Friday, March 28, 2008


Obviously, as a public defender it was my job to keep people out of jail as the prosecutors tried to keep or put them in. When the charges my clients faced involved violence or the threat of it, I could usually count on the prosecutors to be asking for jail and, understandably, not excited about working with me to get my clients into court early to try to get them out of jail.

However, county court was a bureaucracy and bureaucracies typically involve quite a bit of “buck-passing” as individual actors within the bureaucracy move a problem along to the next person rather than addressing it themselves. Sometimes this meant that my clients could benefit from a situation where a bureaucrat wanted to protect himself, or the County, from a current or a future problem.

Robert’s was one of these cases. I found his file in my mailbox and looked it over quickly to see if Robert’s case required immediate attention or if it could wait a few days until I had more time. I saw that Robert was facing two counts of assault and battery, one count of disorderly conduct and one count of failure to appear. Robert’s bond was set at $2,500, and, as I looked at his record, I knew I would have a hard time getting a judge to lower this bond since Robert had missed court and was facing a charge involving violence.

Unless he had a few thousand dollars or wanted to plead early, Robert wasn’t going anywhere for awhile. I made a mental note to visit him in jail on the following Tuesday and put his file in my “in” box, mentally categorizing it as a case that did not require immediate attention. I went back to dealing with more pressing cases and clients, forgetting about Robert, until one of our secretaries brought me a message note from an administrator at the jail with Robert’s name on it.

The woman from the jail had not been able to reach me on the phone since I’d long ago learned that answering my phone every time it rang meant that I spent a precious hour or so every day talking to people from the jail who had nothing but time on their hands and no one to call but me. I learned quickly to let all my calls go through to voice mail and then check them daily. If I did not do this, and tried to keep up with the twenty-five or thirty phone calls a day I received, I would have had to work large law firm hours at about a third of the pay.

I dealt with the people who came to their appointments and court dates, visited the people who were in jail, and temporarily blew off the people who called me on the phone. There were just too many clients and too few hours in the day to spend answering the phone, especially when nine out of ten calls were clients from the jail (or friends of clients at the jail) who always demanded immediate attention but rarely needed it. I jokingly told my co-workers that I was on “phone strike” and they knew what I meant and often went on it themselves to get their jobs done.

When I called her back, the woman from the jail, Trish, understood my world since hers was probably very similar. She wasn’t upset that hadn’t promptly returned her call and knew enough to call my secretary so that a piece of paper would be physically handed to me. She knew this would get my attention. I was surprised that Trish wanted to talk about Robert’s case because the case was still fresh in my mind and I’d already mentally pigeonholed Robert into the “no hurry” category.

Trish told me that Robert was terminally ill and that the jail physician had only given Robert between one and three months to live. She wouldn’t tell me specifically what was wrong with Robert (for “confidentiality reasons”) but told me she thought the charges “weren’t that serious” and that the five days Robert had served “were probably enough.” She went on to say that I should schedule an early plea for Robert and ask the judge to let him out. She even offered to call the prosecutors and tell them that she thought Robert should be allowed to go home. She even let it slip that she “didn’t want to have to deal with him dying in jail” since such a death would automatically trigger a grand jury investigation into the causes and circumstances of the death.

My first reaction was to disagree with her about how serious these charges were, but I kept these thoughts to myself since my job was to look out for Robert’s legal interests. I couldn’t, as an advocate, very well argue with a person who worked for the jail and who wanted my client to be able to get out of jail, could I?

I told Trish that Robert would be in court in a few days and she sounded relieved. I told her that I had to find a “good judge” who would be willing to accept a generous plea bargain on some relatively serious charges. I also thought that as a jail employee her definition of what a “good” judge means was probably the opposite of mine. Politics and criminal justice makes strange bedfellows, though, and I couldn’t argue with someone who was willing to help my client. Most judges would see the case as I did, fairly serious, so I had to find a judge who would “rubber stamp” the jailer’s and the prosecutor’s recommendation of time served. I set up the plea hearing before I met Robert because I knew he would jump at the chance to get out of jail. I also knew that I could cancel the plea hearing, once we got there, if Robert wanted a trial or if I discovered something in the police report that I needed to discuss carefully with Robert.

At the plea hearing two days later, I knew I had to get over a few hurdles before Robert could get out of jail. I had to play his cards carefully since these were serious charges, especially to a County Court judge who dealt only with misdemeanors. I looked at the police reports and shuddered when I read the details about Robert’s charges. The report said Robert was punching someone repeatedly when another person stepped in to try to stop the fight. According to the report, Robert then pushed the second person down and bit him on the abdomen, drawing a serious amount of blood. As I read about bites and blood, I thought how lucky Robert was that this wasn’t charged as a felony. What made me cringe the most wasn’t just the descriptions of blood on the floor and coming from Robert’s mouth. It was the the line on the “booking sheet,” which was filled out when Robert was admitted to jail, where it was typed, next to “medical conditions reported, those fateful four letters A-I-D-S. I wondered if perhaps one person with AIDS entered the fight and two or even three exited it that way. I also wondered if the victims of this assault, especially the one who was bitten, knew that the man with blood coming out of his mouth also had a lethal virus living in his body that was trying to get into theirs.

Now I knew why Trish wanted to get rid of Robert and why he was dying. I felt sick at the thought of helping this person go back onto the streets, even if it was just to die, because, even as a public defender, I knew that there was no one who the public would rather see in jail than an violet AIDS victim with a propensity to bite people who tried to break up his fights. To me, no one’s son or daughter should have to risk getting bitten by such a man, even if he had only a couple more months on this earth. Obviously if Robert had the physical strength to fight, and bite, he wasn’t going to be confined to a hospital bed for the rest of his short life. His homeless shelter address told me that he probably didn’t have insurance or a family to help him and that he’d most likely end up dying on the streets through which I walked to work.

But my job was to look out for Robert’s legal interests and I could lose my license, and my ability to earn money, if I didn’t do my job. The system is set up so that I have to win if I can, and if I don’t play to win, the system is merely a sham and I’m merely a “public pretender.” Besides, I rationalized, if other people like the prosecutors and jailers did their jobs, Robert wouldn’t be going anywhere except back to jail where he obviously belonged.

Both of the prosecutors I spoke with about Robert’s case are decent men and, unlike some prosecutors, neither are lazy, self-serving bureaucrats. Still, I was pretty sure I could get Robert out of jail because I was armed with two things. I could tell them that the well-known Trish told me she wanted Robert out. The second thing I had going for me, as I tried to fulfill Trish’s wish to get Robert out of jail, was my word. I am not the best lawyer on our staff by far, but I work very hard, as most public defenders do, to safeguard my own credibility. I need to be trusted when I tell the prosecutors something and if I’m not my clients and me will pay for it quickly. Perhaps some prosecutors confused my love of the adversarial process with a desire to win at all costs, but I tried hard to win while following the rules. Both of the prosecutors I spoke with trusted me, as I did them, so I knew when I told them what Trish told me, they would listen and believe me. After all, Trish was on “their side” and they knew I wouldn’t dare to lie about something that could be check up on through a quick phone call.

Both prosecutors were probably aware of Trish’s motives in wanting Robert out of jail. There was the overcrowded jail, the extra expense and potential liability of incarcerating a very sick AIDS victim. However, more importantly, there was a new law, passed just last year, that made them nervous about people dying in jail. After a couple high profile police shootings of civilians by Omaha police officers, State Senator Ernie Chambers had pushed through a new law that required a grand jury to investigate the death of any person who died “in state custody.”

I don’t think anyone involved in Robert case was worried about the conclusion of such a probe if Robert died in jail. They were probably motivated instead by a bureaucratic instinct to “cover your ass” and avoid the potential risk of having someone from the outside, armed with the “if it bleeds, it leads” news media, to investigate alleged wrongdoing. It was wrong, but they probably did a quick cost-benefit analysis. Any trouble they could get into by letting Robert out of jail was outweighed by the possible risk of a grand jury probe and possible lawsuit if Robert expired on their watch.

An instinct for self-preservation led these usually honorable bureaucratic actors to want to “pass the buck” and risk putting Robert back on the street where he could kill someone rather than leaving him in jail where his condition could lead to a lawsuit against the state. Money talks and no one wanted to be the one who triggered a grand jury probe or a costly lawsuit, even though avoiding this meant a risk to the very people the state was sworn to protect.

The first prosecutor I spoke with read the police report and wisely wanted to keep his own hands clean. He was fairly new on the seniority list and, when he heard me mention Trish’s name and position, suggested that I go talk to someone over his head. When I did, the second prosecutor cringed just as I did when he read the report. He was in a hurry, as usual, and didn’t look closely enough at the report to see the word “AIDS” that was the driving force behind Trish’s wish for Robert to get out of jail. He was undoubtedly swayed by the wishes of the jail official, but wondered aloud, “why didn’t she call us?” Never missing a chance to get in a subtle slam to my constant adversary, I said, “well, maybe she knew who to call to get it done today.” He smiled, and then matched my own sarcasm with, “like I said, why didn’t she call me.” I let him have the last word, since I couldn’t think of a non-juvenile comeback quickly enough.

Still, this prosecutor knew that I had never given him a reason not to trust me and that if I was making this up I would be in all kinds of professional trouble. He didn’t want Robert to die in jail either, but obviously didn’t want to reward him for having AIDS and a willingness to bite. The prosecutor offered Robert a deal that I suspected he would take: ten days in jail with credit for the five he’d already served. Robert and I spent about two minutes together before he entered his plea of “no contest.” I told him that he had a right to a trial and that he could get six months, but would probably get only ten days. As I suspected, the hurried judge sentenced Robert to ten days in jail, as the prosecutors left out the gory details as they told him about the facts. After he was sentenced, Robert quietly laughed and then genuinely thanked me, even apologizing for the nasty messages he said he left on my voice mail. I made a mental note to delete them before I even heard him call me names. I already felt bad enough about the outcome of this case. Hearing Robert call me names and tell me he wanted a “real lawyer” would not do me any good and would just make me feel worse about seeing him walk out of jail with a lenient, ass-covering, politically-motivated sentence. I didn’t care what he called me really; I just hoped he didn’t bite anyone else in the last few months of his life.

Most days I felt good about being a public defender and found a lot of good things to fight for. Robert’s case, however, was one of those cases in which doing my job went against my instincts. I didn’t have long to feel guilty, however, as there were four appointments and five new files waiting for me when I got back to my office. I also had two daughters waiting at after-school daycare who needed both a father with a good job and a father with a conscience. This was a case where I felt like I had to do what I did as part of my job. I didn’t see any other way I could have done it and not been operating outside of my role, where I could get in professional trouble. Still, this was a story that I would remember, not because it made me feel proud or sympathetic to my client, but because it made me feel guilty about what I helped accomplish. I helped my clients get out of jail in the name of helping someone pass the buck and pass a risk back into society. I criticized others for passing the buck but this time I was along for the ride. All I could do was hope that Robert didn’t sink his teeth into anyone else and that when he died he did so without taking anyone else with him.

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