’t. Clarence Darrow himself was not going to “get them off” on driving during suspension if the officer saw them driving and the Department of Motor Vehicles previously suspended their licenses. I simply told these people how to fix their driver’s license problems, told them to get insurance coverage as soon as possible and sent them on their way.
The fun part about being a public defender, however, was finding the one case in a hundred that held fascinating issues or that provided a chance to argue, appeal and then clarify an area of the law that had not been previously been litigated. Because of the high caseload, if you put up with the “emergency room” like daily work atmosphere, you were also rewarded with the chance to learn criminal law thoroughly. Like being a surgeon in a M*A*S*H hospital, if you stuck around for a few years, you acquired the experience of a criminal lawyer who spent decades in private practice.
I will never forget the day a judge twenty years my senior, who was talking to a private lawyer whose car cost more than my house, turned to me and said, “You’re a public defender, you probably know the answer to this question…” AS a P.D., you learned to take the bitter with the better. You put up with screaming clients and jam-packed days to learn the law well and to learn to be a good trial lawyer. If you put up with the monotonous cases, the fascinating, groundbreaking cases would come too.
But these interesting cases often came in uninviting packages. If you didn’t look past the surface, you didn’t see the fascinating legal issues beneath it. The day I met Mike, I almost lost it on him and almost lost out on the interesting issue that his case presented. I prided myself on keeping a cool head as my clients screamed at me, but I almost lost my cool before I even asked Mike about what brought him to see me.
When I walked into the lobby to start interviewing clients, Rosanna, our twenty-year-old Spanish translator looked to be on the verge of tears. She muttered something like “one of your clients says I’m a bitch, Dave.” Since Rosanna rarely complained and had never voiced a concern like this before, I could tell that someone had crossed an important line with her. She was silently asking me to do something about it.
Through dealing with several thousand clients, I discovered, over time, that a laid back, respectful attitude worked best to deal with often irate and irrational clients. They screamed at me and I calmly spoke to them, telling them that their case needed attention. When they saw that screaming didn’t provoke a reaction in me and heard that I wanted to work on their case, they usually calmed down and we talked about their legal problems. I drew the line, though, when my clients yelled at our office workers. Secretaries like Rosanna worked hard, tolerated abuse all day, and rarely complained. I could take abuse myself, but I couldn’t stand watching someone else have take it. I usually kept a cool head, but I was starting to lose it even before I met Mike in person.
On the way back to my office, I didn’t hold my tongue. “I heard you already got into it with one of the secretaries. Why’d you call her a bitch?” Mike was walking behind me and I looked over my shoulder and into his eyes.
“She was being a complete bitch”, he said. “I was just trying to find out when you were coming out and she got an attitude with me.”
“I don’t know why you think you can come in here and act like a jack-ass…” I said. We were just walking in the doorway of my office and I turned to face him to close the door.
“Don’t call me a jack-ass,” Mike said. He was about my same height and build, but I was in my mid thirties, in a tie, while he was barely old enough to drink. For a second, I was pretty sure that I had gone too far. I thought that this might be the client makes me lose my temper, my bar license, or even a couple teeth. I knew my boss wouldn’t be too happy about a fist fight breaking out in his office between a lawyer and a client.
“Well… then don’t come here acting like one,” I said. Mike and I instinctively took a step toward each other so that our noses were inches apart.
“Don’t call me a jack-ass,” he repeated. We just stood there like kids on a playground, seeing who would blink first.
Of course, being the mature lawyer, I took the mature way out. I repeated myself. “Well, then don’t act like one. Don’t come in here and start calling people names and then bitch when you get called names” This was going nowhere, but since I was the old one in the tie I didn’t want to back down and let him have the last word.
“Don’t call me a jack ass,” Mike said, finally. We stared at each other. “Look, can we just talk about my fucking case,” he asked.
Suddenly I felt like I was the one who crossed a line. I was supposed to be the professional, with kids at home and a mortgage, and I was picking a petty fight with a kid fifteen years younger than me whom a judge had appointed me to represent. What was I going to do, fight with my client over who was going to apologize first? What would I win by having the last word? Why was it my client and not me who wanted to concentrate on his case? That was supposed to be my role and yet in trying to act tough I forgot to act professionally. All of the sudden I realized how silly I must have looked. I knew that most of my clients ended up in front of me for failing to keep their cool and here I was, about to lose mine.
“Alright, you’re right,” I said. “I shouldn’t have called you a jack-ass. We just can’t let people yell at those secretaries or call them names. It just doesn’t work.” Mike nodded and we both sat down, still mad but toned down a little bit.
I asked the first question that popped into mind. “What are you charged with?”
“Disorderly conduct.” Mike replied.
“Oh really,” I said, faking surprise. We both laughed and the ice was broken.
Mike went on to tell me what had brought him to the public defender’s office. He and some friends went to a bar with a friend who had just turned twenty one. They walked the drunken birthday boy outside to sober up and stood as a group, waiting for a friend to pick them up. Mike was holding the drunk guy up when another friend warned him that there was a police officer walking up on them.
Mike yelled “Fuck the police” and went on holding his friend up by the armpits. When the officer walked closer, Mike’s friends warned him again, but he was full of liquid courage. This time he yelled, “Fuck those police.” After the officer demanded an apology and Mike refused, he was arrested for disorderly conduct. When the officer made him sit down to await back-up, Mike yelled to his friends, “I didn’t do shit.”
After Mike told me this story, I looked at him intently. “Are you sure that’s’ all that happened?” I asked. Mike promised me that this was everything and gave me several of his friends’ names to call as witnesses to this. I told him that if this is all he did his case was winnable. I warned him that sometimes winning meant losing at trial and filing an appeal. “The prosecutors tend to think of trial as the whole story, but I like to think of it as the first chapter,” I said. I knew that a trial judge would be unlikely to agree with my argument that Mike was simply exercising his First Amendment right to free speech when he said these things. I had lost enough times at trial and won enough times on appeal to know that it wasn’t whether you lost at trial that mattered. It was whether you could lose there with style at trial and win later on appeal. Winning at trial was enjoyable, but winning on appeal was the next best thing.
As a public defender I put up with a lot of ridiculous situations and was often called on to be more of a social worker than a lawyer. But the number of cases that were thrown my way meant that I had an opportunity to learn to be a good lawyer just by paying attention. I had seen enough cases in this area and read enough opinions to know that Omaha’s disorderly conduct ordinance was susceptible to a First Amendment challenge. The ordinance was written broadly enough to criminalize speech like Mike’s that was vulgar but not illegal. What he said was not smart or nice, but what the City of Omaha tried to do in criminalizing it was unconstitutional.
While people looked down their nose at me for being a criminal defense lawyer, I took pride in my small role as guardian of the Constitution. I was not going to let case s like this, where the government was punishing people for voicing their opinion about the police, slip by on my watch. I put up with a lot of boring, run of the mill cases to find cases like Mike’s, where I could find the right case and ask the appellate court to answer an important question about the intersection between people’s free speech rights and the government’s right to regulate words that tended to incite an immediate breach of the peace.
A week or so after Mike’s interview, I copied the police report that detailed Mike’s arrest. To my surprise, the report read almost exactly as Mike described his encounter with the police officer. This meant that I could more easily create a good record for appeal because I could use the state’s witness and the report itself to show exactly what Mike said and why he was arrested. The officer would have a hard time adding on to the report and creating a better reason for the arrest, in other words.
Even though Mike and I almost came to blows, preparing for his case motivated me. Some people are born to heal the sick or to teach the young, but I felt like I was born to keep governmental power in check, even if it was a simple misdemeanor case. I didn’t care if I was in a penny ante game, I was playing a game I loved, and believed in, and honing the skills I hope to use on higher stakes cases in the future. I read case after case involving the regulation of speech, the use of vulgarity in public, and the right to voice one’s opinion about the police. The more I read, the more motivated I became. Mike may have acted like a jackass, but yelling “fuck the police” didn’t rise to the level of yelling fire in a crowded theatre. I lost a lot as a public defender, but this time I was determined to win.
I prepared arguments, I copied quotes from the Declaration of Independence, and I summarized case law to give to the judge and to use on appeal. My colleagues laughed at the energy I put into a case that could easily be disposed of with a guilty plea and a $50 fine. I loved it, though. I was finally dealt a case where there was an important point to make. I put up with a lot of driving during revocation cases to get to a case with interesting important issues, and I was not going to lose it for a lack of work. I knew I would lose at first, but I also knew I could win later. I knew the prosecutor would laugh at me, but I also knew the law would allow me to laugh last.
At the motion hearing, I was quite sure that the prosecutor would follow his usual routine. He would offer to recommend a small fine if my client plead guilty today but would ask for jail time if I drug the case out any longer. Of course, I would see through his idle threats, argue the motion and lose it. Then I would preserve the issue at trial and get to work on the appeal.
I walked into the courtroom expecting all of these things. I had a brief already prepared and had copies of cases ready to give to the judge and the prosecutor. I even had a short speech ready to give to the prosecutor when he threatened to ask for jail time for such a silly offense.
But I never got to make it and didn’t even get the chance to argue the issues. The prosecutor caught my attention when I walked into the courtroom with Mike. As I got ready to tell him there were not going to be any plea bargains, he spoke first. “I’m going to dismiss it. It should have never been filed.”
Five minutes later the prosecutor kept his word and dismissed Mike’s case. I was happy for him, but also a little annoyed at having prepared so many hours for nothing. Evidently the prosecutor, or his bosses, saw the same vulnerabilities that I had seen. As I looked for a good case to take up to the appellate courts, they didn’t want to give it to me. I should have viewed this case as a “win” but it felt more like a draw, like preparing for a game when the other team didn’t even show up. Mike was happy, and free, but I was all dressed up with no place to argue.
As I studied the police report in preparation for Mike’s case, I came across something in his criminal record that explained a lot. There are two types of entries on a person’s criminal record, “suspect” entries and “victim” entries. “Suspect” entries contain an arrest number, signifying the police department’s method for tracking arrests. “Victim” entries have no arrest number and are placed on the record when a person is either subpoenaed into court as a witness or when a person is a victim of a crime. Thus, someone with a trained eye can look at a person’s criminal record and know which both the crimes they have been charged with and the crimes in which they were either the victim or a witness.
There wasn’t much on Mike’s record. The first entry, though, told me a lot about the attitude that was coming out when Mike was in his early twenties. Nine years ago, Mike had been either a witness or the victim of a child sexual assault. It looked to me like Mike had been through a lot. He looked perpetually angry, but also looked like someone who, when he calmed down, was a pretty decent person. I had made up my mind to fight to keep another charge off of his record and had gotten my wish. I pictured the victory differently and didn’t expect it so suddenly. But a win is a win and Mike needed one.

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