Friday, March 28, 2008


Sam’s life had been consumed by alcohol. Before I met him at the jail, I pulled his record and saw a line of alcohol-related cases stretching back twenty years, to the early days of the record-keeping system. Nothing on his record was very serious, however. I saw a several open container of alcohol fines, a couple drunk driving convictions, some liquor in a public park charges, and many other small-time misdemeanor offenses. I knew Sam was no stranger to jail, but that he was also not the type to hurt you, at least intentionally. On paper, he looked like a man who liked to drink and had nurtured this love over many years.
Part of the reason I drew this conclusion was the fact that Sam was currently in jail on two separate cases, both involving alcohol. The computer (that I had come to rely on) told me that several months ago, Sam was ticketed for third offense drunk driving. When he failed to appear at his arraignment hearing, the judge issued a warrant for his arrest. The warrant was in effect for a few months until one day when Sam was seen stumbling down the street with a 40-ounce bottle of beer in hand. When he was ticketed for this new charge of having an “open container”, the police ran a record check on him, saw the warrant, and arrested him. The judge then set Sam’s bond for each case at $1000 cash, thinking that because he had been missing for a few months, Sam must have been the type of person who had to be escorted into court by a deputy sheriff. I noticed, however, that, other than this latest charge of failing to appear in court, Sam had been pretty regular about both breaking the law and about coming to court to face the music. He was an old dog, but I assumed that he had learned a new trick or perhaps was just getting forgetful in his old age.
When I went to the jail to meet Sam and five other prisoners, the place was packed. Douglas County- like a lot of other counties- was in the process of building a new jail since the old one was way beyond capacity. Because of the amount of attorneys visiting their clients that morning, Sam and I had to meet in the “overflow area” which was simply three cubicles, separated by two foot wide walls of glass. Each small cubicle had a table in the corner with two of those cheap plastic patio chairs next to it. I hated having to meet with clients in this area because sound echoed off the surrounding concrete walls, making it difficult to hear and offering little privacy. Like a lot of other things, I found that I soon grew used to it and soon was almost yelling, so that my client could hear me over the accompanying echo.
Sam was a black man, about sixty years old, but he looked to be in his seventies. His curly hair was a dull gray and his skin appeared slightly yellow with age, or perhaps drink. He was in good spirits though, and seemed happy to finally talk to his lawyer. To my surprise, he was already dressed in the white jumpsuit of a prisoner who had made “trustee” instead of the typical orange jumpsuit of most of my clients.
“How are you holding up in here?” I asked.
“I’m doing alright.” Sam said. “I’ve been here before, but it’s been awhile.” Grabbing his white denim shrit, Sam said, “I made trustee and that’s a lot better than sitting around all day with those kids.”
I told Sam about the charges, the penalties he faced, and everything else that I had learned to say “upfront” in an interview. Sam listened as I explained that while he faced up to a year in jail on the third offense drunk driving charge, the judge would likely give him ninety days in jail if he decided to plead guilty to it. “The problem,” I told Sam, “is that if the judge doesn’t give you probation on the drunk driving charge, the law says you have to lose your driver’s license for fifteen years.”
I went on to tell Sam that if he was sentenced to a term of probation, he would only lose his driver’s license for one year, but also that it would be difficult to convince a judge to sentence him to probation. Sam seemed to understand as I told him that he had not received probation on his last drunk driving charge several years ago and that most judges- after looking at his record- would conclude that he would be unlikely to complete it successfully.
I don’t know why I started off talking to Sam about the penalties he faced. It’s obviously something that needed to be discussed at some point, but for some reason, at this stage of my legal career, I started off every interview by talking about the penalties, the way a judge began accepting a plea of guilty. Looking back, I probably did it because at this point I was only a few months past my swearing in ceremony and I was still learning the penalties myself. Saying them out loud helped me practice and also informed my clients about their worst case scenarios.
If I had Sam’s case to do over again, I would have told started off differently. I would have asked him upfront whether he wanted a trial, and gathered more information from him before I told him the truth about almost every third offense drunk driving: If you were willing to accept a fifteen year revocation of your driver’s license and a $600 fine, you typically only had to serve a week or so in jail before the judge sentenced you and sent you home on “house arrest” for the remainder of your 90 day jail sentence.
Without even realizing it, I was telling Sam what he would have to do to get out of jail before I asked him whether he should have been in jail in the first place. At the time, I hadn’t yet realized that most people who were stuck in jail on misdemeanors could not stand to not know when they were getting out. The judges told them what the worst case scenario was, but they wanted to know when they could hit the streets again. Even if they were innocent with an airtight alibi, most people who were in stuck in jail and unable to post bond would plead guilty to just about anything as long as they had a reasonable chance of getting out within a few days.
But I didn’t know this at the time, and, because of this, I made a mistake that I would not find about for weeks. The mistake I made was telling a person who was no stranger to jail that if just pleaded guilty, he could be going home in a few days. While I had not meant to tell him this, Sam understood me to say that all he had to do was say “guilty,” pay $600 and stop driving for the next fifteen years. The very first thing I should have said was, “Did you do this?,” but I didn’t.
We got to these questions eventually, but by then Sam had probably focused exclusively on my comment that if he pleaded guilty he could be going home in a few days. I first asked Sam about what happened when he was picked up with the beer bottle in his hand. His memory was fairly clear about this. After all, it was only a few days ago and he had gone straight from that street to this jail. But as he talked, I heard him speak very slowly, slurring his words slightly, as if a lifetime spent holding similar glass bottles had left him permanently scarred with the symptoms that most drinkers felt only temporarily.
When I asked him about the drunk driving charge that the computer told me he was ticketed for several months ago, Sam seemed puzzled. I told him the address, which was in his neighborhood, but he still seemed puzzled. I asked him if he owned a car and he told he “yeah, it’s at my house, but I ain’t drove it in awhile.” When I asked him how long “awhile” was, he said, “coupla months.” When I asked him if he had been driving it in October, when the ticket was issued, he said, “Yeah, I was driving it back then, but I just don’t remember getting no ticket.” “I guess I must have,” he continued, “but I musta forgot about it or somethin’.”
I asked Sam what he wanted to do, but, like a lot of my clients, Sam simply said, “I don’t know… what do you think I should do?” I told him I couldn’t’ tell him what to do- that it was his life- that, like every other person I represented, it would be his decision about whether to accept a plea bargain through a guilty plea or to have a trial. I told him that I would talk to the prosecutor, see what the prosecutor would offer for a sentencing recommendation, and then Sam could choose between the two options.
“It’s like ‘The Price is Right’”, I told Sam. “The plea offer that they’ll give you is like the prize that’s right in front of you. It’s pretty much a sure thing in front of this judge.” “Having a trial,” I told him, “is like what’s behind Door Number Two. It may be better than what they’ve offered you, but it may be worse. I don’t know enough about the case yet to tell you which way I think you should go. But it’s not my call. It’s not me that has to live with the decision. It’s you. So you get to decide. I love to have trials, but I don’t like to take chances with your life unless you want me to, and I don’t want you to take a plea deal if you really want a trial. When I find out some more about your case, I can tell you which way I would go, but you’re the one that’s go to live with it, so you’ll have to decide.”
I had other clients to see and lots of work back at the office, so I told Sam that I would I’d see him in a couple weeks at his pretrial hearing, that in the meantime I would be reviewing the police reports and talking to the prosecutors about a plea offer. When he shook my hand he nodded at me respectfully and called me “Mr. Tarrell.” I was only a few months past the bar exam, but it felt good to have a client trust me so much and appear to feel comfortable leaving the responsibility for his future in my hands. I liked Sam, but I couldn’t believe a person could receive a ticket for drunk driving and then forget about it. Still, though he appeared to be a bad drunk, he didn’t seem like a mean one. He had killed a lot of brain cells, but- unlike a lot of my clients- he hadn’t blamed anyone else or whined about the predicament that he appeared to have placed himself in. I felt sorry for Sam but I knew that it would be tough to win a jury trial since the jury could see- as I had- that Sam was old, forgetful and probably always affected by alcohol, whether it was in his system or not.
Two weeks later, it was pretrial hearing day in County Court. Although this sounded official, it was really just an attempt to give all defendants who were charged with “non-petit” misdemeanors- that entitled them to a trial by a jury- a chance to give up this right by either pleading guilty through plea bargains or waiving this precious right and setting the trial before a judge. County judges and prosecutors hated jury trials. In the two years before I started at the Public Defenders Office, prosecutors had lost ten jury trial in a row. This streak was broken shortly before I started, but the prosecutors soon began offering generous plea bargains for any defendant who pushed a jury trial.
Judges hated jury trials even more than prosecutors. There were twelve County Judges and thus it worked out perfectly for each judge to have a “jury month” where each defendant who was arraigned in that month became that judge’s responsibility. While this seemed like a efficient way to deal with jury cases, anything resembling effectiveness, or justice, was soon lost in the process. Because jury trials theoretically required much more time than “bench” or judge trials, the judge was scheduled an entire month away from their regular court duties to hear the criminal jury trials that arose during their jury month. From outside, this process made sense, but those of us inside the system saw how quickly Lord Acton’s famous quote that “all power corrupts and absolute power tends to corrupt absolutely” came into play. Judges were obviously given a lot of power, but jury trials acted as a check on this power since it was the jury who determined guilty or innocence.
Judges had another type of power in jury trials, though, and a strong incentive to use it corruptly, especially in Douglas County Court. Judges obviously were given the power to punish or sentence any defendant whom the jury found guilty. Judges whose jury cases were all resolved through plea bargains before trial were allowed an entire month off. Of course, the theory went, in a city as large as Omaha, there would be at least a few jury trials each month, right?
Wrong. In the first two years that I worked in the Public Defender’s Office, I was the only attorney in our office to take his client to a jury trial. In the same twenty four month period, there were a total of three criminal jury trials held, meaning that in a city which prosecuted approximately 40,000 misdemeanor cases per year, only an average of 1.5 per year were asserting their right to a trial by jury.
While these statistics are troubling, it was more troubling to see the lengths that both judges and prosecutors would go to to avoid jury trials. Prosecutor typically avoided jury trials by proposing plea offers that defendants couldn’t refuse. To allow a defendant a constitutional right to a trial by jury, the charge in Nebraska had to carry up to one year in jail, a $1000 fine or both. The United States Supreme Court said that anytime a defendant faced more than six months in jail, they had to be afforded a jury trial. However, under Nebraska law, the next highest punishment level beyond exactly six months in jail was one year. In short, if you qualified for a jury trial, you were looking at up to a year in an orange jumpsuit.
If you were charged with a crime but had not yet been in jail, and you were facing at least one year in jail, would you say no to a plea bargain that involved the prosecutor telling the judge to sentence you to pay a fine of $100? If you were in jail and the prosecutor proposed a plea bargain that involved telling the judge that you should go home today, could you say no and push the case to trial, knowing that you faced at least one more year in jail? If a prosecutor told you, “I’m offering to recommend a $75 fine, but if you want a trial, I’ll ask for a year in jail” can you honestly say you would take that chance with your own life? My clients almost always received plea offers like this that were almost impossible to refuse. Only rarely did they say no and push their luck, even when the case looked very weak. Can you blame them?
Of course, there were also politically charged cases- that involved hot button issues such as domestic violence or drunk driving- that the elected prosecutor could not leniently dispose of without taking a risk at the next election. In cases like this, the prosecutors didn’t offer such great deals and defendants were tempted to demand jury trials since they didn’t have much to lose. How did those cases get resolved before trial so that only one or two misdemeanor criminal jury trials were held each year? Each County Court judge, most of who had come to expect an extra month off each year during their “jury month”, took care of the these cases in their own special ways.
Judges cannot have “ex parte” contact with the separate parties in a criminal case. That meant that a judge and a prosecutor, or a judge and a defense attorney, were prohibited from speaking about the details of a case unless a representative from the “other side” were present. I knew there were a lot of “off the record” and improper conversations between prosecutors and judges about my clients. Of course, proving this was a different matter. To prove it, you would need to either tape the conversation or else get the prosecutor to testify about having an illegal conversation with a powerful judge. In short, while I knew this went on, I could never prove it.
One reason I knew these improper conversations went on was that I witnessed another kind of improper conversation- involving the judge, the prosecutor and the defense attorney- shortly before almost every jury trial. It went something like this. In open court, the judge would ask each side whether they had reached an agreement. When the answer was “no”, the judge would suggest that a conversation “in chambers” and, of course, off the record, take place. Back in his or her office, the judge would ask for general details about the case and then ask each side what it would take to reach an agreement. When this didn’t work, the judge would then put pressure on someone to give up and settle. Since the judge was likely an ex-prosecutor herself, she would likely turn to the defense attorney and firmly threaten, “if you go through with this trial, I’m going to give your guy a year and send him to the penitentiary.”
This was obviously an improper thing to threaten, since, at this point, the judge knew next to nothing about the case and was simply his office, and the maximum penalty, as leverage to be able to spend the next month away from this office on the golf course. Sure there were times when the judge yelled at the prosecutor too, but since the prosecutor represented the “people” it was almost always the defense attorney, the party who represented the actual person, who was threatened into submission. Shortly after this, most defendants caved in and plead out after their attorneys conveyed the judge’s threat in a hushed whisper. Incidentally, the building where these conversations and the resulting guilty pleas took place is called the “Hall of Justice.”
Once I tried to stop this sickening cycle by hiding a tape recorder in my suit pocket, so I could prove to the press and the Supreme Court how Douglas County Court judges were upholding their oaths. My boss vetoed the idea, however. His years of experience probably saved me from losing my bar license. He told me that such behavior by a lawyer toward the judiciary is “unethical.” To me, it seemed immoral to stand still while this went on, but I knew that people who stood up against powerful, immoral people were unlikely to be believed and likely to be labeled as “unethical.” I took his advice and put my tape recorder- that I bought to record learned professors in law school- away to gather dust on my shelf. I wanted to keep fighting, but also wanted to be sure that I lived to fight another day and retained my ability to earn a living, even if it was just a third of what that same judge was making.
I waited in the courtroom for Sam on a Friday morning. Sam’s pretrial was one of ten that I was assigned to cover in this courtroom that day, and I had four other hearings scheduled in other courtrooms as well. I was learning a lot about criminal law, but I was having to do it “on the fly,” juggling trials, appointments, pleas and those incessant phone calls from the jail. In this rush, I had not gotten a chance to speak with the prosecutor about Sam’s case and a possible plea bargain. This wasn’t a high priority to me, however, because the prosecutor I was dealing with typically didn’t offer very favorable plea bargains. I knew that by requesting a jury trial, and thus allowing Sam’s case to be assigned to a different prosecutor, I could probably get Sam a better deal than what would be offered today.
My plan was to set the case for “voir dire,” or jury selection, see what the new prosecutor would offer Sam and allow him to choose between a trial and a plea bargain. I had reviewed the police reports, read about how the police pulled Sam over for no tail lights, how they smelled alcohol, put him through some field sobriety tests, and then arrested him for drunk driving. I scanned through the multi-page documents that I’d copied on the copier outside the prosecutor’s office, and saw that Sam had signed the required forms and that his breath test was well over the legal limit, at .14 grams of alcohol per 210 liters of his breath, as prohibited under Nebraska law.
Seeing that this was pretty much an “open and shut” case, with very little to challenge, I counted on meeting Sam at the jail on my next “jail day” and seeing what he wanted to do. I dind’t like to rush these conversations, even when I was busy, but the amount of clients I was given made all of us try to work efficiently, even as we tried to bring effectiveness to the assembly-line justice system that was Douglas County Court.
When the deputy told me Sam would be the next prisoner coming into the courtroom, I whispered Sam’s name to the prosecutor so he would (efficiently) have the file ready when Sam came in. The prosecutor, a man twenty years my senior, whispered back, “If he wants to plead to the drunk driving, I’ll enhance to a third, but recommend the minimum, 90 days.” He continued, “He’ll lose his license for fifteen years, but he’d be done in about three weeks.”
“I’ll go run it by him”, I said as I hurried out to be able to talk to Sam as he was escorted by a deputy down the long hallway leading to the courtroom. As I walked, I did the math in my head. Ninety days in jail translated into sixty-two days, with credit for good behavior. Sam had already served thirty seven days, meaning that he’d be going home in just twenty five more days if the judge went along with the sentencing recommendation. I wondered about the possibility of getting house arrest, but then remembered this judge rarely approved it. I would ask about it, but I knew getting it was a longshot.
As I turned the corner, the brown-shirted deputy was leading Sam through the hallway toward me. He was still in the white trustee’s uniform, but his face held more of a healthy glow than the last time I’d seen him. I was short on time, since the judge was waiting for Sam to be brought into court, but I am also ethically required to tell my clients about every plea offer that is proposed, since it is their right to choose and their life that will be affected. This “last minute” offer didn’t allow me much time for discussion so I would have to talk fast in case Sam wanted to take the deal today. Looking back, I probably should have acted on my instincts, even if the went against my ethical obligations. I should have waited to tell Sam about this offer until my next visit to the jail. After all, he wasn’t going home today, so there would be plenty of time to discuss it while sitting down, so that it didn’t feel so rushed and so unprofessional. But I didn’t. I had many other clilents to see and Sam’s case looked so open and shut. I decided to talk fast and see if Sam wanted to get the plea over with today.
“Sam, they’ve offered you a deal,” I said. “If you plead guilty to the drunk driving, they will dismiss the rest of the charges and will try to turn it into a third offense. If they’re successful, and they probably will be, you’ll be you’re looking a maximum of one year in jail. But the prosecutor is going to tell the judge to take your license for fifteen years and give you ninety days in jail. That’s the minimum. If the judge follow it- and he probably will- you’ll be going home in twenty five days.” Sam’s face lit up, as if a question had been answered in his mind or a weight lifted off his back.
“Now you could get a year,” I continued, “but you probably won’t. You’ll probably get to go in about twenty five days, but you can’t drive at all for the next fifteen years or else it’s a felony that can put you in prison for up to five years.”
“That sounds pretty good,” Sam smiled.
“You can’t drive at all for fifteen years,” I repeated. “You think you can live with that?”
“Yeah, I can do it. I can live without it.” Sam said. His face still held the glow that it acquired moments earlier, after the words, “home in twenty five days.”
“I might be able to get you probation,” I warned, “if you give me another week to run it by another prosecutor, but you’ll have to quit drinking.” I wasn’t sure that I could really do this and I wasn’t sure Sam could either, but fifteen years sounded like such a long time.
“No, no, I’ll just plead go on ahead and plead guilty, if you’re pretty sure the judge will send me in a few weeks.”
“I think he probably will, but once you get there, you won’t be able to drive away for a long time.”
“I know. I won’t be driving.”, Sam said. His mind was made up. Like a lot of my clients, it appeared that Sam could live with jail time as long as he knew the end of the sentence was coming soon. It was not knowing when they got to go home that drove people in jail, awaiting trial, the maddest.
As expected, after the judge heard the prosecutor’s recommendation, he sentenced Sam to ninety days, credit for thirty-seven, meaning that Sam had just a few weeks before he got to go home. AS required under Nebraska law, the judge also a fifteen year license revocation.
Sam seemed happy and I felt that way too. After all, my client was going home soon and I knew the allegations in the police report would have been difficult to overcome in a trial. I wrote “20 minutes”, “90 days” and “close” in the time sheet section of Sam’s file and headed back to the office, satisfied with the punishment that fell on Sam’s shoulders and feeling fine about the way I represented him. I stuffed his file in my “out” box and picked up the new ones that had been added to the “in” box.
Several weeks later, on a Friday afternoon, I was at my desk interviewing a client. As I talked, listened and made notes, I also noticed the phone ring even more often than it normally did. Since I was with a client, I let it ring through to my voice mail, thinking that it was probably another client stuck in jail, with drugs in his system and no one to call, for free, except me.
Then the secretary knocked on my door. This surprised me because she had seen me escort the client who was sitting before me back to my office for the interview just a few minutes ago. What could be so important that couldn’t wait ten minutes for me to finish the interview? Why would one client’s case be more important than the person who showed up for his interview, expecting and deserving of my full attention? I rolled my eyes and told her to come in.
“Mike Tesar wants you upstairs”, she said. “They need you to come up to help a guy withdraw his plea.”
I was confused, thinking that this probably involved one of my clients who missed his or her trial date and then showed up late or on a different day to try to cancel the bench warrant that issued when they missed their court date. I wanted to say, “Can’t it wait ten minutes” but I knew that if court were still in session, past four on a Friday afternoon, that it would be closing soon. Still, since Mike Tesar was the Chief Deputy City Prosecutor, it was my instinct to be skeptical of what he wanted to do and to want to disobey any order he gave me.
“Withdraw a plea?” I asked. “Why do they need to do it now?”
“Tesar called and said Chris Liecks found out that someone plead to something on a wrong party case,” she said. “Tesar said he tried to call you but couldn’t get an answer. He said he’d call back and for you to pick up.”
When she mentioned the officer’s name, my interest was piqued. It was his job was to help people whose names had been falsely used by others. These “wrong party” cases typically involved family members who provided a relative’s name and information when the police asked them for identification or gave them a ticket. Sometimes they used the fake name so the police wouldn’t find out about warrant and sometimes they were used to simply avoid trouble in the future. Of course, when the relative whose name was falsely given was later arrested on the warrant that came out when the person missed court, the police could run a fingerprint check and hopefully determine who the culprit really was.
This problem was so widespread in Omaha that Officer Liecks worked full-time to straighten out the messes that resulted when people lied about their identity and provided a brother or sister’s name instead. Officer Liecks brought about the dismissal of a surprising number of tickets after he investigated these claims. Subsequently, Officer Liecks then brought about the arrest of a surprising number of family members who were then charged with both the original charges and with providing false information. For a person to get past the record checks that officers routinely ran when they issued tickets, they had to know the “vital statistics,” such as date of birth, and social security number, of the person whose name they were using. Family members were often the only people who knew this information and thus Officer Liecks usually didn’t have to look very far, after he found a “wrong party,” to find the right one.
With this in mind-, and without even thinking about Sam’s routine, long-forgotten case- I decided I had better take the next call, despite having a client in the room.
In a few seconds, Tesar called back. He told me he’d explain when I got up to court but that Officer Liecks found out, after an investigation that one of my clients plead guilty to a ticket that should have gone to his brother. “Do you remember a third offense drunk driving that you and I did a few weeks ago, at pretrials?” he asked. “The guy’s name is Sam something. If you can get up here Judge Caniglia will let us withdraw the plea and he can go home.” As I ran up to court, I reconstructed Sam’s case in my mind. Hadn’t that been a “no brainer” drunk driving charge with a client who couldn’t even remember getting the ticket?
When I got to the courtroom, only Officer Liecks, the prosecutor, Mike Tesar, the bailiff and Judge Caniglia were waiting for me. For some reason, I expected to see Sam too, but then I realized that there must have not been time to bring him over from jail, which was about six blocks from the courthouse.
“What we need you to do, Mr. Tarrell,” the prosecutor said, as I walked to the bench“is to make a motion to withdraw your client’s plea of guilty.”
“What’s going on?” I asked anyone and everyone.
Again the prosecutor did the talking. “Chris Liecks did a wrong party check and found out your client plead guilty to a charge that really should have been his brother’s. Judge Caniglia has agreed to entertain a motion to withdraw the plea. If you’ll make the motion we won’t object and we’ll move to dismiss so your client can be home for the weekend.”
I looked around, saw nobody was laughing, and knew he was serious. The bailiff looked at me and then at the judge, then she turned on the tape machine that recorded all County Court proceedings. The judge called out “State versus Sam Preston, CR03-24581.”
When I heard my cue, I simply said, “Your Honor, we move to allow the Defendant to withdraw his earlier entered plea of guilty.” When the prosecutor said “no objection,” the Judge granted the motion.
The prosecutor then set Sam free with the following explanation:“Your honor, we move to dismiss these charges based on Officer Chris Lieck’s investigation that took place after a family member called our office. Officer Lieck was able to compare the Defendant’s thumbprint to the one that was placed on the original ticket. After doing so he found out that it was actually the Defendant’s brother, now deceased, who actually received the ticket in his brother, Sam Preston’s name. As soon as this came to our attention, your honor, we asked that it be brought into court immediately and dismissed.”
I was speechless, but luckily the judge was not. He said these magic words, while writing on the mittimus that would soon be faxed to the jail. “The motion is granted. The charges stand dismissed.”
The room seemed to let out a collective breath when the thing that brought us together was completed. I thanked everyone, especially the prosecutor and the officer. I thanked the judge and was told that he was the only one of twelve judges who was still in the courthouse on this Friday afternoon. I kept asking, “How could this have happened?” and then saying “Thank God you figured it out.” Suddenly I had a new respect for a prosecutor that, up until that point, I had thought of as a hard-nosed, politically-driven person. I had always trusted and had a good relationship with Officer Liecks, but now I looked at him almost in awe.
“How did you figure all this out?” I asked, but he seemed to not want to take any glory, or even listen to me say thank you. He seemed a little bit upset, in fact, and I could not understand why. The three of us walked out of court and across the rotunda toward their offices. All the way, the prosecutor kept saying things like, “well, the system worked” and “that’s why we have Chris around.” When the prosecutor turned into his office, Officer Liecks turned to me, looking ready to talk about how this mystery was solved.
“Dave, that’s not quite how it happened,” he said. “Mike didn’t tell you everything. I looked into it because this lady called me to see if there were any warrants in her Uncle’s name. She said her father, Ray Preston- that would be Sam’s brother- passed away last week. She said that as Ray lay dying in his hospital bed,he kept going on about some tickets he got in his brother’s name. Apparently, Ray was not only using Sam’s name, but he was actually showing up for court and even going to jail as his brother. I checked on a few of Sam’s cases, and at least one of those was really Ray, using Sam’s name.
“Ray wasn’t like a lot of these people, who use a family member’s name and then get them in trouble,” he went on. “Ray was just borrowing Sam’s name and taking the punishment himself. Ray had a revoked driver’s license- fifteen years for third offense drunk driving- so if Ray could pass himself off as Sam, he was looking at a misdemeanor driving under suspension instead of a felony driving under revocation.
“Anyway, Ray’s daughter said when he started talking about warrants, they all thought he was talking crazy because of the medicine, but she thought she’d better call and make sure there weren’t any warrants in her Uncle Sam’s name. When I got to looking, I realized that not only was there a warrant but that Sam had actually plead guilty to the drunk driving charge. When I saw that he was still in jail on these charges, I told Tesar I wanted him out of jail. I figured this out about three this afternoon, but Tesar thought it could wait until Monday. He’d say stuff like, “are we really sure it’s not him” and “why don’t we check it all out on Monday and make sure it’s the wrong guy.”
“I told him I knew it was the wrong guy,” the Officer continued. “I knew as soon as I looked at the fingerprints. It wasn’t until I told him that if he didn’t get that man out of jail by the end of the day, I’d be turning in my badge. That’s when he picked up the phone and called you.”
I thought I was in awe of this officer before, but he now walked on water, as far as I was concerned. I had seen the pictures of the four llittle kids on his desk and I knew hat it wasn’t easy for a provider to hold so strongly onto principle that he was willing to put his livelihood at risk to remain true to his oath of upholding justice. After all the time I spent going up against police officers to try to keep my clients out of jail, it was amazing to me that one officer was so honorable that he put his own future at risk to ensure an innocent man was set free.
After Sam’s case, I never read a police report the same way again. I questioned my clients more thoroughly and checked each police report more carefully, to try to ensure that the mistakes I’d made in Sam’s case didn’t happen again. I listened to my clients more carefully, but not completely. After all, Am told me that he “must have” been driving. After Sam’s case, I focused more on evidence and less on admissions, realizing that it wasn’t the words of the defendant that demonstrated guilt or innocence, it was the evidence the state had the burden to present.
I would have liked to think the mistake I made in Sam’s case was in not pushing it to trial. I would like to think that if I made the officers who ticketed his brother look into Sam’s face, that they would have had to tell the truth and admit that this wasn’t the same guy. Yet I don’t know if they would have done so. I don’t mean to imply that they would lie or intentionally send an innocent man to jail I just know that officers make a lot of arrests and trials are often held months after the initial arrest. They review the reports before trial and know what to say so that their side will win. I don’t know and can’t expect that all officers would be as thorough and as principled as Officer Liecks. After all, I was Sam’s defender and even I missed the truth about his case.
On Monday morning I checked the jail screen on my computer and saw that Sam had been released from jail the previous Friday at 5:32 p.m. I left a message with Sam’s niece asking how he was doing but I never heard from Sam again. I was glad for this, optimistically hoping that he was staying out of trouble. Yet I also wondered whether I was involved in any cases like Sam’s that had a different ending, where the truth never saw the light of day and the innocent person stayed in jail. In a way, I wanted to walk away from the system after seeing- and participating in- its flaws. But I also knew that I had a responsibility to clean the system as much as I could and to learn from mistakes, trying to make sure they didn’t happen again.

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